Datasets:

MahmoudAly

/

LexAbSumm

like 1

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1979 and lives in La Porrosa (Chiclana de Segura, Jaén).", "A. Background to the case and placement of child G. in a children's home", "6. The applicant, the daughter of a Guinean father and a Spanish mother, was living at the time of her daughter G.'s birth, on 3 October 2001, within a mutually supporting extended family. The family unit comprised her grandmother, her great-uncle (her grandmother's brother, a lawyer by profession), and the applicant's other two children. Also living temporarily in the family home (two adjoining houses) were a Guinean priest and the godfather of two of the applicant's children. The property is situated on an olive-producing farm belonging to and run by the applicant's grandmother. The applicant is also regularly hired by the Government of the Autonomous Region of Andalusia as an agricultural worker, an activity which she combines with other farm work, particularly grape-picking in France.", "7. In order to avoid having to take her two eldest sons to France with her, the applicant appointed her great-uncle to look after them until her return. The two children are officially under the guardianship of the Jaén provincial office and placed in the foster care of their mother's great ‑ uncle, within the extended family. The applicant has not objected to this situation, as the children live in practice with her and the remainder of the extended family on the farm.", "8. On 23 August 2005 the applicant and her partner, accompanied by their minor daughter G., visited the social services department of the municipality of Motril (Granada) looking for “work, food and housing”. The same day – at the request of A.L.N., a social worker with the child protection services of the Granada provincial office for equality and social welfare (hereafter “the provincial office”), who had called the police because of the applicant's agitated state – child G., then aged three years and ten months, was taken away from her mother and placed in the Nuestra Señora del Pilar children's home in Granada. Her mother was taken to hospital on account of her nervous state following the separation from her daughter.", "9. On 25 August 2005 the provincial office began the administrative procedure to have G. declared legally abandoned, and issued a provisional declaration to that effect. The decision cited, among other factors, the applicant's lack of funds (her state of extreme financial hardship), the child's situation and lack of hygiene, the fact that she was inappropriately dressed for the summer weather, her dry skin, marked with scars and scratches, and her anxiety about food. The provincial office assumed guardianship of the child, ordered her placement in the aforementioned children's home and informed the applicant that she could apply for legal aid if she wished to appeal against that decision to the first-instance judge.", "10. On 26 August 2005 the applicant requested the Motril social services department to return her daughter to her. She also visited the department the following day and again on 30 August. The child protection services informed her that contact with her daughter would not be recommended until such time as the applicant began psychiatric treatment. The applicant claimed that the social workers had offered her money (see paragraph 16 below).", "11. A report dated 29 August 2005 prepared by the Nuestra Señora del Pilar children's home stated that the child's “overall condition [was] acceptable”, noting simply that her skin was dry, with minor scars and cuts caused by scratching. According to a subsequent report dated 1 September 2006 prepared by the San Ramón y San Fernando children's home in Loja (Granada) (see below), the child was suffering from atopic seborrhoeic dermatitis.", "12. On 30 August 2005 the applicant was informed that the provincial office was assuming guardianship of G. and that she was being placed in the Nuestra Señora del Pilar children's home in Granada. The applicant was also informed of the possibility of appealing against that measure to the first-instance judge. She was told that no contact visits with her daughter would be recommended until such time as she began psychiatric treatment. The mental health team told her on 5 September 2005 that she was not in a position to look after her daughter, but that supervised visits could be arranged.", "13. According to the “observation and initial reception” report drawn up by the San Ramón y San Fernando children's home in Loja on 30 October 2005, G. had been moved to the home on 14 September 2005. The applicant was not informed and did not give her consent. Some witnesses claimed that the child had been moved there on 13 September 2005.", "14. On 23 September 2005 the applicant requested the provincial office to transfer her daughter to the Linares (Jaén) children's home, which was closer to where the applicant lived.", "15. The last of three supervised meetings between the applicant and her daughter following the latter's placement was held on 27 September 2005. The meetings took place away from the children's home and were supervised by carers and by the police. The applicant stated that the other two meetings had taken place on 6 and 20 September 2005. According to the applicant's account, her daughter told her at one of these meetings that she had been taken to a house with a swimming pool. The applicant has not seen her daughter since.", "16. In a report dated 4 October 2005, social worker A.L.N. noted the applicant's inappropriate attitude – described as disrespectful, “violent” and aggressive – and stated that the applicant had attempted to harm herself and had had to be taken to hospital when her daughter was taken from her. A.L.N. said that the applicant had been informed of the steps likely to be taken to ensure her daughter's welfare on account of the applicant's lack of means. A.L.N. expressed the view that the temporary fostering of G.'s two brothers by the applicant's great-uncle should be discontinued on the (unsubstantiated) grounds that the latter was not suited to the task. She noted in her report that the applicant travelled every day to the vicinity of the Nuestra Señora del Pilar children's home, where the child protection services had put in place a provisional arrangement consisting of three visits supervised by carers and by the police, away from the home, “in anticipation of possibly violent conduct” on the part of the applicant. The social worker stated in her report that the applicant had been given an unspecified sum of money in order to travel to Majorca and to Madrid. According to the social worker, the applicant had at first asked for the money but then refused it, throwing it on the ground. She had subsequently asked for money again, this time to travel to Granada, but had returned it three hours later out of a sense of pride. According to the report, during the three supervised visits the applicant had encouraged G. to continue crying and shouting in order to get what she wanted, had constantly accused the professionals of not providing her daughter with the appropriate assistance, had spoken to her daughter in a compulsive and incoherent manner, had not accepted the visiting hours and had screamed when the end of the visits approached, threatening also to take photographs in order to publicise the situation in a television programme. Describing the applicant's conduct during her visits to the Nuestra Señora del Pilar children's home as “violent”, and taking the view that it was disrupting the child's stability and development, A.L.N. proposed suspending the visits and moving G. to a different home, the address of which should not be disclosed to the applicant.", "17. On 5 October 2005 the provincial office took a decision confirming G.'s provisional legal status as an abandoned minor and placing her in the San Ramón y San Fernando children's home in Loja (see paragraph 13 above). It was also decided to seek a court order suspending visits, and, pending the order, to temporarily suspend all communication between the applicant and her daughter, in the latter's interests, and not to provide the applicant with any information on G.'s whereabouts. The decision informed the applicant of the possibility of applying for legal aid should she wish to appeal against the decision to the first-instance judge.", "18. On 4 October and 22 November 2005 the applicant again applied to the provincial office seeking to have her daughter moved to the Linares children's home and requesting contact rights.", "19. Between 22 November 2005 and 31 January 2006 the applicant approached the provincial office on at least seventeen occasions asking to see her daughter. She complained of the lack of information concerning her daughter, and in particular of the refusal of the lawyer representing the provincial office to explain the reasons behind the declaration that her daughter had been abandoned. The applicant was not allowed any contact with her daughter and has not received any information about her since.", "B. Administrative procedure leading to declaration of abandonment and placement with a foster family", "20. On 27 October 2005 the Government of the Autonomous Region of Andalusia applied to the Granada first-instance judge no. 3 to have the contact visits suspended (a provisional decision having already been taken).", "21. On 2 November 2005 the administrative proceedings were stayed at the request of the Granada Bar so that a legal-aid lawyer could be appointed to represent the applicant. A lawyer was appointed on 20 January 2006 and made representations on the applicant's behalf on 23 January 2006.", "22. In a decision of 1 February 2006 the provincial office officially declared the child to have been abandoned, in view of “the poor prospects for improvement [of the family's situation] and hence for reunification of mother and child”, and decided to initiate the procedure for placing G. in pre-adoption foster care. The decision stressed (without citing any supporting reports) that the applicant's great-uncle was not a suitable candidate for fostering G., and reiterated the findings made in the previous reports. It also referred, without elaborating further, to the “mother's mental health” and her “moderately manic state”, and considered it significant that the applicant, on the numerous occasions when she had visited, “[had] displayed no interest, either orally or in writing, in the child's well-being”. The prohibition on contact visits was kept in place. The applicant was informed of the possibility of applying for legal aid should she wish to appeal against the decision.", "23. On 2, 6 and 15 February 2006 the applicant again requested the provincial office to allow her to visit her daughter and expressed her opposition to G.'s placement in pre-adoption foster care, arguing that the reasons given for taking her daughter from her had no basis in reality. On the last of these dates she reported the situation to the Spanish Ombudsman's Office.", "24. On 16 February and 2 March 2006 the applicant again approached the provincial office requesting contact with and information about her daughter.", "25. On 10 January 2007 the provincial office's protective measures committee upheld the provisional declaration that G. had been abandoned.", "26. On 22 January 2007 the social worker A.L.N. sent an e-mail to the Red Cross asking them to trace the applicant and to check on the situation of her fourth child, a baby. She stated that the applicant's eldest two children had been placed in foster care with one of the applicant's great ‑ uncles and that G. had “been adopted” by a family who were also prepared to adopt the applicant's baby. She estimated the latter to be around nine months old, noting that the applicant “[had been] pregnant over a year ago”. She said that the applicant had “undiagnosed mental health problems” and was likely to “be in France, with the baby and her current partner, a French citizen”.", "C. Judicial proceedings to appeal against the declaration of abandonment and the suspension of contact visits (no. 1278/05)", "27. On 31 January 2006 the Granada first-instance judge no. 3 decided to join the proceedings concerning the appeal against the child protection measures and the proceedings on the suspension of contact visits.", "28. On 28 November 2006 the applicant, represented by a lawyer, contested the legal declaration of abandonment adopted by the provincial office, claiming that she was living in France with her partner and receiving monthly payments of 836.87 euros.", "29. On 3 May 2007 a hearing was held before the Granada first ‑ instance judge no. 3 concerning the declaration of abandonment. The prosecutor responsible for minors requested the judge to uphold the declaration that G. had been abandoned.", "30. In a judgment of 18 May 2007 reiterating the arguments set out in the provincial office's decision of 25 August 2005 concerning G.'s abandonment, issued two years previously, the Granada first ‑ instance judge no. 3 rejected the appeal against the declaration of abandonment and held that the child could return to the family home if the family's situation improved. The judge upheld the guardianship order and the order placing the child in residential care. He stated as follows:", "“... 2. In the light of the submissions, it is apparent that when the authorities intervened there were ample grounds for declaring child G. to have been abandoned. It is clear beyond dispute from the administrative file that, whether as a result of ignorance, other impediments, lack of social skills or any other reason, including possible mental illness (although it should be said that the mother did not cause or seek to bring about this situation), the child was in a state of wholesale physical and psychological neglect. Her appearance was very dirty, she wore clothes that were inappropriate for the summer weather and her skin was dry and marked with scars and scratches. She said that she lived among the reeds ( en las cañas ), speaking of them as if they were her house; she also displayed anxiety about food and was receptive to any sign of affection. This provided ample justification for automatically placing her under guardianship and declaring her to have been abandoned. The child's situation is not new since both her older brothers are in foster care with a great-uncle owing to the risks to which they were being exposed. The file does not contain any objective evidence to suggest that the appeal [against the declaration of abandonment] should be allowed, particularly bearing in mind that a possible error could be damaging to the child, who deserves all possible protection, and that this consideration must prevail over any other interests.”", "The judge refused to put in place the schedule of contact visits requested by the applicant, on the grounds of “the child's lack of emotional attachment to her mother and [the fact that] the latter's violent conduct during the visits [was] disruptive to the child's stability and development.”", "31. Following an appeal by the applicant, the Granada Audiencia Provincial, in a judgment of 27 June 2008, upheld the impugned judgment. The court pointed out that the aim of the proceedings had been to uphold or overturn the decision by the administrative authorities declaring G. to have been abandoned. The child's placement in care could be reviewed in the course of the appropriate administrative or judicial proceedings, which the applicant could institute if her situation changed. The judgment upheld the prohibition on contact visits between the applicant and her daughter and the residential care order.", "D. Judicial proceedings concerning G.'s placement in pre-adoption foster care (no. 74/07) and the appeal against the placement order (no. 2188/07)", "32. On 1 February 2006 the provincial office submitted its report setting out the reasons for the proposal to place the child in pre-adoption foster care. The same day the proceedings were stayed pending the appointment of a lawyer for the applicant.", "33. On 2 April 2006 a couple was chosen as foster parents for the child. On 9 June 2006 the provincial office's protective measures committee began the administrative procedure to have G. placed with a foster family.", "34. On 14 February 2007 the provincial office ordered G.'s temporary placement in pre-adoption foster care, on the following grounds:", "“ On 25 August 2005 it was decided to issue a provisional declaration that the child had been abandoned, and a residential care order, on the grounds set out above.", "In view of the seriousness of the allegations against the child's mother, the fact that the father's whereabouts are unknown, the mother's provocative and aggressive attitude and the inconsistency of her statements on her visits to our departments, a report on her state of health was requested in order to assess the possibility of putting contact arrangements in place. On 5 September 2005 it was decided that the mother was not capable of looking after her daughter but that she could meet her under supervision.", "Three visits took place away from the centre where the child is living, under the supervision of carers and police officers. The incidents occurring during those visits, the fact that the mother is frequently seen in the vicinity of the home, her behaviour, the assessment of the mother-daughter relationship and the overall developments in this case led to a decision being taken on 4 October 2005 to suspend contact visits on a temporary basis and to move the child to a different home.", "The documents in the file show that the child's mother has two other children who have been abandoned and are under the guardianship of the Jaén provincial office, that no member of the extended family (up to the third degree of kinship) is able to take care of the child and that the great-uncle who was put in charge of the other two children, first on a temporary basis and then as a foster carer, is overburdened. The information in the file leads us to conclude that the prospects for improvement in the family's situation and reunification of the child with her mother are poor.", "The mother regularly complains to our departments about all kinds of irregularities on the part of the officials who are involved or have been involved in this case (health care workers, members of the judiciary, police officers, municipal social services, the protection service, children's homes, etc.), while at the same time refusing to sign acknowledgements of receipt, to submit the documents requested and to prove or seek proof that the information in the file is inaccurate. Furthermore, she denies all of the above as well as the failings identified, the risks run by the child and her own instability. She does not attend her appointments at the mental health centre. It is significant that in the course of her repeated visits she has never attempted to find out, either face-to-face or in writing, how her daughter is getting on.", "We are thus dealing with a child whose father cannot be traced, who cannot be taken care of by the person already looking after her two brothers, and whose mother – who appears to have another child under the guardianship of the French authorities – is once again pregnant. The prospects for reunification of the birth family in the foreseeable future are poor. All of the above considerations, in addition to the need for the child to live in an appropriate family environment and to avoid a prolonged stay in institutional care, justify continuing the procedure and making lasting foster care arrangements with a view to adoption ... .”", "35. As the applicant refused to consent to G.'s placement, the child protection services issued a proposal on 23 March 2007 for the foster care arrangements to be put in place by means of a court order, with the child being placed in temporary foster care in the meantime.", "36. On 2 October 2007 the applicant, represented by a lawyer, brought judicial proceedings to appeal against the decision of 23 March 2007 to place her daughter in pre-adoption foster care.", "37. After a long series of procedural setbacks, a hearing took place on 28 July 2009 before the Granada first-instance judge no. 16. The applicant objected to any form of pre-adoption foster care for her daughter and instead requested that G. be placed in permanent foster care with the applicant's great-uncle and that she should have contact rights. The applicant also challenged the declaration that G. had been abandoned, approved by the first-instance judge no. 3.", "38. The prosecutor responsible for minors supported the applicant's appeal against G.'s placement in pre-adoption foster care.", "39. In a judgment of 4 September 2009 the Granada first-instance judge no. 16 upheld the foster care arrangements proposed by the child protection services on 23 March 2007. He did not allow the applicant's great-uncle to appear as a witness, and rejected the alternative proposal to place the child in foster care with him, taking the view that the applicant's great-uncle was not a suitable candidate for fostering children. As to the declaration of abandonment in respect of G. issued by the Granada first-instance judge no. 3 and upheld on appeal, the judge did not examine it and pointed out that the decision of the first judge was final and that proceedings would have to be brought in the event of a change in circumstances. However, with regard to the alleged change in circumstances since the time of the declaration of abandonment, the judge noted that the applicant had stated “[that she] grew olives, worked on the land and worked for part of the year in France, was a good mother and could live with her children, was capable of it and had family very close by”. The judge took the view, referring to “technical reports” which he did not cite, that “this testimony, given by members of [the applicant's] family and neighbours, [did] not by itself demonstrate that [she was] once again competent to raise the child”. The judge noted the following:", "“... the child, who is almost eight, has had no contact with her mother for several years, as contact visits were suspended following a court order. All this indicates that in the interests of the child the most suitable guardianship measure is the one already adopted, consisting of pre-adoption foster care, notwithstanding the fact that the prosecutor responsible for minors supported the applicant's claims and requested that [her] objections be taken into account.”", "40. The applicant, represented by her lawyer, appealed against the judgment of 4 September 2009.", "41. The prosecutor responsible for minors supported the applicant's appeal.", "42. On 18 December 2009 the applicant submitted a psychological expert report stating that she was capable of looking after her daughter.", "43. In a judgment of 18 June 2010 the Granada Audiencia Provincial upheld the first-instance judgment. It pointed out that the object of the appeal against the foster care decision had not been to challenge the declaration of abandonment, but to demonstrate that the reasons for it had ceased to exist and that a radical change had occurred in the behaviour, habits and lifestyle of the birth parents which justified returning full parental responsibility to them, and at the same time to provide irrefutable evidence that the child's return to the family would be clearly beneficial to her. The judgment referred to the assessment of the evidence by the first-instance judge no. 16 and noted, among other things, that the psychological expert report submitted by the applicant on 18 December 2009 contained only information provided by the applicant herself, such as her supposed ability to look after her children, without explaining why two of her other children had been placed in foster care with her great-uncle. The judgment further observed that the report, while stating that the applicant did not suffer from any mental illness or disability, had noted her impulsive and irascible nature. Likewise, notwithstanding her assertion that she spoke three languages, the applicant had not attempted to make use of those skills, living in a situation of social and professional isolation which forced her to emigrate or move around in order to find work. In any event, the Audiencia Provincial took the view that there was no “convincing evidence in the report that the risk of a recurrence of the lack of attention to her minor daughter which led to the declaration of abandonment [had] ceased to exist”. The court considered that the witnesses called by the applicant to testify to her capacity to have her children living with her “[had] not provide[d] any evidence of her social and professional stability and of an absence of risk for the child, still less [had] they demonstrated how the child would benefit from being returned to her original family”.", "44. The applicant appealed on points of law. The appeal was declared inadmissible by the Granada Audiencia Provincial on 27 July 2010.", "45. Relying on Article 15 (right to physical and moral integrity) (in relation to her daughter) and Article 24 (right to a fair hearing) of the Constitution, and on Articles 8 and 14 of the Convention, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 27 October 2011, served on 3 November 2011, the Constitutional Court declared the appeal inadmissible as lacking the special constitutional significance required by section 50(1)(b) of the Constitutional Court Act.", "46. In the meantime, in decisions dated 18 October and 1 December 2010, the Granada first-instance judge no. 16 confirmed the status of G.'s foster parents as her pre-adoption foster family.", "47. A follow-up report on the foster family dated 29 March 2011 noted that G. was fully integrated within the family, with whom she had been living since 16 February 2007, and within the extended family. The report noted that G. had attained the level of physical and motor development appropriate for her age and had made progress in terms of her maturity and adaptation as well as her ability to concentrate, and that there had been no deterioration in her school performance. She was in a normal and secure environment within her foster family, who met all her material and emotional needs.", "E. Adoption proceedings (no. 599/2011) and proceedings to appeal against the child protection measures (no. 156/2010)", "48. On 11 April 2011 the Granada child protection services submitted a proposal to the Granada first-instance judge no. 16 for G. to be adopted by her foster family.", "49. On 14 April 2011 the judge declared the adoption proceedings open.", "50. On 14 June 2011 the proceedings were stayed at the applicant's request. On 13 March 2012 the same judge set case no. 156/2010 down for hearing on 24 April 2012.", "51. In a report of 28 September 2012 addressed to the Government after they had been given notice of the present application, the Granada child protection services summed up the background to the separation and G.'s placement in the children's homes and subsequently in pre-adoption foster care, reiterating the arguments set forth in the original report of 4 October 2005 (see paragraph 16 above) and noting, among other things, “the defiant and provocative attitude of the applicant during her numerous visits to the child protection services, her persistent complaints against officials of the health services, the police, the social services and the protection centres ..., refusing to submit the documents requested by our departments and showing no interest in the child's well-being”. They also referred to the report of 25 March 2011, stating that “the emotional and family ties that have been created and continue to develop must be reflected in and consolidated by the legal situation, with the result that adoption would be the most appropriate means of ensuring the child's needs and interests”.", "52. The Court was not informed of the subsequent progress of the adoption proceedings. According to the information provided by the Government on 5 February 2013, the child had not yet been adopted.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "56. The applicant alleged that she had been deprived of all contact with her daughter and separated from her without valid reason. She maintained that the administrative authorities had decided to place her daughter in pre ‑ adoption care before the domestic courts had even ruled on whether she had been abandoned. She relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "...", "B. Merits", "1. The parties' submissions", "(a) The applicant", "64. The applicant contested the reasons given by the administrative authorities for taking her child away from her. She submitted that she had always worked and that she and her partner had sufficient income to meet her daughter's needs.", "With regard to her daughter's health, the applicant submitted that since September 2006 at least, the administrative authorities had known that G. had atopic seborrhoeic dermatitis (see paragraph 11 above); she and her two other children also had very dry skin in spite of treatment with various creams. In her view, therefore, the authorities' acceptance of that argument in approving G.'s placement with a foster family had been spurious. The applicant also furnished a vaccination certificate showing that G.'s vaccinations were up to date.", "As to her two sons, the applicant referred to the information set out at paragraph 7 above and denied that she had abandoned them.", "With regard to her conduct on her visits to the Granada children's home, as described in the decision of 5 October 2005, the applicant noted that even if the description were accurate – which she denied – it was of no relevance, since the child had in any case been in the Loja children's home (58 km from Granada) since 13 September 2005. Lastly, she asserted that the undiagnosed mental illness attributed to her was non-existent, referring in that regard to the report of 18 December 2009 which she had submitted in the domestic proceedings (see paragraph 40 above). In view of the foregoing, the applicant submitted that some of the administrative officials had been biased in favour of separating her from her daughter and even taking her unborn child from her. Her feelings of despair, powerlessness and anxiety were therefore understandable. Even assuming that problems had been observed in the way in which she was bringing up her child, the applicant took the view that the administrative authorities should have assisted her in overcoming them.", "65. In the applicant's view, the administrative authorities had unjustly deprived her of all contact with her daughter, attempting to sever the ties between them. She further complained that the domestic courts had refused to examine the irregularities in the administrative proceedings, and pointed out that the prosecutor responsible for minors had supported her appeals.", "(b) The Government", "66. The Government conceded that the right of parents not to be separated from their children, unless this was justified in the child's interests, formed part of the right to respect for private and family life. They cited in that connection the judgment in K.A.B. v. Spain (no. 59819/08, 10 April 2012, §§ 95-96). They further observed that the Court's task was not to take the place of the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. They referred in that regard to the case-law set forth in paragraph 71 below.", "67. The Government noted that, having become aware of the child's situation, the administrative authorities had requested the courts to declare her to have been abandoned. Referring to the first-instance judgment of 18 May 2007, the relevant parts of which are set out at paragraph 30 above, they submitted that the administrative authorities had not taken that decision in an arbitrary manner or without justification. The Government observed that the administrative inquiries had shown that G.'s mother was not in a position to look after her. The possibility of placing the child in foster care within the extended family, which had at first been considered, had subsequently been rejected because the applicant's great-uncle was already overburdened. In the absence of any other options the administrative authorities had taken the decision to place the child with a foster family, a decision that had subsequently been endorsed by the courts. The mother had been represented by a lawyer throughout the judicial proceedings and her testimony had been taken into consideration, as had the evidence that had been adduced. The facts had been examined by the domestic courts in a completely non-arbitrary manner and all the decisions had been duly accompanied by reasons. In the Government's view, the child's abandonment had been genuine and had warranted the intervention of the administrative authorities, a fact subsequently acknowledged by the domestic courts. That situation had been unchanged when the applicant's appeal against her daughter's placement had been examined.", "2. The Court's assessment", "68. The Court reiterates that the enjoyment by parent and child of each other's company constitutes a fundamental element of family life (see Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999 ‑ VI, and Saleck Bardi v. Spain, no. 66167/09, § 50, 24 May 2011, § 49).", "(a) General principles concerning the positive obligations of the respondent State under Article 8 of the Convention", "69. As the Court has repeatedly held, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. While a decision by the competent authority resulting in a child being taken into care constitutes interference with a parent's right to respect for his or her family life (see W. v. the United Kingdom, 8 July 1987, § 59, Series A no. 121), the positive obligations inherent in the right to effective respect for private life may involve the adoption of measures even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Mincheva v. Bulgaria, no. 21558/03, § 81, 2 September 2010). In both cases, regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see Saleck Bardi, cited above, § 50, and K.A.B. v. Spain, cited above, § 95).", "70. The Court reaffirms the principle, well-established in its case-law, according to which the Convention is intended to guarantee rights that are practical and effective (see, mutatis mutandis, Artico v. Italy, § 33, Series A no. 37). It reiterates that its task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation.", "71. The Court takes into consideration the fact that it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII). It has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, Eriksson v. Sweden, 22 June 1989, § 71, Series A no. 156, and Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250). Taking a child into care should normally regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see K. and T. v. Finland [GC], no. 25702/94, § 178, ECHR 2001 ‑ VII). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Furthermore, the positive obligations are not confined to ensuring that children can rejoin their parents or have contact with them, but also extend to all the preparatory steps to be taken to that end (see, mutatis mutandis, Kosmopoulou v. Grece, no. 60457/00, § 45, 5 February 2004, and Amanalachioai v. Romania, no. 4023/04, § 95, 26 May 2009).", "It is the Court's task to assess whether the Spanish authorities acted in breach of their positive obligations under Article 8 of the Convention (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002 ‑ I; P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002-VI; Evans v. the United Kingdom [GC], no. 6339/05, § 76, ECHR 2007 ‑ IV; and K.A.B. v. Spain, cited above, § 98).", "72. Each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it under Article 8 of the Convention, and it is for the Court to ascertain whether the domestic authorities, in applying and interpreting the applicable legal provisions, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 141, ECHR 2010, and K.A.B. v. Spain, cited above, § 115).", "(b) Application of these principles in the present case", "73. The Court notes that on 23 August 2005 the applicant's daughter, G., who was aged three years and ten months at the time, was separated from her mother, who had visited the Motril social services department with her partner and their daughter to request assistance because of their difficult financial circumstances. Two days later, on 25 August 2005, the provincial office made a provisional finding that the child had been abandoned. On 30 August 2005 the applicant was informed that the provincial office was assuming guardianship of her daughter and that the latter was being placed in the Nuestra Señora del Pilar children's home in Granada. The Court observes that the child was transferred to a children's home in Loja (see paragraph 13 above) without the applicant being informed and without any response being given to the applicant's requests for her daughter to be transferred to a home closer to where she lived. It notes that the applicant saw her daughter for the last time on 27 September 2005.", "74. In a case such as the present one the courts are faced with interests that are often difficult to reconcile, namely the interests of the child and those of its mother. In the pursuit of a balance between these different interests, the child's best interests must always be a paramount consideration (see Moretti and Benedetti, no. 16318/07, § 67, 27 April 2010).", "75. In the instant case the Court observes that the administrative authorities, in finding that the child had been abandoned, cited the lack of resources of the applicant, who was experiencing extreme financial hardship (see paragraph 9 above). On the basis of these considerations, on 25 August 2005, the provincial office initiated an administrative procedure culminating in a provisional declaration that G. had been legally abandoned. The child was placed under the guardianship of the administrative authorities and placed in a children's home. According to the information available to the Court, the decision to place the child in the home, and the subsequent decisions to withdraw the applicant's contact rights once and for all and transfer the child to another home, were taken on the basis of the report of 4 October 2005 by the social worker A.L.N. (see paragraph 16 above). That report referred to the inappropriate and disrespectful attitude of the applicant, who had been taken to hospital on learning that her daughter was to be taken away from her because of her situation of extreme financial hardship. A.L.N. stated in her report that the applicant was seen on a daily basis in the vicinity of the home where her daughter was staying. The social worker proposed suspending the provisional supervised contact arrangements that had been put in place, and her proposal was acted upon. The applicant was not informed of that measure nor was she told to which home her daughter had been transferred. A.L.N. added that the mother had been given a sum of money.", "76. The Court observes that the decision adopted by the provincial office on 1 February 2006 (see paragraph 22 above), endorsing the finding that the child had been abandoned, reiterated word for word the arguments set out in its previous decision of 25 August 2005 and in the report of 4 October 2005 by the social worker A.L.N. The decision stated in that regard that the mother “[had] displayed no interest, either orally or in writing, in the child's well-being”. However, the Court notes that it is not disputed that the applicant went to the Granada children's home on at least seventeen occasions, despite the fact that the home was some distance from where she lived, and observes that she was not even informed that her daughter had left there on 13 or 14 September 2005 (see paragraph 13 above).", "77. The administrative procedure for the child's placement in foster care commenced on 9 June 2006, the foster parents having been selected on 2 April 2006. However, the Court observes that, according to the applicant, her daughter had told her of being taken to a house with a swimming pool, which suggests that the foster parents had entered into contact with the child long before the date that was mentioned, that is to say, a few days after she was separated from her mother, and at all events prior to 27 September 2005, the date on which the applicant and her daughter saw each other for the last time. The applicant further stated that the social workers had offered her money, a circumstance also referred to in A.L.N's report of 4 October 2005 (see paragraph 16 above). The Court finds it strange that the report referred to the money, thus confirming the applicant's statements, without specifying the reasons why the money had been offered to her.", "78. In so far as the applicant complained that the domestic courts had not examined the irregularities in the administrative proceedings, the Court observes that the question whether a parent's interests have been sufficiently protected in the decision-making process will depend on the specific circumstances of each case. It notes in that regard that during the proceedings before the first-instance judges and the Audiencia Provincial, the applicant was able to present submissions in support of her case, in the context of judicial proceedings in which she was represented by a lawyer, at least from 1 February 2006 onwards (see paragraph 32 above; see also paragraph 21 above as regards the administrative proceedings). Accordingly, the Court does not discern any failings attributable to the domestic courts in that regard.", "79. The Court observes that, in cases concerning family life, the breaking-off of contact with a very young child may result in the progressive deterioration of the child's relationship with his or her parent (see, among other authorities, Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 175, ECHR 2004 ‑ V (extracts), and K.A.B. v. Spain, cited above, § 103). This also holds true in the present case.", "80. In view of these considerations, while reiterating that it is not its role to substitute its assessment for that of the relevant national authorities regarding the measures which should have been taken, since the authorities are in principle better placed to carry out such an assessment, the Court notes a serious lack of diligence in the procedure implemented by the authorities responsible for the child's guardianship, placement and possible adoption (see K.A.B. v. Spain, cited above, § 104).", "81. In this connection and with reference to the obligation on the State to take positive measures, the Court has consistently held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, Eriksson, cited above, § 71, Series A no. 156, and Margareta and Roger Andersson v. Sweden, 25 February 1992, § 91, Series A no. 226-A). In this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation (see Maumousseau and Washington v. France, no. 39388/05, § 83, 6 December 2007, and Mincheva, cited above, § 86).", "82. The crucial question in the present case is thus whether the national authorities took all the necessary and appropriate measures that could reasonably be expected of them to ensure that the child could lead a normal family life within her own family, before placing her with a foster family with a view to her adoption.", "83. In the circumstances of the case it is understandable that the social worker A.L.N. may have decided, in view of G.'s situation, to take the child into care and place her in a home. While this is an extremely serious step which has repercussions for both the child and his or her mother, the urgency of the situation and the best interests of the child may make such a decision necessary. However, the decision in question should have been followed swiftly by appropriate measures to examine in depth the child's situation and her relationship with her parents, while complying with the rules in force. The child was separated from her mother against the latter's wishes and immediately transferred to a home on the basis of a decision taken by the social worker A.L.N. This situation was especially serious given the age of the child, who was still under four. The Court is not persuaded by the reasons considered by the administrative authorities and the domestic courts as “ample justification for automatically placing [G.] under guardianship and declaring her to have been abandoned”, in particular the child's allegedly serious condition, her supposed “lack of emotional attachment” to her mother, and the claim that the latter's “violent conduct during contact visits [was] disrupting the child's stability and development” (see paragraph 30 above). The Court notes that no consideration was given at any stage of the administrative procedure to the fact that the child had been very young when she was separated from her mother, to the existing emotional bond between mother and child or to the length of time that had elapsed since their separation and the attendant consequences for both of them.", "84. In contrast to other cases which the Court has been called upon to examine, the applicant's child in the present case had not been subjected to violence or to physical or psychological ill-treatment (see, conversely, Dewinne v. Belgium (dec.), no. 56024/00, 10 March 2005, and Zakharova v. France (dec.), no. 57306/00, 13 December 2005), or to sexual abuse (see, conversely, Covezzi and Morselli v. Italy, no. 52763/99, § 104, 9 May 2003). The courts did not note any lack of emotional development (see, conversely, Kutzner v. Germany, no. 46544/99, § 68, ECHR 2002 ‑ I), or any worrying health problems on the part of the child or psychological instability on the part of the parents (see, conversely, Bertrand v. France (dec.), no. 57376/00, 19 February 2002, and Couillard Maugery v. France, no. 64796/01, § 261, 1 July 2004). While it is true that in some cases declared inadmissible by the Court, the children concerned may have been placed in care because of unsatisfactory living conditions or material deprivation, this was never the sole reason on which the decision of the domestic courts was based, since other factors such as the psychological state of the parents or their inability to provide their child with emotional and educational support were also considered (see Rampogna and Murgia v. Italy (dec.), no. 40753/98, 11 May 1999; M.G. and M.T.A. v. Italy (dec.), no. 17421/02, 28 June 2005; and Wallová and Walla v. the Czech Republic, no. 23848/04, §§ 72-74, 26 October 2006).", "85. In the present case the applicant's ability to provide her minor daughter, G., with educational and emotional support was not formally at issue, despite the fact that her two eldest children had been placed in the foster care of their mother's great-uncle within the extended family (see paragraph 7 above). The care order in respect of the applicant's child was made because of the applicant's difficult financial situation at the time, without any account being taken of subsequent changes in her circumstances. The Court considers that the applicant had simply been faced with a shortage of funds, a situation which the national authorities could have helped remedy by means other than the complete break-up of the family, a measure of last resort to be applied only in the most serious cases.", "86. In the Court's view, the Spanish administrative authorities should have considered other less drastic measures than taking the child into care. The role of the social welfare authorities is precisely to help persons in difficulty who are not sufficiently familiar with the system, to provide them with guidance and to advise them on matters such as the different types of benefits available, the possibility of obtaining social housing and other means of overcoming their difficulties, such as those originally sought by the applicant (see paragraph 8 above). The Court also observes that both the Granada first-instance judge no. 3, in his judgment of 18 May 2007, and the Granada Audiencia Provincial, in its judgment of 27 June 2008, refused to take into account the change in the applicant's financial circumstances which she sought to invoke in order to appeal against the declaration that her daughter had been abandoned (see paragraph 28 above), confining themselves instead to upholding the declaration adopted by the administrative authorities.", "87. The Court further notes that the initial finding that G. had been abandoned was reproduced automatically throughout the subsequent procedure, during which the intention of the administrative authorities to place the child elsewhere was clearly expressed. The Court finds it surprising, to say the least, that the social worker who set the procedure in motion should have requested the Red Cross to trace the applicant, stating that the family who had “adopted” G. were also “prepared to adopt [her] baby”, whom she estimated to be around nine months old since the applicant “[had been] pregnant over a year ago” (see paragraph 26 above). It observes that the decision of 14 February 2007 by which the Granada provincial office placed G. in pre-adoption foster care (see paragraph 34 above) took into account the fact that the applicant's two eldest children were in foster care with her great-uncle, as well as the possibility referred to by the social worker that the French authorities had assumed guardianship of the applicant's baby. In the Court's view, the administrative authorities simply reproduced the successive decisions without making any new findings or assessing how the circumstances might have changed on the basis of tangible evidence.", "88. As regards the child's placement, the Court observes that the applicant consistently opposed the move, with the support of the prosecutor responsible for minors (see paragraphs 38 and 41 above), and that her alternative proposal for her daughter to be placed in foster care with her great-uncle was rejected by the judgment of 4 September 2009 of the Granada first-instance judge (see paragraph 39 above). The Court notes that the judge rejected this proposal on the grounds that the applicant's great ‑ uncle was not a suitable candidate for fostering minors, without giving any reasons for this assertion, but simply stating that the applicant's great ‑ uncle would be “overburdened” since he was already taking care of the applicant's other two children (see paragraph 34 above). As the applicant's great-uncle was not granted leave to take part in the proceedings, he did not have an opportunity to express his views on the subject.", "89. The Court refers to its case-law, cited in paragraph 81 above, to the effect that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action. It observes that, despite the fact that the prosecutor with responsibility for minors supported the applicant in opposing the child's placement in pre-adoption foster care, that option was chosen on the sole ground of the lack of contact between the child and her mother over a period of several years, although the contact between them had ceased precisely as a result of the administrative and judicial decisions taken. The Court notes that in arriving at the conclusion, in its judgment of 18 June 2010, that the psychological expert report submitted by the applicant was not sufficient to demonstrate her capacity to look after her children, and in finding that there was no convincing evidence that the lack of attention initially observed in relation to the child would not recur, the appellate court did not deem it necessary to commission other reports or expert findings on the applicant's psychological state or her ability to raise her child. The Court considers that taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III). It notes, however, that the applicant was forced to prove that she was a good mother to her child and that when she submitted evidence to that end the competent courts considered, without any supporting arguments, that it was insufficient to outweigh the assessment of the administrative authorities, which in the meantime had been upheld by a judicial decision.", "90. The Court considers that, had the applicant's vulnerability at the time her daughter was taken into care been taken into consideration, this might have played an important role in understanding the situation of the child and her mother. Likewise, the subsequent change in the applicant's financial circumstances does not appear to have been taken into consideration by the judge, who simply referred in his judgment of 4 September 2009 to “technical reports”, without giving any details as to their content, and found that it had not been proven that the applicant was “once again competent to raise the child”, although it had never been alleged that the applicant had ill-treated her daughter.", "91. The Court further notes that the follow-up report issued on 29 March 2011 by the child protection services showed that, almost six years after being separated from the applicant, the child had settled well in her foster family, with whom she had lived since 16 February 2007 and who met all her material and emotional needs. The Court observes in that regard that the passage of time made it very difficult to reverse a situation which could have been remedied by means other than separating the child from her mother and declaring her to have been abandoned.", "92. Hence, the length of time that elapsed – a consequence of the administrative authorities' inaction – coupled with the inaction of the domestic courts, which did not consider to be unreasonable the grounds advanced by the authorities for depriving a mother of her daughter for financial reasons alone (the applicant's mental health, which was referred to initially, was not made the subject of any expert report) were decisive factors in precluding any possibility of the applicant and her daughter being reunited as a family. The applicant and her daughter last saw each other on 27 September 2005, and since then the applicant has constantly sought access to her daughter, both before the competent administrative bodies and before the domestic courts.", "93. In view of these considerations and notwithstanding the margin of appreciation enjoyed by the respondent State in the matter, the Court concludes that the Spanish authorities failed to undertake appropriate and sufficient efforts to secure the applicant's right to live with her child, in breach of her right to respect for her private and family life under Article 8.", "94. Accordingly, there has been a violation of Article 8.", "..." ]

[ "5. The applicant, Ms I. S., was born in 1962 and lives in Bielefeld.", "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "6. The applicant married in 1986 and had two children. In 1991 and 1992 she suffered miscarriages and a stillbirth, which caused her a long lasting psychological trauma.", "7. In summer 1999 she became pregnant with twins after an extramarital affair. The natural father insisted on an abortion, as did the husband of the applicant. Both men threatened to leave her.", "8. In November 1999 the husband of the applicant moved out and threatened to stop paying maintenance for his two sons and to the applicant. He put further pressure on her by threatening to break off all contact with his sons if she sued for maintenance. Instead, he offered to move back in with the applicant if she gave away the “illegitimate” children. The applicant ’ s sister and her mother refused to support her. The applicant felt extremely guilty for having destroyed the family situation for her two sons, yet she was determined not to have an abortion.", "9. On 19 April 2000 the twin sisters, S. and M., were born prematurely. The applicant and the newborn children had to remain in hospital, where until 7 May 2000 the applicant cared for the children.", "The applicant did not specify the identity of the natural father of the twins.", "B. The adoption proceedings", "10. The applicant made initial contact with the Bielefeld Youth Office during her pregnancy. She allegedly initially thought about having the twins placed in foster care, due to her difficult family and financial situation. The Bielefeld Youth Office – according to the applicant – instead suggested adoption as the applicant herself or her husband would have to pay for the foster care.", "11. From January until October 2000 the applicant received psychological treatment on the advice of her gynaecologist. According to her psychoanalyst the applicant was depressed, had suicidal tendencies, and suffered from anxiety, panic attacks and extreme feelings of guilt as well as a sleeping disorder. The applicant felt overwhelmed by the situation and the decisions to be taken. The potential adoption was a topic of discussion during the treatment.", "12. As the applicant could not take the newborn children home she consented to having them placed in provisional care with a view to later adoption. In this way she hoped to avoid too many changes of the children ’ s primary carers. She was allegedly told that if placed in foster care the newborns would first be given to an emergency foster family for six months before being handed over to a long-term foster family.", "13. From 8 May 2000 onwards a staff member from the Bielefeld Youth Office advised the applicant to stop visiting the children if she really intended to give them up for adoption.", "14. On 19 May 2000 the children were handed over to the couple who later became their adoptive parents.", "15. In summer 2000 the applicant personally met the future adoptive parents of the twin sisters. The applicant was allegedly so upset that she burst into tears and had to cut the visit short.", "16. On 1 September 2000 it was legally acknowledged that the husband of the applicant was not the father of the twin sisters by judgment of the Bielefeld District Court (no. 34 F 1306/00). The applicant began to work full time in order to support herself and her two sons.", "17. On 9 November 2000 the applicant formally consented to the adoption of the children in a deed before the civil law notary, D.R., in Bielefeld. The declaration reads as follows:", "“I hereby give consent for my children, S. and M., born 19.04.2000 in Bielefeld, to be adopted by the married couple identified under no. [ ... ] on the list of the Bielefeld City Youth Office.", "I declare this for the use of the competent family court. I am aware that this declaration cannot be revoked.", "I have been instructed by the civil law notary as to the legal consequences of the adoption, in particular the fact that all kinship of the children and their children to me and my relatives will cease as will all duties and rights that follow from kinship.", "Although I do not know the names of the future parents of my children I trust that the Bielefeld City Youth Office has made a proper choice regarding the parents and respected the interests of the children.", "In case the family court wishes to inform me about the beginning or the end of care, the beginning or the end of guardianship regarding my children or about the granting of adoption, I hereby empower the Bielefeld City Youth Office to receive that information for me.”", "18. As the identity of the natural father of the children remained unknown, he could not consent to or object to the adoption.", "19. After the declaration of consent had been made, the applicant, the prospective adoptive parents and the twin infants met again in person. On 25 November 2000 an oral agreement was reached between the prospective adoptive parents and the applicant at a meeting at Stormarn District Social Services in the presence of a staff member. It was considered that the adoptive parents would send a short report together with photographs of the children to the applicant once a year through the Bielefeld Youth Office. Whether this agreement laid down any rules regarding regular meetings between the children and the applicant is disputed. A personal meeting in summer 2001 was considered, but did not take place.", "20. On 1 February 2001 the future adoptive parents declared in a deed before a civil law notary that they wished to adopt the twin sisters S. and M.", "21. In March 2001 the District Administrator ( Landrat ) of Stormarn District, Department of Social Services and Adoption gave an expert opinion on the development of the children in the care of the prospective adoptive parents.", "22. On 21 June 2001 the guardianship division of the Reinbek District Court (proceedings no. 2 XVI 1/01) held a hearing with the prospective adoptive parents in the presence of the twins. The record of the hearing reads:", "“ It was debated how the children have been getting on in the family. Particular attention was paid to addressing anxieties resulting from the fact that the natural mother is obviously having enormous difficulties coping on a psychological level with the fact that she has given away her children. There are signs, given that a half-open adoption was agreed on, which lead to the conclusion that the mother seeks contact with the twins. However, the arrangement involving the staff of the Youth Office and the natural mother remains valid, namely, that photographs of the children are to be sent annually to the natural mother. The children will also be told early on that they were adopted. ”", "23. On the same day the Reinbek District Court concluded the adoption of S. and M. and declared them the legitimate children of the adoptive parents. The family and the given names of the children were changed accordingly.", "C. Proceedings to declare the applicant ’ s consent to adoption void", "24. On 11 April 2002 the applicant commenced proceedings before the Bielefeld District Court in order to declare her consent to the adoption void. The court transferred the case to the competent Reinbek District Court (no. 2 XVI 6/02). The applicant argued that the adoption was void because the father of the child had not consented to the adoption. She further argued that at the time of giving her consent she had been either in a temporary or in a pathological state of mental disturbance, which had prevented the free exercise of her will. She had not been aware of what she had been doing. She argued – referring to medical evidence – that she had been suffering from an “aggravated reactive form of depression with acute risk of suicide” since 1992, when she had been traumatised by the stillbirth.", "25. The guardian ad litem of the children argued that a revocation of the adoption would be against the best interests of the children, as since their birth they had been almost continuously in the care of the adoptive parents who had established a very good parental relationship with them.", "26. In reaction to the arguments of the guardian ad litem the applicant partly withdrew her application with regard to custody rights and made clear that her aim was no longer to integrate the children into her own family. She acknowledged that the children were well cared for and fully settled in the adoptive family. She underlined that her aim was to regain kinship in order to have a right to contact with the children. In her view her vulnerable situation at the time of the birth had been exploited by the Bielefeld Youth Office; she now felt that she had been unduly influenced to put the children up for adoption.", "27. The Reinbek District Court procured a psychiatric opinion on whether the applicant had been temporarily legally incapable of acting at the time of consenting to the adoption. The expert contacted the applicant, her psychoanalyst at the time and her long-term gynaecologist. According to the psychiatric expert the applicant had been in a situation of extreme conflict from the time she had become aware of her pregnancy. This had aggravated the depression she was already suffering from due to the accidental stillbirth in 1992. He put the applicant ’ s decision to put the twin sisters up for adoption down to her desire to “ get her husband back ”. He diagnosed a certain weakness in the applicant ’ s personality and a dependency on male authority. However, he could not diagnose any past or present psychotic illnesses and therefore concluded that although she had been suffering from a deep inner conflict at the time of consenting to the adoption, the applicant had been legally capable of making a decision on her own.", "28. On 4 June 2003 the court heard the applicant, who explained how, in her view, the Bielefeld Youth Office had unduly used her wish to see her children in the summer of 2000 in order to pressurise her into signing the adoption declaration.", "29. In a decision of 10 June 2003 the Reinbek District Court dismissed the applicant ’ s claim. It acknowledged the situation of extreme conflict the applicant had been in at the time of consenting to the adoption and the psychological implications of that. It stated that solutions other than putting the children up for adoption might have been available to resolve the applicant ’ s personal crisis. In line with the expert opinion, however, the court held that the applicant had still been capable of making decisions. Furthermore, the court stated that the applicant had no legal standing to rely on the lack of consent of the children ’ s father to the adoption.", "30. Since the applicant did not appeal against the decision, it became final.", "D. The proceedings concerning contact and/or information rights of the applicant", "1. Proceedings before Reinbek District Court", "31. On 14 November 2002 the applicant filed proceedings (no. 1 F 32/02) for contact with the children and the right to receive information about them at the Reinbek District Court. She argued that she had been promised meetings with the children every six months and letters and photos of them. A meeting with the children in June 2001 had been scheduled according to the agreement, but did not take place because the responsible member of Bielefeld Youth Office was on extended leave. No other member of the Youth Office had replaced the absent staff member. In September 2001 the applicant received photos of the children. When she mentioned that she was thinking about revoking her consent to the adoption, staff of the Bielefeld Youth Office threatened to stop her contact with the children. A letter that the applicant wrote to the adoptive parents and handed over to the Bielefeld Youth Office was returned with the remark that the applicant should seek psychological treatment. The applicant based her claim for contact on Article 1666 and additionally on Article 1685 § 2 of the Civil Code (see “Relevant domestic law” below). Her claim for the right to receive information about the children was based on Article 1686 of the Civil Code.", "32. On 2 July 2003 the adoptive parents were heard. They opposed the claim of the applicant and asked for it to be dismissed. They referred to the legal basis of adoption under the Civil Code, which only provided for anonymous adoption. According to the hearing record the adoptive parents declared that they still intended to inform the children about the adoption before they started primary school. They had planned to see the mother of the children together with the children in spring 2001. This meeting had been set up for the sole benefit of the applicant, as the children would not have benefited from it. They had had the intention of sending letters to the applicant with information about the children. Now, in view of the court proceedings, they felt insecure and preferred to wait for the court decisions.", "33. In a decision of 21 July 2003 the Reinbek District Court dismissed the applicant ’ s request for contact with the children. According to the court Article 1684 of the Civil Code was not applicable to the applicant ’ s case as she had lost her legal status as a parent as a result of the adoption. An analogous application of the Article was, according to a decision of the Federal Constitutional Court of 9 April 2003 (no. 1 BvR 1493/96), not possible. Article 1685 of the Civil Code was applicable, but would not grant contact rights to the applicant as she did not fulfil the legal requirements. The applicant could not be considered as a person who had cared for the children for an extended period of time. In fact, she had only cared for them for two weeks. Even if the criteria of the Federal Constitutional Court in the above-mentioned decision – whether there was a social and family relationship – were applied, the applicant could not be granted contact, as she had not created a significant social and family relationship with the children. The time of pregnancy and the two weeks after the birth did not suffice. The Civil Code grants to the adoptive parents the sole right to establish, grant or deny contact with the children even in respect of the natural mother. Furthermore, the court argued that the children, who were only three years old, might be overwhelmed by the fact that they had two mothers.", "34. On 28 July 2003 the court also dismissed the applicant ’ s claim in regard to the right to receive information about the children. Article 1686 of the Civil Code was not applicable, as the applicant was not a parent any more. Insofar as Article 1686 might be construed more widely, it would not apply to the applicant as her case did not fall under the scope of Article 1685 of the Civil Code.", "2. Proceedings before the Schleswig Court of Appeal", "35. On 11 August 2003 the applicant filed an appeal with the Schleswig Court of Appeal. She mainly complained that the Reinbek District Court had neither decided on Article 1666 of the Civil Code as a potential basis of her claim nor on whether a contractual agreement existed; furthermore, her petition for an expert opinion on the children ’ s best interests had been ignored. She further argued that the criteria of a “long duration”, when applied to parent-child relationships, had to be interpreted from the perspective of the child, whose concept of time differed from that of adults. The natural mother was always a “relevant person” in the sense of Article 1685 of the Civil Code, and this evaluation did not change even after the natural mother ceased to have legal responsibilities. Regarding the right to information, she argued that although she had consented to the adoption, she remained the natural mother and the constitutional protection of the family applied to her. Even the Federal Constitutional Court had acknowledged that during pregnancy a psycho-social relationship between mother and the foetus was established (judgment of 29 January 2003 – 1 BvL 20/99 and 1 BvR 933/01 ). Lastly, she complained about the length of the proceedings.", "36. On 22 October 2003 the applicant was granted legal aid.", "37. On 30 January 2004 the Schleswig Court of Appeal ( 10 UF 199/03 and 10 UF 222/03 ) dismissed the applicant ’ s appeal against the decisions of the Reinbek District Court of 21 and 28 July 2003. Two hearings, one on 15 December 2003 and the other on 30 January 2004, had taken place. Regarding the length of the proceedings before the district court, the Schleswig Court of Appeal found that that court had dealt adequately with the complex case within seven and a half months. Concerning the contact rights of the applicant, the court found that only Article 1685 Civil Code was applicable. Although the applicant was the children ’ s natural mother, she did not belong to the circle of people who had lived in “ domestic community ” with the child for a long period of time. According to the court, only foster parents are covered by this terminology. Furthermore, in order to determine “a long period of time” one had to establish whether a child had come to accept that his or her “relevant surroundings” ( Bezugswelt ) were with the individual in question. In the present case, the time of pregnancy was irrelevant, as an unborn child does not have a concept of its surroundings. Article 1685 Civil Code was in line with the constitutional protection of the family. The natural mother ceased to have contact or custody rights at the moment of adoption. The legal provisions regarding adoption were aimed at the undisturbed development of the child, and they served the best interests of the adopted child, who had to be fully integrated into the adoptive family; the biological family became irrelevant in accordance with the law. Even if the criteria of the judgment of the Federal Constitutional Court of 9 April 2003 regarding the natural father of a child born out of wedlock were applied, the natural mother would have to have lived with the children for a considerable time, which was not the case here. As the applicant knew, the right to contact on the basis of a contractual agreement could not be enforced by the family courts, as they were not empowered to regulate such matters. Article 1666 of the Civil Code did not give grounds for a different solution.", "38. Having considered the claim for the right to receive information about the children under Article 1686 of the Civil Code, the court found that the applicant had ceased to be a parent at the moment of adoption. As the legal basis was unambiguous and the circle of people who had a right to such information was strictly limited to the parents, the court found no room for a different interpretation.", "3. Proceedings before the Federal Constitutional Court", "39. On 8 March 2004 the applicant raised a constitutional complaint regarding the denial of her rights to receive information about and have contact with the twin sisters after their adoption.", "40. In a decision of 13 December 2007, served on the applicant ’ s representative on 19 December 2007, a panel of three constitutional judges refused to admit the constitutional complaint.", "E. Other developments and proceedings", "41. The applicant also commenced proceedings in June 2003 concerning the appointment of a guardian ad litem for the twin sisters, in order for the children to be able to raise a constitutional complaint against the adoption decision of the guardianship division of the Reinbek District Court of 21 June 2001 (no. 2 XVI 1/01). These proceedings are the issue of another complaint before this Court (application no. 30296/ 08).", "42. The applicant divorced her husband and is now remarried. She had a child with her new husband in 2003.", "43. By letter of 16 December 2011 this Court informed the applicant that on 3 December 2011 the Law on a remedy against lengthy court proceedings and criminal investigations (Federal Law Gazette Part I, 2011, page 2302 et seq.) had come into force in the Federal Republic of Germany." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Article 6 § 1 and 2 of the Basic Law", "“(1) Marriage and the family shall enjoy the special protection of the State.", "(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.”", "B. Relevant provisions of the Civil Code", "1. Parental custody, principles", "44. Article 1626 provides that parents have the duty and the right to care for their minor children (parental care). Parental custody encompasses both care for the person and for the property of the children.", "45. By judgment given on 29 January 2003 (1 BvL 20/99, 1 BvR 933/01) the Federal Constitutional Court accepted the legislator ’ s decision originally to grant parental authority over children born out of wedlock to the mother. The Federal Constitutional Court considered that, quite apart from the biological bond, mother and child developed a relationship during pregnancy which was continued after birth.", "2. Provisions on adoption", "46. Article 1747 stipulates that the consent of the parents is necessary for the adoption of a child. Consent may not be given until the child is eight weeks old. It is effective even if the person who gives consent does not know the adoptive parents, who have already been chosen.", "47. Article 1750 provides that the consent must be declared to the family court and recorded by a notary. The consent becomes effective on the date it is received by the family court. It may not be given subject to a condition or a stipulation as to time. It is irrevocable.", "48. Pursuant to Article 1751 § 1, after the consent of one parent to adoption the parental custody of this parent is suspended and the right to have personal contact with the child may not be exercised.", "49. Pursuant to Article 1754, insofar as it is relevant to this case, adoption has the effect that the adopted child attains the legal status of the child of the adoptive parents. Parental custody is held by the adoptive parents jointly. Article 1755 provides that when the adoption takes effect, the relationship of the child and its descendants to its previous relatives and the rights and duties arising from this are extinguished.", "50. Article 1758 § 1 provides that facts pertaining to the adoption and its circumstances may not be revealed or inquired into without the approval of the adoptive parent and of the child, unless special reasons of public interest make this necessary.", "51. The terms “open” or “half-open” adoption are not used in the Civil Code.", "3. Provisions on contact with a child", "52. Under Article 1684 § 1, a child is entitled to have contact with both parents; each parent is obliged to have contact with, and entitled to have contact with, the child.", "53. Under Article 1685 §§ 1 and 2 in the version applicable when the courts of first instance and the appeal court decided in this case, grandparents and siblings had a right to contact the child if this served the best interests of the child. The same applied to the spouse or former spouse and the civil partner or former civil partner of a parent, where this person had lived in domestic community with the child for a long period, and to persons with whom the child had spent a long period of time as a foster child.", "54. Under the current version – ­ ­ valid since 23 April 2004 – persons with whom the child has a close relationship ( enge Bezugspersonen) have a right to contact with the child if it serves its best interests and if they have or have had “ actual responsibility ” for the child ( a “ social and family relationship ” ). It is assumed that actual responsibility has been taken if the person has lived for a long period of time in domestic community with the child. The law had to be changed because the Federal Constitutional Court, by judgment of 9 April 2003 ( 1 BvR 1493/96, 1724/01 ), declared Article 1685 in its old version incompatible with Article 6 § 1 of the Basic Law regarding natural fathers who had a “social and family relationship” with their children.", "4. Provision on information on a child", "55. In accordance with Article 1686, each parent may, when it is justified, request information from the other parent on the personal circumstances of the child, to the extent that this is not inconsistent with the best interests of the child. Disputes are decided by the family court.", "5. Provision on urgent measures in the best interest of the child", "56. Pursuant to Article 1666 in the version applicable before July 2008 the family court was empowered to take the necessary measures if the parents were not willing or were not able to avert a danger to the physical, mental or psychological best interests of a child caused by abuse of parental custody, neglect of the child or by any other failure of the parents to carry out their duty.", "C. Law on a remedy against lengthy court proceedings and criminal investigations", "57. Under this Act ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren ), which came into force on 3 December 2011, a national remedy against the excessive length of court proceedings and criminal investigations was created. According to its Article 23, the transitory provision, the new remedy is applicable to pending cases as well as to cases where the proceedings have terminated on the national level but which already form part of an application to the European Court of Human Rights.", "D. International Conventions", "1. 1967 European Convention on the Adoption of Children", "58. Germany signed the 1967 Convention in April 1967 and ratified it in November 1980. It entered into force in Germany on 11 February 1981.", "The relevant provisions of the Convention read as follows:", "“Article 20", "1. Provision shall be made to enable an adoption to be completed without disclosing to the child ’ s family the identity of the adopter.", "2. Provision shall be made to require or permit adoption proceedings to take place in camera. ”", "2. European Convention on the Adoption of Children (revised 2008)", "59. The revised European Convention on the Adoption of Children was opened for signature on 27 November 2008 and entered into force on 1 September 2011. Germany has not signed the revised Convention. The relevant provisions of the 2008 Convention read as follows:", "“Article 22", "1. Provision may be made to enable an adoption to be completed without disclosing the identity of the adopter to the child ’ s family of origin.", "2. [ as Article 20 § 2 above ] .”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "60. The applicant complained that the decisions of the German courts denying her the right to have contact with and receive information about the children of whom she is the natural mother violated her right to respect for her family and private life under Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "61. The Government contested that argument.", "A. Admissibility", "62. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The applicant ’ s submissions", "63. The applicant emphasised in particular that her consent to the placement of her children for adoption did not automatically end her “family life” within the meaning of Article 8 of the Convention. By signing the deed she had merely waived her right as a legal parent, but not as a natural mother.", "64. The applicant stressed that as the natural mother of the adopted children, contact with them and information about their well-being formed at least a part of her “private life”, as it concerned an important part of her identity even though she had ceased to have legal rights over the children. Refusal to allow a natural mother contact with her child after it had been adopted was disproportionate, especially in this case, where the adoptive parents, the Bielefeld Youth Office and the applicant had agreed to a “half ‑ open” adoption, which meant that the applicant would be informed about the development of the children and would be able to meet them twice a year.", "2. The Government ’ s submissions", "65. The Government argued that there had been no interference with the applicant ’ s right to respect for her family life. All forms of family relationship had been extinguished at the latest at the time of the adoption. Citing Schneider v. Germany, no. 17080/07, § 80, 15 September 2011, the Government pointed out that biological kinship between a biological parent and child alone, without any further legal and factual elements indicating the existence of a close personal relationship, was insufficient to attract the protection of Article 8 of the Convention. The Government noted that in the case at hand the children never lived with the applicant.", "66. The Government conceded that the applicant ’ s relationship with her adopted children might fall within the scope of Article 8 of the Convention under the notion of “private life”. They acknowledged that the fact of the children ’ s existence would always be an important aspect of the applicant ’ s life history, given that she was their natural mother. However, they doubted that the decisions of the domestic courts regarding contact and information rights infringed the applicant ’ s right to respect for her private life. The Government pointed out that the applicant had been informed about the legal effects of the placement order. They further stressed that the alleged arrangements concerning a “half-open” adoption were made only after the applicant had placed the children for adoption. At the time of consenting to the adoption, the applicant had had no grounds whatsoever to assume that she would be able to continue any form of relationship with the children.", "3. Assessment by the Court", "( a ) Whether there has been an interference or a positive obligation", "67. The Court observes at the outset that the instant application exclusively concerns the domestic courts ’ refusal to grant the applicant contact with and information about her natural children. The applicant does not, in fact, contest the validity of her consent to the placement of the newborn children for adoption.", "68. The Court notes that the relationship of the applicant with her children fell under the protection of Article 8, under the notion of “family life”, at the time when the children were born. The relationship between the applicant and the children might have ceased to fall within the scope of “family life” when the applicant signed the deed which irrevocably placed the children for adoption at the civil law notary ’ s office on 9 November 2000.", "69. The Court reiterates that biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, might be insufficient to attract the protection of Article 8 (see Schneider v. Germany, cited above, 17080/07, § 80, and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008). Notwithstanding that the Court has in some cases considered that even “intended family life” might, exceptionally, fall within the ambit of Article 8, (see Anayo v. Germany, no. 20578/07, § 57, 21 December 2010), the Court observes that in the present case the existing family relationship was intentionally severed by the applicant. However, the Court considers that the determination of remaining or newly established rights between the applicant, the adoptive parents and her biological children, even if they fall outside the scope of “ family life ”, concern an important part of the applicant ’ s identity as a biological mother and thus her “ private life ” within the meaning of Article 8 § 1.", "70. The Court observes that the applicant complains about the decisions of the German courts refusing her the right to have contact with, and the right to receive information about, the adopted children. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. In the instant case, there are elements which suggest that the German courts ’ decisions could be considered in the light of a positive obligation. However, the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see, for instance, Mikulić v. Croatia, no. 53176/99, § 58, ECHR 2002 ‑ I; Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ‑ I; and S.H. and Others v. Austria [GC], no. 57813/00, § 88, ECHR 2011).", "( b ) Justification under paragraph 2 of Article 8", "71. The Court will thus continue its examination by determining whether the impugned court decisions were “in accordance with the law” pursued an aim or aims that are legitimate and can be regarded as “necessary in a democratic society”.", "(i) In accordance with the law", "72. The Court notes that neither Article 1684 nor Article 1685 of the Civil Code conferred on biological parents a right to have contact with their children as such. The same can be said for Article 1686 of the Civil Code which does not give them a right to have information about their adopted children.", "73. The Court further notes that when examining the applicant ’ s request the domestic courts did not limit their legal analysis to a literal reading of the provisions of the Civil Code. In conformity with a decision of the Federal Constitutional Court, they construed the named provisions beyond their literal wording insofar as they asked whether a “social and family relationship” between the children and the applicant had already been established and whether for this reason contact would serve the best interests of the children. In applying this standard the domestic courts took the individual circumstances of the case into account. In coming to the conclusion that such a relationship had not yet been established between the applicant and the twin children, the domestic courts emphasised in particular the short period of nineteen days that they had actually spent together after the children ’ s birth. In this context, the Court reiterates that is is not its task to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).", "74. Under the pertinent provisions, the termination of the applicant ’ s legal right as a parent is the consequence of her consent to the deed before the civil law notary. By this act her rights to contact with the children and information about them terminated. In conformity with the statutory law, the applicant was made aware of the legal consequences of placing the children for adoption by a civil law notary prior to signing the adoption deed. The Court notes that the explanations given by the civil law notary regarding the statutory law were not in dispute. According to the declaration adopted before the notary, there was no allusion made to a “half-open adoption” in this context. The Court further notes that civil law notaries are lawyers who have undergone special counseling training before being admitted to the notary bar.", "75. The Court observes that the domestic courts had established in separate proceedings that the adoption deed in the pertinent case was valid. The domestic courts established, on the basis of an expert report, that the applicant had been capable of understanding the impact of the adoption deed and of acting accordingly. As a consequence of this the applicant ’ s parental rights were finally extinguished when the adoption took effect in accordance with Article 1755 of the Civil Code.", "(ii) Legitimate aim", "76. The Court observes that the German provisions on anonymous adoption, by not providing a right to contact with and information about the adopted children, aim at protecting the adopted child ’ s private and family life. At the core of this lies the intention to safeguard the adopted child ’ s right to develop and bond with his or her adoptive parents. The same applies to the adoptive parents who also hold a right to protect their private and family life, including a corresponding right to bond with their adopted children and to develop undisturbed family life. In pursuing this aim the German provisions are in conformity with Article 20 of the 1967 European Convention on the Adoption of Children, as well as with Article 22 of the 2008 revised version of that Convention, although the Court takes note that Germany has neither signed nor ratified this revised Convention. The Conventions provide for anonymous adoptions, the purpose of which, according to the explanatory reports of those conventions, is to avoid difficulties which may arise from the natural parents ’ knowledge of the adopter ’ s identity. The Court observes in this context that even if the more recent Convention allows for less strict regulations on adoption, it does not favour such an approach. In this context it is also necessary to take into account if a State has rules on foster care which allow natural parents to retain, to a great extent, their legal status as parents. This is the case for Germany. The Court notes that the applicant was made aware of the existence of foster care prior to the adoption process even if, as the applicant alleges, the information given was not comprehensive (compare paragraph 12, above).", "77. The decision of the Schleswig Court of Appeal was aimed at complying with the legislator ’ s will to give preference to a newly established family relationship between the children and their adoptive parents, with whom the children actually lived and who were providing parental care on a daily basis. The courts further emphasised the importance of allowing the very young children to develop in their adoptive family without disruption.", "78. In the light of these considerations the Court accepts that the decisions at issue pursued the legitimate aim of protecting the rights and freedoms of others.", "(iii) Necessary in a democratic society", "79. The question the Court now has to address is whether the decisions of the domestic courts with regard to contact and information were necessary to pursue the aforementioned aim and struck a fair balance between the rights of the children in question, the adoptive family and the private life of the applicant as the children ’ s natural mother.", "80. In this context the Court notes that the adoptive parents had given – a representative of the Youth Office being present – the applicant reason to expect a “half-open” adoption and had consented orally to at least an exchange of information about the children after the adoption.", "81. Although the terms “open” and “half-open” adoption are not used in the Civil Code, the Court takes note of the Government ’ s argument that German law permitted “open” and “half-open” forms of adoption. Under such an agreement there could be contact of a greater or lesser degree of intensity – either direct or mediated by the Youth Office – between the adoptive parents, the child and the biological parents. The Government further explained that such forms of adoption were dependent on the consent of the adoptive parents, who held custody rights and exercised parental care in the best interests of the child. Regarding the agreement in the case at hand, the Government emphasised that it only contained reference to the applicant ’ s right to have information about the children. The Government assessed the legal value of such arrangements as mere declarations of intent which were not enforceable against the adoptive parents ’ will. According to the Government, making such decisions enforceable was not considered expedient as adoptive parents should have freedom in the exercise of their custody rights. The Government further pointed to Article 1750 of the Civil Code, which stipulated that a declaration of consent to adoption could not be made subject to any condition or have any condition attached to it later.", "82. The applicant argued, in line with the Government, that an “open” or “half-open” adoption only differed from a classic adoption to the extent that details as to the identity of the adoptive parents were disclosed. Concerning the “agreement”, she emphasised that she had demanded that an agreement on contact rights and information be made before she signed the deed ceding her parental rights. However, the Youth Office had urged her to cede her rights first and had only afterwards arranged a meeting between her and the adoptive parents.", "83. The Court notes that nothing indicates that either the Youth Office or the prospective adoptive parents had wanted to deviate from the German statutory law on adoption, which provides for an anonymous adoption but permits disclosure of identity by the adoptive parents themselves.", "84. The Court emphasises that the oral arrangements between the applicant and the adoptive parents were concluded after the applicant had been informed by an independent lawyer, a civil law notary, about the legal consequences of her intention to declare her irrevocable consent to the adoption. The Court notes that the requirement that formal legal advice be provided by an independent lawyer is an essential safeguard against misunderstandings of the nature of the deed, which cannot be revoked and cannot have conditions attached to it later.", "85. To the Court this clearly indicates that the applicant understood the “arrangements” in the way the Government described them: namely, as a declaration of intent in the context of a prospective voluntary setting aside of anonymity by the adoptive parents. This is also made clear by the specific circumstances of the conclusion of the agreement which was only made orally and did not contain any details on the right to information and the right to contact.", "86. The adoption process, seen as a whole and including the court proceedings, was fair and ensured the requisite protection of the applicant ’ s rights. The Court reiterates that the legal rights of the applicant with regard to her biological children were severed as a result of acts she had taken in full knowledge of the legal and factual consequences. In view of this the Court finds the decision of the German authorities to attach greater weight to the privacy and family interests of the adoptive family to be proportionate. There is no indication that the domestic courts failed to sufficiently establish the relevant facts, in particular the personal links between the applicant and the children, although they did not order an expert opinion on the children ’ s best interests. As the children were adopted as newborns and were still very young at the time of the domestic proceedings, the interests of the adoptive family to enjoy and build a family life together with the children undisturbed by attempts by the children ’ s biological parent to re-establish contact prevailed.", "87. The foregoing considerations are sufficient to enable the Court to conclude that there has not been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION", "88. The applicant further complained under Article 14 of the Convention taken in conjunction with Article 8 that she was discriminated against in comparison to step- or foster parents, who had a potential right to contact with children formerly in their care if that contact was deemed suitable for the children. Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "89. The Court notes that the domestic courts applied Articles 1684 § 1 and 1685 §§ 1 and 2 of the Civil Code in exactly the way they would have done if the applicant had been either a stepmother or a foster parent. It observes, in particular, that even a stepmother or foster parent would not have qualified for such rights in the applicant ’ s position, because the short period of time she actually lived with her natural children, did not, in the domestic courts ’ view, allow her to establish a social and family relationship with them. It follows that the applicant ’ s complaints under Article 14 in conjunction with Article 8 concerning both the guardianship and contact proceedings must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION", "90. The applicant had originally complained that the length of the proceedings before the domestic courts had been excessive and that the domestic law did not provide for an effective remedy.", "91. By letter of 27 June 20 12 the applicant informed the Court that she did not wish to pursue her complaint under Article 6 and Article 13, as she was not inclined to make use of the new domestic remedy against lengthy court proceedings.", "92. The Court notes that the applicant wishes to withdraw her complaint as she does not wish to pursue it at the domestic level. The circumstances therefore lead to the conclusion that the applicant does not intend to pursue her application in this regard (Article 37 § 1 (a) and (b) of the Convention). In addition, there is no reason pertaining to respect for human rights as defined in the Convention or its Protocols that requires the Court to continue the examination of this complaint (Article 37 § 1 (c) in fine ). Accordingly, these complaints are to be struck out." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants, who belong to the Roma ethnic group, were born in 1970 and 1957 respectively and live in Mănăstirea (Călărași).", "6. At the relevant time they were living together in a de facto partnership and were the parents of seven children:", "– E. and E.S., a boy and a girl, twins, born on 27 March 2004;", "– T., a boy, born on 7 March 2005;", "– A.-M., a girl, born on 31 March 2006;", "– S., a girl, born on 15 June 2007;", "– E.L., a girl, born on 29 June 2008;", "– I., a boy, born on 8 October 2009.", "7. The second applicant has been classified as suffering from second ‑ degree permanent disability on account of psychological disorders.", "8. On 3 October 2013 the applicants married.", "A. Background to the case", "9. In August 2010 the first applicant sent a complaint to the Romanian president, claiming that her father had subjected her to abuse; she stated that he had raped her and threatened her children. She attached to her complaint a medical certificate attesting that in 2008 one of her children had sustained injuries necessity seven to eight days of medical treatment.", "10. Following an investigation, the authorities dealing with the matter established that the first applicant ’ s allegations had no basis in fact and that the complaint had been drawn up in the context of a conflict between the first applicant and the representative of the religious organisation in her village, who had allegedly excluded her from that community.", "11. The first applicant ’ s complaint was then transmitted to the authority responsible for monitoring the situation of maltreated or abandoned children, namely the Călăraşi Directorate-General of Social Assistance and Child Welfare (“the DGASPC”, paragraph 12 below), in order to verify the circumstances of the applicants ’ children. On 16 September 2010 the DGASPC asked the Social Services Department of the Mănăstirea municipality (“the SPAS”) to look into the education provided to the family ’ s seven children, verify their welfare situation and their health, and to provide it with all relevant information (see paragraph 12 below).", "12. In September 2010 the SPAS visited the applicants ’ home. It noted that the family lived in an insalubrious house provided by the first applicant ’ s father and that the applicants took no interest in their children ’ s health or education. The family ’ s monthly income amounted to 774 Romanian lei (RON) and this sum was composed of the second applicant ’ s disability allowance, child allowances and an allowance paid to the first applicant as a single parent. The SPAS ’ s report also mentioned that the applicants refused to enrol their children in school or with a doctor, and that they restricted their access to outdoor activities and any other activity which could potentially stimulate their integration or adaptation to life within the community. According to the SPAS, the applicants had refused assistance from social-service employees who wished to advise them about their responsibilities towards their children.", "13. Based on the SPAS ’ s findings (see paragraph 12 above), on 20 September 2010 the DGASPC sent the applicants a letter informing them that, as parents, they had a duty to provide the minimum conditions necessary for their children ’ s development and also to ensure that they did not neglect them. The DGASPC recommended that the applicants take the following measures:", "“ – provide [their children] with an appropriate level of physical cleanliness and clean clothes, [and guarantee the cleanliness] of the house and a proper diet;", "– sign up all the children with a family doctor, have them vaccinated and follow any recommended treatment;", "– enrol the children aged from three to seven years in a nursery school;", "– allow the children to create relationships with [the other children/] ([through] walks, games);", "– refrain from subjecting the children to physical and/or verbal violence and from giving them emotionally traumatising messages (do not create [feelings of] fear, isolation, [do not create in them a] lack of confidence).”", "14. In the same letter, the DGASPC informed the applicants:", "“The manner in which you fulfil these obligations will be monitored by ... the DGASPC.", "Should the neglect of the children persist, and if this affects their safety within the family and [if] there is a breach of certain of their rights, urgent protection measures will be taken in respect of the children, even without [your] agreement, in accordance with sections 64, 65 and 66 of Law no. 272/2004 (the Protection of Children ’ s Rights Act). ...”", "B. Monitoring of the applicants ’ family", "15. A schedule was drawn up to ensure regular monitoring of the applicants ’ family by the social services. On 11 October 2010 the committee responsible for providing support to the Mănăstirea municipal guardianship and welfare office visited the applicants ’ home. It submitted a report stating that the applicants claimed not to have signed up their children with a doctor and had no intention of doing so; in addition, although they had enrolled one of the children in nursery school, they did not take him there for fear he would be kidnapped. The committee ’ s report also noted that the house was made up of two rooms, an entrance corridor and a kitchen, where clothes and wood were piled up together. It added that the house was heated and clean, and that a meal had been prepared.", "16. It further indicated that the second applicant had become anxious and begun raising his voice to complain that he was not receiving allowances for all of his children. Informed that the monitoring of his family would last for several months, the second applicant apparently became agitated and informed the municipal employees that they were not to return to his home. The committee proposed in its report that the monitoring of the applicants ’ family should continue.", "17. On 22 December 2010 and 18 January 2011 the SPAS went to the applicants ’ home in order to assess the children ’ s situation and advise the applicants about the measures to be taken in order to meet the DGASPC ’ s recommendations (see paragraph 13 above). According to the SPAS, the second applicant was very recalcitrant, insulted the social-service employees, refused access to the children and declined to provide them with information about the children. In the reports drawn up after these two visits, the SPAS mentioned that the house was still poorly maintained, that the windows were covered with plastic tarpaulins, and that the door was damaged. It indicated that the children ’ s situation did not seem to have improved since the monitory of the family had begun, and emphasised the applicants ’ refusal to cooperate with the social services and their failure to fulfil their parental obligations. In view of these findings, it suggested that a protective measure be imposed in respect of the children.", "18. On 28 January 2011 a set of measures was prepared in the context of protecting the applicants ’ children, “as a result of the parents ’ lack of investment in their role, consisting in providing the minimal conditions necessary to raise [their children], care for them, oversee their satisfactory development, educate them and monitor their health”. The SPAS continued to monitor the children ’ s situation and ensure that welfare benefits were paid to the applicants.", "19. A new report, drawn up on 25 February 2011, indicated that the applicants ’ family had little contact with others and that the parents were not collaborating with the social services in respect of the monitoring of their children; their neighbours alleged that they behaved aggressively and that their children were still neglected. This report recommended that a protective measure be adopted in respect of the children.", "C. The temporary placement in care of the applicants ’ children", "1. The children ’ s emergency placement", "20. On 16 and 17 March 2011 the DGASPC drew up two reports about the applicants ’ children. These noted the unsanitary conditions in the house, the very poor hygiene conditions and the applicants ’ neglect of their children. With regard to this last aspect, the DGASPC noted that the applicants took little interest in their children ’ s health and refused to send them to school, to participate in social activities and to have contact with others. In its view, the applicants were refusing to cooperate with the authorities in improving the children ’ s situation. The reports concluded that, given the seriousness of the state of neglect faced by the children and the parents ’ lack of agreement to protective measures, emergency placement of the underage children was recommended.", "21. On 21 March 2011 the DGASPC drew up individual protection plans for the applicants ’ children, specifying their needs, the persons responsible for them and the support to be provided to the family.", "22. At the DGASPC ’ s request, in two separate judgments of 6 April 2011 the Călăraşi County Court (the “county court”) ordered the children ’ s emergency placement and transferred parental rights in their respect to the president of the Călăraşi County Council.", "23. In the absence of appeals, these judgments became final.", "24. On 4 August 2011, in spite of the applicants ’ objections, employees of the DGASPC, assisted by a bailiff, police officers and a psychologist gave effect to the judgments of 6 April 2011 (see paragraph 22 above). In consequence, the youngest child, I., was placed with a child-minder in Călăraşi, a town situated about 38 km from the village in which the applicants lived; the oldest children were placed together in a residential centre situated about 88 km from the applicants ’ home.", "2. The children ’ s temporary placement", "25. The children underwent psychological and medical tests after being taken into care by the authorities. The test report noted that serious deficiencies had been observed in the children, “resulting from neglect by the parents”. Thus, according to the report, I. was suffering from “recent cerebral paroxysmal events, microcytic hypochromic anaemia and weight ‑ related hypotrophy”, as a result of which she had been admitted to hospital urgently. As to the children ’ s intellectual development, the report noted “slight delayed development ... in all the children; speech issues, a limited vocabulary, a minimal level of socialisation, [and] a tendency to withdraw from others”.", "26. On 5 August 2011 the DGASPC drew up a report on the six oldest children, noting as follows:", "“... The conclusions of the social services ’ report indicate shortcomings in the place of residence (the dwelling belongs to C.G.; ..., the habitable area is insufficient and it is furnished and equipped to a minimal standard; the hygiene conditions are precarious, there are significant shortcomings [in housework and in maintaining] cleanliness in the house and also in terms of personal hygiene, clean clothing and food hygiene); financial [difficulties] – [the family ’ s income] is made up of an allowance for a person with second-degree disability [on account of a] psychological disorder, amounting to 234 [RON], and of State child benefit, amounting to 540 [RON]. It should be noted that although both parents live in the village of Mănăstirea, [the second applicant] has never taken steps to be registered as resident in this municipality... [The first applicant] did not attend school and is not in any paid employment.", "... the parents ’ conduct was found to be negligent...: [they] did not look after or take elementary steps to provide for [their children ’ s] health (none of the children was registered with a doctor); provided no educational stimulation to their children, had not registered them in nursery school and had limited their right [to take part in] socialisation [activities]. In this context, [the social inquiry report has indicated ] language difficulties in six of the children and anxious behaviour ( dread, remaining on the side-lines, retreating from strangers, lack of confidence) on account of [their fear ] of being kidnapped for organ trafficking.", "... [The applicants] are known in the community as individuals who generate conflict and tensions, and who frequently accuse, criticise and insult the local authorities and their neighbours for financial reasons (they ask for additional benefits, etc.)...", "Similar tensions exist in the relationship between the [applicants] and members of their extended family ... The latter have stated that they are unwilling and unable to take care of [the applicants ’ ] children, with whom they have no contact. Although [the applicants have] received psychological and educational assistance to help them fulfil their role, meet their parental obligations and to make conscious provision for the [essential] needs in raising [the children], overseeing their satisfactory development and educating them, their case has continued to be monitored by the SPAS representatives; [however,] they have been unable to enter the [applicants ’ ] home, as communication has always been difficult and accompanied by accusations and threats.", "[The applicants] have been informed of the effect of neglect on the children ’ s development and about the option [that is available to the authorities] to limit their parental rights where cases of abuse through negligence are found. The protection measures available have been described to them, including maintaining normal relationships with the children throughout the period of separation from the family. The parents have vehemently rejected the appropriate protection measures and have refused to accept the intervention of specialised authorities.”", "27. Also on 5 August 2011, I. was examined by a DGASPC psychologist. It was established on that occasion that the child suffered, among other problems, from delayed motor development and language acquisition, and emotional shortcomings. The psychologist recommended cognitive stimulation, particularly in terms of language. Having regard to the findings of this report, the family ’ s precarious financial position and the parents ’ lack of cooperation in spite of the psychological and educational advice provided by the social services, the DGASPC considered that it was necessary to replace the emergency placement measure in respect of I. by a temporary placement order.", "28. The DGASPC submitted two requests to the county court, seeking to have the emergency placement measure replaced by a temporary placement order. It presented the children ’ s situation as described in the reports of 5 August 2011 (see paragraphs 26 and 27 above) and indicated that no alternative form of care by a family member had been identified.", "29. The applicants, who were present at the hearing and represented by a lawyer acting pro bono, called for the action brought by the DGASPC to be dismissed. They submitted that, in spite of their lack of resources, they were bringing up their children satisfactorily and that the children were not ill.", "30. In two judgments of 7 September 2011 the country court, basing its decision essentially on section 66 of Law no. 272/2004, ordered that the children be temporarily placed in care: by an initial judgment, I. was placed with a child-minder; by the second judgment, the six other children were placed in a special residential centre. Parental rights in respect of all the children were assigned to the president of the Călăraşi County Council.", "31. In reaching this conclusion, the county court noted in its two judgments that the evidence in the case-file indicated that the applicants ’ home was not a suitable place to bring up children, as the floor space was too small and poorly equipped, and there was no guarantee that it was clean. It also noted that serious shortcomings had been observed with regard to the personal hygiene and diet of family members. It noted the parents ’ negligence with regard to the children ’ s health and their refusal to send them to school or allow them to take part in social activities. It also noted that, according to the documents in the files, the children ’ s language development was delayed; they displayed anxiety-related behaviours which, in the county court ’ s view, had been transmitted by their parents; and there were delays in the development of I. ’ s motor skills.", "32. The county court added that although the applicants had received psychological and pedagogical advice to help them fulfil their parental duties, they had difficulties in grasping the children ’ s needs and, through their conduct, still demonstrated negligence towards the underage children. It held that, for the time being, the applicants were not providing the necessary conditions for their children ’ s satisfactory development and that it was in the children ’ s best interests to be placed in care on a temporary basis.", "33. The applicants lodged appeals against those judgments. They asked for the action brought by the DGASPC to be dismissed and submitted written evidence.", "34. On 22 and 23 September 2011 the applicants ’ six oldest children underwent individual psychological tests. These revealed that all of the children were slightly behind their age cohorts in terms of social and educational development and indicated that they required cognitive and educational stimulation. The children began attending school.", "35. By a final judgment of 7 November 2011, the Bucharest Court of Appeal (“the appeal court”) dismissed the applicants ’ appeal against the judgment of 7 September 2011 concerning their six oldest children. It held that the placement measure was justified by the precarious nature of the applicants ’ living conditions and by their attitude towards their children. It noted the temporary nature of the measure, which was due to be lifted once the applicants had submitted the necessary financial and non-financial guarantees with regard to raising their children.", "36. By a final judgment of 28 November 2011, the appeal court dismissed the applicants ’ appeal against the judgment of 7 September 2011 in respect of I. ’ s placement. After endorsing the reasoning set out in the first-instance judgment, the appeal court considered that the lawfulness of its findings was confirmed by other evidence added to the case file, such as, for example, the medical report in respect of this child (see paragraph 22 above).", "D. The applicants ’ applications to have the children returned to the family", "1. The social inquiry visits to the applicants ’ home", "37. Following the temporary placement of their children in care, the applicants had work done on the house to improve their living conditions.", "38. At their request, on 10 January 2012 the DGASPC carried out a social inquiry visit to their home. In its subsequent report, it was noted that the applicants had improved their living conditions by furnishing the house to a minimum level and that they now had electricity and access to drinking water. However, the DGASPC noted that the toilet area was not equipped in such a way as to permit privacy and that various sections of the roof had been visibly damaged by storms. After drawing attention to the family ’ s income, it noted that the applicants had made efforts to maintain contact with their children, whom they had visited on two occasions since they were placed in care, and that the first applicant, at her initiative, had accompanied one of the children to hospital when he was ill. It added that the applicants had stated that they could not afford to travel more frequently to visit the children.", "39. The above-mentioned report further indicated that the municipal authorities, through their representative, had contacted the applicants to propose assistance, which the second applicant had refused. However, the applicants had apparently begun to cooperate with the authorities and to show an interest in maintaining contact with their children and in what they had to do so that the placement measures could be ended. In this connection, the local authorities had encouraged the second applicant to register his residence at the first applicant ’ s address so that they could receive financial assistance from the municipality, and had informed him of the formalities to be completed. They had been offered psychological testing with a view to joining, as appropriate, a family-support programme to develop and consolidate their parenting skills. The applicants had apparently refused to undergo this testing.", "40. Having regard to those factors, the DGASPC concluded that, for the time being, the conditions for ensuring the children ’ s safe return to the applicants had not been met: it emphasised the lack of fuel for heating the house and the second applicant ’ s lack of cooperation with the authorities. It explained that it would be better to delay the children ’ s return to their family and that the parents needed to achieve a certain level of progress, under the SPAS ’ s supervision, to acquire the necessary skills to ensure their children ’ s safety and to be informed of the potential risks to the children. It added that the children ’ s return to their family in the near future was not to be ruled out; in its view, however, given the need to improve certain conditions so as to ensure their safety, the applicants ’ fluctuating attitude in their communication with the authorities and the applicants ’ difficulties in grasping and responding to the children ’ s needs, the placement measure ought to be maintained for the time being.", "41. On 17 January 2012 the DGASPC asked the SPAS to continue to monitor and advise the applicants ’ family and to indicate to it those aspects that it still considered deficient in the visit that had been carried out on 10 January 2012 (see paragraphs 38 to 40 above). It also asked the SPAS to inform it of the measures taken to improve the applicants ’ living conditions.", "42. On 14 February 2012, following the DGASPC ’ s request (see paragraph 41 above), the SPAS made another visit to the applicants ’ home. On this occasion, it was noted that the applicants were maintaining contact with their children by telephone, since it was difficult for them to travel to the residential centre on account of the wintery weather conditions. The visit report established that the applicants ’ physical living conditions had improved and that they had had work done to clean the house. The applicants had promised to enrol the children in school, register them with a doctor, and cooperate with the authorities. The SPAS concluded that the applicants ’ living conditions had improved in comparison with those existing when their children were placed in care and that the return of all the children to their family could be envisaged.", "2. The proceedings before the domestic courts", "43. In the meantime, on 11 January 2012 the applicants had brought an action against the DGASPC before the county court. They requested that the emergency placement order in respect of their seven children be lifted and that they be returned to the family home. They argued that their living conditions were of a satisfactory standard for raising their children, and submitted to the case file a copy of the agricultural register showing that they had free accommodation, and also an electricity bill, evidence of their income and documents stating that three of their seven children were enrolled in school. They added that the children were not being cared for properly in the residential centre.", "44. The DGASPC did not follow the SPAS ’ s recommendation (see paragraph 42 above) and asked for the action to be dismissed on the grounds that, although the material living conditions in the applicants ’ home had improved, this aspect was not sufficient to ensure the children ’ s safety. Nonetheless, the social inquiry report on the SPAS ’ s visit of 14 February 2012 (see paragraph 42 above) was included in the case file.", "45. By a judgment of 15 February 2012, the county court dismissed the applicants ’ action on the ground that, in spite of the improvement in their living conditions, they had no other income apart from the allowances they received for their children and that there was no guarantee that these were used exclusively to care for the children. The court stated that those allowances had to cover the needs of the whole family.", "46. The applicants lodged an appeal. They argued that they provided appropriate living conditions to ensure their children ’ s physical, intellectual and moral development. In addition, the county court had wrongly concluded that their only source of income was from the child allowances, whereas, in their submission, the second applicant was in receipt of two allowances and of income for day-work carried out for various inhabitants of the village. They added that they believed that the family ’ s income ought to benefit the parents, but more especially the children.", "47. The DGASPC requested that the temporary placement measure be maintained.", "48. No new evidence was added to the case file.", "49. By a judgment of 20 March 2012, the appeal court dismissed the applicants ’ appeal. Referring to sections 2, 66 and 68 § 2 of Law no. 272/2004, it considered that the circumstance which had led to the children ’ s temporary placement in care had changed only in part, and held that the contested measure was to be maintained.", "50. In its judgment, the appeal court began by setting out the reasons justifying the temporary placement measure (see paragraphs 31 and 32 above) and stated that since the children had been placed in care the applicants had visited their six children in the residential centre twice and had visited I. once.", "51. It further noted that, since being placed in care, the children had been examined and treated by a doctor and had joined nursery or primary schools, depending on their age. It noted that the children were all receiving assistance in school from a specialised educator who was monitoring each child ’ s situation and involving them in specially selected activities to enable them to catch up in those areas where academic delays had been observed when they were placed in care. It stated that, on the basis of the documents in the case file, the children had progressed in terms of independence, personal hygiene and diet since being placed in care and were developing positively.", "52. The appeal court then described the first meeting that had taken place in November between the applicants and the six children who were housed in the residential centre. After describing the children ’ s reactions, it concluded that the meeting had proceeded normally; the applicants had eaten a meal and played with the children. It noted that the applicants had not expressed any dissatisfaction to the staff about their children ’ s condition. It further noted that, since that meeting, the applicants had contacted the children by telephone and continued to express their fear that their children would be kidnapped for organ trafficking. However, it noted that the second applicant had refused to give his personal telephone number to the child-care staff so that he could be informed about any issue concerning the children, and that communication was possible only when he himself called the residential centre.", "53. The appeal court then compared the conditions considered necessary by the DGASPC for the children to be returned to their family (see paragraphs 38 and 39 above) with the SPAS ’ s findings during the social inquiry visit of 14 February 2012 (see paragraph 42 above). It noted that although the applicants had satisfied certain of the conditions imposed by the DGASPC, there remained room for improvement. It held:", "“The conditions for the children ’ s reintegration [into the family] have not been met, given that the other criteria laid down by the DGASPC to ensure the children ’ s safety are not fulfilled: [namely,] the parents ’ involvement and cooperation...; the repair of the roof; registration of the [second] applicant ’ s home in Mănăstirea in order to be able to receive welfare payments; maintenance of links with the children by increasing the regularity of visits; acceptance of their parental responsibilities (registering the children with a doctor, enrolling them in primary and nursery school); the fact of finding employment; improved relations with the other members of the community; undergoing the psychological tests proposed by the DGASPC ’ s specialists to ascertain their level of parental skills, so as to be able to include them, if appropriate, in a parental support programme and thus develop and consolidate their parental skills; the prevention of major risks to the underage children by accepting monitoring by the Mănăstirea SPAS.", "....", "At the same time, the appeal court notes that it has not been conclusively shown that the applicants have sufficient financial resources to support all of their children and to request [the latter ’ s] return to their family. The two allowances ... received by the [second] applicant, amounting to a total of 646 RON per month, do not represent a source of income that is sufficient to raise and educate seven children, who currently live in better conditions that those that their parents could provide them with. In addition, no evidence has been submitted proving that the applicants have received additional income through day-work carried out in the municipality by the second applicant ....”", "54. The appeal court concluded that, in any event, the improvements in the applicants ’ living conditions noted in the social inquiry report which had been added to the case file (see paragraph 42 above) was not the only condition that the applicants had to fulfil before being able to request their children ’ s return. According to the appeal court, the applicants had still to fulfil the other conditions laid down by the DGASPC, which were intended to ensure that the children ’ s best interests were protected.", "E. Subsequent developments in the case and the children ’ s return to their family", "55. A social inquiry report drawn up on 2 April 2012 noted that the family ’ s material conditions had improved, that the applicants were maintaining contact with their children by telephone and that they visited them once a month, the municipal authorities having provided them with fuel for these journeys. The report stated that the family ’ s monthly income consisted in two allowances received by the second applicant, amounting to a total of RON 646. It was suggested that the municipal authorities make an emergency payment of RON 1,800 to the applicants for repair of the house ’ s roof and the installation of toilets.", "56. By a decision of 4 April 2012, the municipal council granted the first applicant the above-mentioned RON 1,800 in emergency aid.", "57. On 10 April 2012 the applicants had a confidential interview with a psychologist from the DGASPC. Having been informed of the purpose of the interview, namely to assess their parental skills with a view to the children ’ s return to the family, the applicants replied to questions. The report drawn up after this interview indicated that the applicants had low parenting skills: they met only their children ’ s basic needs and were unaware of the effects that their conduct could have on the children ’ s development. It suggested that the applicants be included in a psychological support programme so as to develop and consolidate their parental skills, inform them about how to exercise their rights, put their parental responsibilities into practice and improve their skills in developing relationships with the wider community.", "58. On 17 April 2012 the second applicant registered his home address at the first applicant ’ s home.", "59. A visit to the applicants ’ home by social services on 26 April 2012 revealed that their living conditions had improved, that the applicants had cooperated with the authorities and that they had begun to take the steps recommended to them for the children ’ s well-being. The DGASPC suggested that the six children who had been placed in the residential centre be reintegrated into their family.", "60. In May 2012 the children underwent psychological tests, which revealed an improvement in their general condition since they had been placed in care.", "1. I. ’ s return to the family", "61. By a report of 5 May 2012, the DGASPC noted that the family ’ s situation had improved, that the applicants had visited their son regularly, shown an interest in his health and displayed affection towards him. It also indicated that meetings had been organised not only between I. and his parents but also with his brothers and sisters. Emphasising the clear interest shown by the applicants towards their child, the DGASPC proposed that the placement measure be ended.", "62. On 7 May 2012 the DGASPC brought an action before the county court requesting that I. be returned to the applicants ’ home.", "63. By a judgment of 23 May 2012, the county court decided that it was in I. ’ s best interests to be returned to his family, especially as the conditions for his satisfactory development had been met and his relationship with his family was very strong.", "64. On 21 June 2012 I. was returned to the applicants ’ home.", "2. The return of the six other children to the family", "65. On 7 May 2012 the DGASPC and the applicants brought an action before the county court requesting that the temporary placement order in respect of the six other children be lifted.", "66. By a judgment of 23 May 2012, the county court dismissed the action. The applicants and the DGASPC lodged an appeal against that judgment.", "67. While that appeal was still pending, the six children spent the summer holiday at the applicants ’ home, at their parents ’ request. On 10 July 2012 the social services visited the applicants ’ home, in the presence of the children. This visit indicated that the children would be able to live and develop in satisfactory conditions in the home. The report on this visit was added to the case file before the appeal court.", "68. By a final judgment of 22 August 2012, the appeal court set aside the first-instance judgment and ordered that the children be returned to their family. It pointed out that Law no. 272/2004 sought to protect the best interests of the child and that the public authorities were required to help ensure that children developed and were raised within their families, and explained:", "“... although the provision of a certain level of material comfort is an essential element for minors ’ development, [it is nevertheless the case that] an inadequate income does not in itself represent an insurmountable obstacle to the children ’ s return to their family, provided that the parents show a genuine interest in raising the children themselves...”.", "69. The appeal court held that, given the improvement in the applicants ’ living conditions through assistance from the public authorities, and the change in their conduct towards their children, it was in those children ’ s best interests to re-join their family.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "77. The applicants complained, firstly, that their children had been placed in care unjustifiably, and, secondly, by a letter of 12 April 2012, that they had been unable to obtain the children ’ s return to their family, given the dismissal of their action by the Bucharest Court of Appeal in a final judgement of 20 March 2012. They relied in essence on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "...", "B. Merits", "1. The parties ’ observations", "(a) The applicants", "83. The applicants submitted that their children had been placed in care on unlawful grounds, although they were providing the necessary conditions for the children ’ s upbringing. They complained that, in spite of the improvement in their situation, the domestic authorities had dismissed their request for the children to be returned to the family home. They refereed in this connection to the decisions delivered by the domestic courts in the context of their request that the children be reunited with the family (see paragraphs 41 to 54 above).", "(b) The Government", "84. The Government accepted that the children ’ s placement in care amounted to an interference in the applicants ’ exercise of their right to respect for their private life. That being said, they considered that this interference had been justified.", "85. In this connection, they noted, firstly, that the decision to seek an emergency placement order had been taken by the domestic authorities following a complaint by the first applicant herself (see paragraph 9 above). The relevant authorities had subsequently examined the situation of the applicants ’ family and decided to monitor it regularly by means of social inquiry reports, the conclusions of which had, in the Government ’ s view, been of concern (see paragraphs 12 to 19 above). They further indicated that, prior to the order placing the children in care, the applicants had received psychological and educational advice to assist them in fulfilling their parental obligations, and that the parents had been informed of the consequences of neglect on the children ’ s development and about the possibility that their parental rights would be restricted if abuse or neglect were found. In spite of these measures, no improvement in the children ’ s situation had been noted, and the domestic courts had then ordered that the children be placed in care.", "86. With regard to the dismissal of the applicants ’ action seeking to have the children returned to the family, the Government submitted that the domestic courts had been required to examine the shortcomings which had justified the children ’ s placement in care and the manner in which the applicants had addressed those shortcomings. In dismissing the applicants ’ request, the domestic courts had based their decision not only on the applicants ’ material situation, but also on other factors, such as their psychological and educational abilities and the developmental progress made by the children while in care. They considered that it was clear from the wording of the judicial decisions that the domestic courts had been guided by the best interests of the children.", "87. The Government stressed the temporary nature of the placement measure and indicated that, as soon as it was introduced, the applicants had been encouraged to maintain relationships with their children and been informed of the steps to be taken in order to secure the children ’ s return to the family. They submitted that the family ’ s reunification had always been a priority for the authorities and that, once they had observed that the family conditions were conducive to the children ’ s development, the authorities themselves had applied for the children ’ s return to their parents.", "2. The Court ’ s assessment", "(a) General principles", "88. The Court reiterates that for a parent and child the fact of being together is a fundamental aspect of family life (see Kutzner v. Germany, no. 46544/99, § 58, ECHR 2002-I): domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII). Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX). The notion of “necessity” implies that an interference corresponds to a pressing social need and, in particular, is proportionate to the legitimate aim pursued (see Couillard Maugery v. France, no. 64796/01, § 237, 1 July 2004).", "89. In order to determine whether the impugned measure was “necessary in a democratic society” the Court must consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of Article 8 § 2 (see Soares de Melo, cited above, § 88). The Court takes into consideration the fact that it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII). The removal of a child from the family setting is an extreme measure to which recourse should be had only as a very last resort (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 136, ECHR 2010).", "90. That being stated, the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 70, 26 October 2006, and Couillard Maugery, cited above, § 242).", "91. In this context, the Court reiterates that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents ’ right under Article 8 of the Convention to enjoy a family life with their child (see K. and T. v. Finland, cited above, § 173, and Kutzner, cited above, § 69). There may in addition be positive obligations inherent in an effective “respect” for family life. Thus, where a family tie has been established, the State must in principle act in such a way as to allow the relationship to develop and take any measures that might be appropriate to reunite the parent and child concerned (see Kutzner, cited above, § 61).", "92. The Court also reiterates that, while the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition, the applicable principles are nonetheless similar. In particular, in both cases, the decisive issue in this area is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington v. France, no. 39388/05, § 62, ECHR 2007-XIII), taking into account, however, that the best interests of the child must be of primary consideration (see, to this effect, Gnahoré, cited above, § 59) and may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003-VIII). It is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention, and it is for the Court to ascertain whether the domestic authorities, in applying and interpreting the applicable legal provisions, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child ’ s best interests (see Soares de Melo, cited above, § 92).", "(b) Application of those principles to the present case", "93. In the present case, it was not disputed before the Court that the order for the temporary placement in care of the applicants ’ seven children, the continuation of that measure and the fact of removing the applicants ’ parental authority in respect of all of their children amounted to “interference” in the applicants ’ exercise of their right to respect for their family life. Based as they were on sections 66 and 68 of Law no. 272/2004, the impugned measures were “in accordance with the law”.", "94. The grounds set out by the domestic courts also show that the decisions complained of by the applicants were taken in order to protect the children ’ s interests. The interference complained of thus pursued legitimate aims under Article 8 § 2 of the Convention, namely the protection of the rights and freedoms of others.", "95. It remains to be determined whether the measures were “necessary in a democratic society” to achieve the legitimate aim pursued in the particular circumstances of this case.", "96. In the present case, the Court will first examine the grounds which, according the domestic courts, justified the children ’ s temporary placement in care and the extension of that measure, before considering the authorities ’ actions to reunite the parents and their children.", "i. On the order to place the applicants ’ children in care and its extension", "97. The Court considers that it must examine the contested measure in the more general context of the case, taking into account the events which both preceded and followed the placement order and which resulted in the children ’ s return to their family.", "98. In this connection, it notes that the applicants ’ family was first reported to the DGASPC in September 2010 (see paragraph 11 above) following a complaint submitted by the first applicant to the President of Romania, a complaint which proved to be unfounded (see paragraphs 9 and 10 above). It observes that the DGASPC, supported by the SPAS, subsequently assessed the family ’ s situation and drew up recommendations that the applicants were to follow in order to prevent neglect of their children (see paragraph 13 above). It added that the DGASPC simultaneously informed the applicants about the possible legal measures that could be imposed, in accordance with the law, to protect the children ’ s interests (see paragraph 14 above). The Court attaches significance to the fact that, from the start of the monitoring, the social services identified the family ’ s material deprivation and treated it as distinct from the parenting issues (see paragraphs 13 and 26 above; see, on the contrary, Saviny v. Ukraine, no. 39948/06, § 58, 18 December 2008).", "99. The Court further notes that periodic monitoring of the applicants ’ family was introduced in order to observe how the applicants would comply with the DGASPC ’ s recommendations and to provide them with advice regarding their parental responsibilities. It notes that the SPAS extended its investigation to the applicants ’ wider family and did not base its reports exclusively on the social services ’ findings and on the interactions between those services and the applicants (see paragraph 19 above; for a different situation, see Saviny cited above, § 56, where the Court highlighted the fact that the conclusions about the children ’ s situations had been based solely on the findings of the local authorities, without being corroborated by other evidence). In the absence of practical action on the applicants ’ part or collaboration with the authorities, and at the DGASPC ’ s request, the court ordered the children ’ s emergency placement in care in two judgments of 6 April 2011 (see paragraph 22 above); the children were effectively removed from their parents on 4 August 2011 (see paragraph 24 above).", "100. The Court notes that the order to place the children in emergency care was replaced by temporary placement orders through two country court judgments of 7 September 2011 (see paragraph 30 above); this measure was extended by the appeal court ’ s final judgment of 20 March 2012 (see paragraph 49 above).", "(α ) The reasons justifying the children ’ s temporary placement in care", "101. The Court notes that, as part of the proceedings which resulted in the children ’ s temporary placement in care (see paragraphs 30 to 32 above), the domestic courts had accused the applicants of failing to provide adequate living conditions for their children. It observes that the domestic courts had also noted that the applicants were negligent with regard to the children ’ s health and their education and social development and, lastly, that they had accused the applicants of failing to cooperate with the social services.", "102. With regard to the applicants ’ state of destitution, an argument regularly put forward both by the DGASPC and by the national courts to justify the need to place the children temporarily in care, the Court reiterates that this ground cannot form the sole reason on which the decision of the domestic courts is based (see R.M.S. v. Spain, no. 28775/12, § 84, 18 June 2013).", "103. The Court further notes that in the present case the applicants ’ ability to raise and educate their children, and the manner in which they fulfilled their duty to ensure their children ’ s safety, were questioned. The social services, which monitored the family on a regular basis, drew attention in their reports to the slightly delayed development and speech issues in all the children. These developmental delays and problems had allegedly been caused by a lack of cognitive stimulation and by limited contact with others (see paragraphs 26 and 34 above). The reports in question also described anxiety-related behaviours on the part of the children (see paragraphs 25 and 26 above); this anxiety had been transmitted to them, in the county court ’ s view, by their parents (see paragraph 31 above). Equally, the health of the youngest child was a matter of concern when he was taken into care by the authorities (see paragraph 25 above). Having regard to these conclusions, reached by specialists following a close examination of the children, the Court acknowledges that in the present case the authorities could have had legitimate fears about the children ’ s lack of adequate developmental and educational progress, as observed by the social services.", "104. It also notes that, before proposing that the children be placed in care, the social services monitored the applicants ’ family and attempted to advise the adults about the measures to be taken in order to improve their situation and that of the children. However, according to the relevant reports, the applicants displayed a certain hostility towards the social workers, which had undermined the cooperation between them and the social services (see paragraph 26 above; for a contrasting situation, see Saviny, cited above, §§ 14-16, where the applicants themselves unsuccessfully requested assistance from the authorities ). The Court emphasises that, admittedly, in seeking to protect children, it is always preferable to envisage less extreme measures than separation from their parents. That being stated, it considers that, in the present case, taking into account the lack of cooperation from the parents, it was difficult for the authorities to monitor the children ’ s situation and to provide them with the necessary support.", "105. The Court therefore notes that, in the present case, the domestic courts ’ decisions regarding the children ’ s temporary placement in care were not based exclusively on the findings of material deprivation on the applicants ’ part. In those circumstances, and in view of the clearly paramount interests of the children, the Court considers that the temporary placement order cannot be challenged under Article 8 of the Convention.", "(β ) The extension of the temporary placement order", "106. Following the children ’ s temporary placement in care, and at the applicants ’ request, the relevant courts reviewed the need to maintain the measure in question six months after its introduction (see paragraph 43 above). The DGASPC stressed the need to maintain the measure, while taking into account the improvements observed in the applicants ’ situation; it explained the reasons why, in its view, the measure was justified (see paragraphs 40 to 44 above). By a judgment of 20 March 2012, the appeal court maintained the temporary placement order, still in the children ’ s interest, although the applicants submitted evidence of improvements in their material living conditions and had begun to cooperate with the authorities (see paragraphs 38 and 39 above).", "107. The Court notes at the outset that the applicants are not claiming that there has been any breach of the procedural guarantees in the proceedings which resulted in the maintenance of the placement order.", "108. In the context of these proceedings, new and updated reports describing the situation of the applicants, who had attempted to improve their material conditions after the removal of their children, were added to the case file (see paragraphs 38 and 42 above).", "109. Admittedly, according to the wording of the county court ’ s judgment, that instance essentially based its decision on the applicants ’ material deprivation and their financial difficulties (see paragraph 45 above). However, the county court judgment was supplemented by that of the appeal court, which provided a full explanation of why it was necessary to maintain the placement order (see paragraphs 49 to 54 above). In issuing its judgment, the appeal court considered the entirety of the facts before it; further, it compared the family ’ s situation when the children were placed in care with that of the applicants when the case was examined, both in terms of the latter ’ s material living conditions and with regard to developments in the relationships between the applicants and their children and the applicants ’ collaboration with the social services (see paragraphs 50 et seq. above, and, in contrast, Soares de Melo, cited above, § 115).", "110. The appeal court took into consideration the positive changes in the condition of all the children since they had been placed in care (see paragraph 51 above), the fact that contact had been maintained between the applicants and their children and the applicants ’ efforts to visit their children (see paragraph 52 above). After having noted that the applicants had improved their material situation, the appeal court held that further progress ought to be made in this area (see paragraph 53 above). However, as with the order to place the children temporarily in care, in these proceedings the applicants ’ material deprivation was not the only aspect taken into account by the appeal court in deciding that it was necessary to maintain the placement. It also examined how the collaboration between the applicants and the social services had developed with regard to the applicants ’ parental responsibility (see paragraph 53 above).", "111. The Court observes that, in its report of 14 February 2012 (see paragraph 42 above), the SPAS proposed to the DGASPC that the children be returned to the family and that the DGASPC did not follow this recommendation. Nonetheless, it is appropriate to note that the report of 14 February 2012 was added to the case file before the domestic courts, which were able to reach their decision in the light of all the material in their possession: the appeal court clearly noted an improvement in the applicants ’ material living conditions, but nonetheless held, on the basis of the evidence and the updated reports, that the applicants had not yet complied with all of the DGASPC ’ s recommendations and that their behaviour did not imply that they had fully shouldered their responsibility to raise their children in a completely safe environment. Thus, the appeal court set out the reasons behind its decision to adhere to the DGASPC ’ s position rather than to that of the SPAS (see paragraph 53 above).", "112. The Court accordingly considers that it is clear from the facts of the case that both the DGASPC and the domestic courts had given consideration not only to the improvement in the family ’ s material conditions, but also to the applicants ’ awareness of their parental role. In consequence, the Court considers that there were “relevant and sufficient” reasons for extending the temporary placement order.", "ii. The necessary measures to reunite the family", "113. The Court reiterates, in the first place, that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child (see K. and T. v. Finland, cited above, § 178).", "114. By way of introduction, the Court observes that the measure ordered in the present case was intended as a temporary means of providing for the applicants ’ children. In addition, the six oldest children were placed together in the same residential centre in order to maintain the sibling ties (see, for a different situation, Saviny, cited above, § 59, where the children were separated and placed in different care centres). In view of his age, the youngest child was placed, in accordance with the applicable legal norms, with a professional child-minder (see paragraphs 24 ... above).", "115. The Court further highlights that it is clear from the case file that the children ’ s development and health improved over the period that they were in care (see paragraphs 51 and 60 above) and that their situation was monitored closely and regularly by the social services.", "(α ) The contacts between the applicants and their children", "116. The Court notes that, according to the evidence in the case file, the applicants in the present case were not forbidden from visiting their children throughout the duration of the placement. Furthermore, it notes that need to preserve the ties between the applicants and their children was a constant concern to the authorities and that the development of their relationship was an element taken into consideration by the national courts (see paragraphs 52, 63 and 69 above) and the social services (see paragraphs 25 and 26 above) in their decisions to order and extend the temporary placement measure.", "117. The Court further observes that the domestic authorities took the necessary measures to ensure that the visits between the applicants and their children took place in an atmosphere that was conducive to the development of family ties (see paragraph 52 above). With regard to the regularity of those visits, the Court notes that, during the social inquiry visit of January 2012, the applicants informed the DGASPC that they did not have sufficient resources to visit their children more frequently (see paragraph 38 above). They subsequently referred to poor weather conditions in explaining that it had been impossible to visit their children (see paragraph 42 above). In any event, the Court notes that, after being instructed to continue monitoring the applicants ’ situation, the municipal authorities provided them, from April 2012 onwards, with the necessary fuel for travel, so that they could visit their children every month (see paragraph 55 above).", "118. The Court notes that telephone contacts were maintained, and that calls took place at the applicants ’ initiative (see paragraphs 52 and 55 above).", "119. Lastly, the Court observes that the social services took steps to prepare the children ’ s return to their parents by organising a meeting between the youngest child and his siblings and parents (see paragraph 61 above). Equally, they allowed the older children to spend the summer holidays with the family (see paragraph 67 above).", "120. The Court therefore considers that the authorities constantly made genuine efforts to maintain the ties between the children and their parents.", "(β ) The measures aimed at improving the applicants ’ situation", "121. The Court notes that the social services attempted to monitor the applicants ’ situation and to advise them on the steps to be taken to improve their financial position and enhance their parenting skills.", "122. With regard to financial support, it notes that the social services attached to the municipal council recommended to the second applicant that he take the necessary steps to register his residence in Mănăstirea, so that the relevant local authorities could assess his situation and propose allowances. They also provided the first applicant with financial assistance to have the roof of the house repaired and toilets installed (see paragraphs 55 and 56 above), aspects that the appeal court had found in its judgment of 20 March 2012 to be unsatisfactory and dangerous in terms of the children ’ s safety in the home (see paragraph 53 above). In addition, as already indicated above, they provided the applicants with the necessary fuel in order to visit their children on a regular basis (see paragraph 55 above).", "123. As regards securing an improvement in the applicants ’ parental skills, the Court notes that the social services regularly attempted to advise the applicants about their obligations to provide for their children ’ s development and education. They insisted on carrying out an assessment of the applicants ’ needs so as to understand the situation and provide for the children ’ s needs, and offered the applicants appropriate support (see paragraphs 39 and 57 above).", "124. Thus, the Court notes that the national authorities made efforts to facilitate the children ’ s return to their parents: they monitored the situation of the family, and, as soon as the applicants had indicated their willingness to cooperate, tangible measures were rapidly put in place to comply with the conditions imposed by the DGASPC for the children ’ s return. The domestic authorities adopted a constructive attitude as soon as there were signs of improvement in the applicants ’ situation and proposed that the children be returned to the family.", "125. In those circumstances, the Court cannot but conclude that the authorities did everything that could reasonably have been expected of them to facilitate the children ’ s return to their parents.", "(c) Conclusion", "126. In the present case, the Court is satisfied that the temporary placement in care of the applicants ’ children was based on reasons which were not only relevant but also sufficient for the purposes of Article 8 § 2 of the Convention. Equally, it is clear from the entire case file that the placement order was intended from the outset to be temporary in nature. The Court considers that, by closely monitoring the situation of the children and the applicants, the relevant authorities endeavoured at all times to safeguard the children ’ s interests, while attempting to strike a fair balance between the applicants ’ rights and those of the children.", "127. In consequence, the Court concludes that the interference with the applicants ’ rights was “necessary in a democratic society” and that there has been no violation of Article 8 of the Convention in the present case." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants in application no. 11308/16 (Tlapak) are a mother and father. Their son J. was born on 15 January 2012. The applicants in application no. 11344/16 (Pingen) are also a mother and father. Their two daughters A. and B. were born on 7 October 2009 and their son G. was born on 23 May 2013. All the applicants are members of the Twelve Tribes Church ( Zwölf Stämme ) who lived in a community of around twenty members of the church in Wörnitz, Germany. A second community with around 100 members was located in the nearby village of Klosterzimmern.", "A. Background to the case", "7. In 2012 the press reported about the Twelve Tribes Church and its position on the right of parents to apply corporal punishment, especially caning. Furthermore, statements by a former member of the community were published, confirming that children had been punished with rods.", "8. In 2012 and 2013 the local youth offices ( Jugendamt ) visited both communities and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting.", "9. On 16 August 2013 the Klosterzimmern youth office and the Nördlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community in Klosterzimmern. The footage, filmed with a hidden camera, showed the caning of various children between the ages of three and twelve. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished.", "10. On 3 September 2013 the Ansbach Family Court, upon an application by the competent youth office, made an interlocutory order regarding all children in the Twelve Tribes community in Wörnitz, including the applicants ’ children. The court withdrew the applicants ’ rights to decide where their children should live ( Aufenthaltsbestimmungsrecht ), and to take decisions regarding their health ( Gesundheitsfürsorge ), schooling and professional training, and transferred those rights to the youth office. The court based its decision on the above-mentioned video footage and the testimony of the television reporter and six former members of the Twelve Tribes community. It concluded that there was a reasonable likelihood that the children would be subjected to corporal punishment in the form of caning and so-called “ restraining ”, involving holding a child ’ s limbs tight and pressing his or her head down until the child had no strength left to cry and struggle.", "11. On 5 September 2013 the youth office took the community ’ s children into care. They were supported by around thirty police officers, who, at the same time, searched the community ’ s premises and found a wooden rod.", "12. The applicants ’ children were subsequently examined but no physical signs of abuse or beating were revealed.", "13. J. Tlapak was subsequently placed in a foster family. As he was still being breastfed, his mother was permitted daily visits to give him milk.", "14. A. and B. Pingen were also placed in a foster family. Their aunt ’ s family was approved as fosterers and they were then placed with them.", "15. Since G. Pingen was then only one year and four months old and was also still being breastfed, he and his mother were placed together in a foster family.", "1. Application no. 11308/16 (Tlapak)", "16. On 13 September 2013 the Ansbach Family Court heard the applicants and on 23 September 2013 it upheld its order of 3 September 2013 in an interim decision.", "17. On 2 December 2013 the Nuremberg Court of Appeal dismissed an appeal by the applicants against the interim decision of the Family Court in essence, but set the decision aside to the extent it concerned the parental right to decide on schooling matters. Given the son ’ s age, the court held that there was no need to decide on that issue in the interim proceedings.", "18. In 2015 the applicants moved – without their son J. – to the Czech Republic, where they have been living since.", "2. Application no. 11344/16 (Pingen)", "19. The Ansbach Family Court heard the applicants on 13 September 201 3 and the applicants ’ daughters on 18 September 2013 in the foster family ’ s home. The daughters reported that their parents had hit them on the hand with a rod as a form of corporal punishment. On 23 September 2013 the Family Court upheld its order of 3 September 2013.", "20. On 2 December 2013, upon an appeal by the applicants, the Nuremberg Court of Appeal reversed the decision to withdraw the right to decide where G. Pingen should live. The earlier decision on the daughters was upheld, with the proviso that the parents were to retain the right to take decisions on school matters and on their daughters ’ choice of education or training and career.", "21. The son was subsequently returned to the applicants, who moved first to Belgium and later to the Czech Republic, where they have been living since. The applicants ’ daughters are still in the care of the foster family (see paragraph 14 above).", "B. The main proceedings", "1. Application no. 11308/16 (Tlapak)", "22. Upon an application made by the applicants on 9 September 2013 the Family Court initiated the main proceedings and, on 24 September 2013, it commissioned an expert opinion.", "23. After interviewing the applicants and observing a meeting between them and their son, the expert submitted a written opinion on 19 December 2013. He found that even though the applicants had a loving attitude towards their son, they considered corporal punishment with objects as an appropriate and necessary parenting method. Owing to their willingness to apply that method to their son, there was a likelihood bordering on certainty that if he remained with them, they would apply corporal punishment. This, the expert concluded, would significantly jeopardise the son ’ s development and result in psychological problems. Overall, it was in the child ’ s best interests to place him away from his parents to protect him from the applicants ’ parenting methods, which were dangerous for the child. Since their parenting was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and lacked the will to cooperate with the authorities or accept help. Consequently, less intrusive measures could not be considered sufficient.", "24. Subsequently the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert ’ s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to an assessment of their son.", "25. In separate proceedings the Family Court, on 1 August 2014, issued an interim decision in which it withdrew the applicants ’ parental right to decide on the son ’ s assessment by the court-appointed expert and consented to such a measure.", "26. On 4 August 2014, the Family Court forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism and gave details of his methodology in a letter of 15 August 2014.", "27. In a hearing on 19 September 2014 the court proposed an agreement between the applicants and the youth office, with the aim of returning their son to them. However, the applicants and the youth office did not agree on a settlement owing in particular to a disagreement about the son attending a state school and play therapy. Moreover, there were concerns about the parents attending a development course and assisting with medical measures. The youth office considered those aspects as essential and declined the partial settlement proposed by the applicants.", "28. After hearing the applicants ’ son in the home of the foster family where he had been placed on 21 October 2014, the Family Court decided on 22 October 2014 to withdraw the applicants ’ right to decide where their son should live and to take decisions regarding his health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian.", "29. The Family Court stated that it would be very detrimental to the best interests of the child if the son continued to live with the applicants owing to their parenting methods. Based, in particular, on the court ‑ commissioned expert opinion and the statements by the applicants during the court proceedings, the court concluded that there was a high, concrete probability that the son would be subjected to corporal punishment using physical objects over the course of several years. According to the expert, this would give rise to an expectation that the applicants ’ son would suffer from psychological issues. Even though separating the parents and the child constituted a severe interference with their right to a family under Article 6 of the Basic Law ( see paragraph 53 below) and may possibly have negative consequences for the child, that interference was justified in the case at hand. Corporal punishment of the kind at issue was particularly degrading for a child. It was not only banned by Article 1631 § 2 of the Civil Code ( see paragraph 54 below) but also constituted an interference with a child ’ s human dignity, protected under Article 1 of the Basic Law ( see paragraph 50 below), and a child ’ s right to physical integrity, protected under Article 2 of the Basic Law ( see paragraph 51 below).", "30. The court also held that the risk to the child could not be averted using less drastic measures. Throughout the course of the proceedings the applicants had unreservedly advocated their parenting style and had refused to accept the opinion that the type of corporal punishment they endorsed was covered by the ban on violence under Article 1631 of the Civil Code. The physical effects of such punishment were only short-lived, which was why it would only be possible for the youth office to observe any such effects if it made unannounced visits and the child had – by chance – been punished immediately prior to such a visit. According to the expert ’ s explanations, the psychological consequences could, by contrast, only be determined after a longer period of time and they were difficult to discern at first glance. Although the applicants had most recently indicated to the court that they were ready to refrain from corporal punishment in the future, the court regarded such statements as not being compelling since they had not provided any grounds. The Family Court, nonetheless, pointed out that the applicants were free to reach an out-of-court settlement with the youth office concerning the conditions under which the son could be returned after the proceedings had been concluded. However, the previous settlement proposal had been refused because the applicants had not been willing to agree to have their son take part in play therapy and attend a state school.", "31. In regard to the fact that the applicants had withdrawn their consent to being examined by the court-appointed expert after the expert opinion had already been submitted, both for themselves and their child, the court held that this did not render the expert ’ s report unusable in the proceedings. While the court had given its own consent in place of the parents ’ as far as it concerned the son, the parents ’ actions on that point could not, in light of the state ’ s obligation to protect children under constitutional law, hinder the use of the expert opinion in the proceedings. Allowing parents to reject expert opinions they disagreed with by retrospectively withdrawing consent to an examination would prevent any effective protection of children in family court proceedings.", "32. The applicants subsequently appealed against the decision of the Family Court. The Court of Appeal, after hearing the applicants, their son, the son ’ s guardian ad litem, a representative of the youth office, the court ‑ appointed expert and the expert commissioned by the applicants, dismissed the applicants ’ appeal on 26 May 2015.", "33. In a decision of thirty-nine pages, the Court of Appeal considered in detail the applicants ’ statements concerning corporal punishment, publications by the Twelve Tribes Church, the expert ’ s opinion and the criticism of the report by the privately commissioned expert. Overall it confirmed the decision and reasoning of the Family Court of 22 October 2014. The court emphasised that not all individual violations of the right to a non-violent upbringing under Article 1631 § 2 of the Civil Code ( see paragraph 54 below) could justify a withdrawal of parental authority. However, there was a fear in the applicants ’ case that systematic caning with a rod would be the reaction whenever the child was deemed to have broken a rule. There was moreover already a threat to the child ’ s best interests as he would live in constant fear of suffering physical pain and experiencing the resulting humiliation as psychological suffering. Beatings as such, the court held, constituted child abuse and misuse of parental authority. It was of no relevance whether or not lasting physical injuries occurred.", "34. The court further held that on account of their religious beliefs, the applicants were convinced that their child-rearing methods were legitimate. Accordingly, they were neither willing nor able to avert the danger to their child and the recent contradictory statements they had made could not be considered as credible.", "35. On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1467/15), without providing reasons.", "2. Application no. 11344/16 (Pingen)", "36. The Family Court, upon an application by the applicants dated 9 September 2013, initiated the main proceedings and on 24 September 2013 commissioned an expert opinion.", "37. After interviewing the applicants, their two daughters and the children ’ s foster parents, and observing a meeting between the applicants and their children, the expert submitted a written opinion on 23 December 2013. He stated that the applicants and their daughters had confirmed that the parents had used a rod as corporal punishment on the daughters and that even though the applicants had a loving attitude towards their children, they considered corporal punishment using physical objects as an appropriate and necessary parenting method. Given the past incidents of corporal punishment and the applicants ’ general willingness to use that method on their children, it was virtually certain that they would subject them to corporal punishment again. The expert concluded that the applicants ’ rigid, authoritarian parenting style and their conviction that children should be raised to obey their parents by means of corporal punishment using physical objects from the age of three conflicted significantly with the best interests of the children and was also detrimental to the unimpaired development of their personality. He expected that such methods would likely result in psychological issues. Overall, it was in the best interests of the children to place them away from their parents. Since the applicants ’ parenting style was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and were not fully prepared to cooperate with the authorities and accept help. Consequently, measures that infringed on their rights to a lesser degree could not be considered sufficient.", "38. Subsequently, the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert ’ s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to the assessment of their three children.", "39. In separate proceedings the Family Court, on 1 September 2014, issued an interim decision in which it withdrew the applicants ’ parental right to decide on the children being assessed by the court-appointed expert and consented to the psychological examination. It also forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism in it and gave details of his methodology in a letter of 1 October 2014.", "40. In a hearing of 2 9 September 2014 the parties discussed an agreement between the applicants and the youth office, with the aim of returning the daughters to the applicants and protecting all three children. However, the applicants and the youth office could not agree on a settlement as there was disagreement in particular on the children attending a state school and therapy. Moreover, the applicants were unwilling to remain in Germany under the supervision of the youth office for an extended period of time.", "41. After hearing the applicants and their daughters several times, including in parallel proceedings, the Family Court decided on 21 October 2014 to withdraw the applicants ’ right to decide where all three children should live and to take decisions regarding the children ’ s health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian. Additionally, the court ordered the applicants ’ son to be handed over to the youth office.", "42. In its reasoning, which was similar to that in application no. 11308/14 (see paragraphs 29-31 above), the Family Court held that the applicants ’ parenting methods meant that it would be very detrimental to the best interests of all three children to continue to live with their parents. The court emphasised that the aim of Article 1666 of the Civil Code ( see paragraph 55 below) was not to penalise past child abuse or views on parenting that were in contradiction to Article 1631 § 2 of the Civil Code ( see paragraph 54 below), but to prevent imminent threats to the best interests of children. Based, in particular, on the opinion by the court ‑ appointed expert and the statements by the applicants and their children, the court concluded that there was a high, concrete probability that the children would be subjected to systematic corporal punishment using physical objects, which would in turn be detrimental to the best interests of the children in physical and psychological terms. The severe interference with the applicants ’ right to a family under Article 6 of the Basic Law (see paragraph 53 below) by separating them from their children was nonetheless not only justified but also proportionate since the risk to the children could not be averted using milder means. Besides the problem of detecting corporal punishment through unannounced visits by the youth office ( see paragraph 30 above ), the court also pointed out that the applicants had consistently, over the course of the proceedings, shown a lack of willingness to cooperate with the youth office and had refused to accept state schools, both of which the court found necessary to prevent degrading corporal punishment and ensure the children ’ s autonomous development. Furthermore, the court held that it could be expected that the applicants would leave Germany if their children were returned to them and thereby elude any orderly monitoring and supervision by the competent youth office. Lastly, the court concluded that the withdrawal of the consent to being examined by the court-appointed expert did not hinder the use of the expert opinion in the proceedings (see paragraph 3 1 above).", "43. The applicants subsequently appealed against the decision of the Family Court and applied for an interim measure to suspend the order to hand their son over to the youth office.", "44. On 15 December 2014 the Court of Appeal provisionally suspended enforcement of the Family Court ’ s order on the son. The court held that given his age, one year and six months, and the fact that he was still being breastfed, enforcement would constitute an especially serious interference with the applicants ’ rights. In addition, the son ’ s young age meant there was no imminent and sufficient risk of him being subjected to corporal punishment.", "45. During the appeal proceedings the applicants proposed a settlement to the Court of Appeal. The applicants would temporarily return to Germany and for two months they would gradually be reunited with their two daughters under the supervision of the youth office. At the end of that period, if the family reunification had been successful, the Family Court ’ s decision would be set aside and the whole family would move to the Czech Republic.", "46. On 26 March 2015 the Court of Appeal conducted an oral hearing during which it heard, inter alia, the applicants, their daughters, the court ‑ appointed expert, the expert commissioned by the applicants and the children ’ s guardian ad litem. The applicants ’ daughters stated that, even though they would like to see their parents more often, they would prefer living with their foster parents. Moreover, a representative of the youth office indicated during the hearing that the applicants had not distanced themselves from their previous parenting methods in a credible way and that therefore the youth office was not able to agree to the settlement they had proposed.", "47. On 10 June 2015 the Court of Appeal, in a detailed decision of forty ‑ five pages, rejected the applicants ’ appeal and confirmed the reasoning of the Family Court. The court held that corporal punishment with a rod, prohibited by Article 1631 § 2 of the Civil Code ( see paragraph 54 below), constituted the physical abuse of children and if applied regularly and repeatedly the competent authorities were obliged under Article 1666 of the Civil Code ( see paragraph 55 below) to intervene and take the necessary measures in the best interests of the children. The applicants ’ daughters had consistently stated during the proceedings that they had been caned on a daily basis and the applicants themselves had confirmed that they had “ disciplined ” their daughters with a rod. The court was convinced that the applicants would continue to use corporal punishment on their children in the future since that parenting method was already firmly established and was based on religious beliefs from which the applicants had not fundamentally distanced themselves. Their statements had shown that they, in essence, continued to approve of corporal punishment and considered it an appropriate parenting method. The fact that the applicants had recently acknowledged that their children had a right to a non-violent upbringing did not mean they had changed their attitudes to parenting in a permanent way; rather, that had only served a procedural purpose, namely to have their daughters returned to them as soon as possible. In the court ’ s opinion, the applicants were only prepared to refrain temporarily from corporal punishment. The court was therefore unable to find that the applicants had changed their way of parenting and distanced themselves from corporal punishment in a manner which the court could regard as credible. Consequently, there was an imminent danger of systematic corporal punishment if the two daughters were returned to their parents. The danger also existed for the applicants ’ son as there was no fixed age when the applicants started “ disciplining ” their children as they rather considered it a tool to enforce their parental authority. As the two - year - old son was expected to start his “ phase of defiance ” soon, it also had to be expected that the applicants would respond with caning.", "48. The Court of Appeal also confirmed that the applicants ’ withdrawal of their consent to being assessed did not prevent the courts from using the expert opinion as evidence and that there were no less severe measures available to avert the imminent detriment to the best interests of the children resulting from their parents ’ use of corporal punishment. In that regard, the court, inter alia, pointed to the fact that the applicants had already left Germany with their son and refused to return to live there permanently. The competent authorities would therefore from the very outset be unable to provide sufficient support to the family or effectively monitor the applicants ’ parenting methods.", "49. On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1589/15), without providing reasons." ]

[ "II. RELEVANT DOMESTIC LAW", "A. German Basic Law ( Grundgesetz )", "50. Article 1 § 1 of the Basic Law reads as follows:", "“(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. ”", "51. Article 2 of the Basic Law, in so far as relevant, reads as follows:", "“(1) Every person shall have the right to the free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral law.", "(2) Every person shall have the right to life and physical integrity. ...”", "52. Article 4 of the Basic Law, in so far as relevant, reads as follows:", "“(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.", "(2) The undisturbed practice of religion shall be guaranteed. ... ”", "53. Article 6 of the Basic law, in so far as relevant, reads as follows", "“(1) Marriage and the family shall enjoy the special protection of the state.", "(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.", "(3) Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. ... ”", "B. German Civil Code ( Bürgerliches Gesetzbuch )", "54. Article 1631 § 2 of the German Civil Code reads as follows:", "“Children have the right to a non-violent upbringing. Physical punishment, psychological injury and other degrading measures are prohibited.”", "55. Article 1666 of the German Civil Code reads, as far as relevant, as follows:", "“ (1) Where the physical, mental or psychological best interests of a child or a child ’ s property are endangered and the parents do not wish, or are not able, to avert the danger, a family court must take the necessary measures to avert the danger.", "...", "(3) The court measures in accordance with subsection (1) include in particular", "instructions to seek public assistance, such as benefits of child and youth welfare and healthcare,", "instructions to ensure that the obligation to attend school is complied with,", "prohibitions to use the family home or another dwelling temporarily or for an indefinite period, to be within a certain radius of the home or to visit certain other places where the child regularly spends time,", "prohibitions to establish contact with the child or to bring about a meeting with the child,", "substitution of declarations of the person with parental authority,", "part or complete removal of parental authority. ”", "56. Article 1666a of the German Civil Code, in so far as relevant, reads as follows:", "“(1) Measures which entail a separation of the child from his or her parental family are only allowed if other measures, including public support measures, cannot avert the danger ...", "(2) The right to care for a child may only be withdrawn if other measures have been unsuccessful or if it is to be assumed that they do not suffice to avert the danger.”", "C. Courts Constitution Act ( Gerichtsverfassungsgesetz )", "57. According to section 198 of the Courts Constitution Act, a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. In so far as relevant, section 198 reads:", "“(1) Whoever, as the result of the unreasonable length of a set of court proceedings, experiences a disadvantage as a participant in those proceedings shall be given reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the participants and of third persons therein.", "(2) A disadvantage not constituting a pecuniary disadvantage shall be presumed to have occurred in a case where a set of court proceedings has been of unreasonably long duration. Compensation can be claimed therefore only in so far as redress by other means, having regard to the circumstances of the particular case, is not sufficient in accordance with subsection (4). Compensation pursuant to the second sentence shall amount to EUR 1,200 for every year of the delay. Where, having regard to the circumstances of the particular case, the sum under the third sentence is inequitable, the court can assess a higher or lower sum. ...", "(5) A court action to enforce a claim under subsection (1) can be brought at the earliest six months after the filing of the notice of delay. ... ”", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "A. United Nations Convention on the Rights of the Child of 26 January 1990", "58. The United Nations Convention on the Rights of the Child entered into force for Germany on 5 April 1992. The relevant parts read as follows:", "“ Article 3", "(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ...", "Article 9", "(1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence.", "(2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. ...", "Article 19", "(1) States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. ...", "Article 37", "States Parties shall ensure that:", "(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ... ”", "59. The Committee on the Rights of the Child of the United Nations provided in its general comment no. 13 (2011) (The right of the child to freedom from all forms of violence (CRC/C/GC/13); published on 18 April 2011) guidance on the interpretation of Article 19 of the Convention on the Rights of the Child. The relevant parts read:", "“ IV. Legal analysis of article 19", "A. Article 19, paragraph 1", "1. ‘ ... all forms of ... ’", "No exceptions. The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child ’ s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.", "...", "Physical violence. This includes fatal and non-fatal physical violence. The Committee is of the opinion that physical violence includes:", "(a) All corporal punishment and all other forms of torture, cruel, inhuman or degrading treatment or punishment;", "...", "Corporal punishment. In general comment No. 8 (para. 11), the Committee defined “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading.", "...", "Harmful practices. These include, but are not limited to:", "(a) Corporal punishment and other cruel or degrading forms of punishment;", "... ”", "60. In its general comment no. 14 (2013) (The right of the child to have his or her best interests taken as a primary consideration (CRC/C/GC/14); published on 29 May 2013) the Committee provided guidance on the interpretation of Article 3 § 1 of the Convention and the factors that should be taken into account when making a best interests assessment. The relevant parts read:", "“ A. Best interests assessment and determination", "...", "1. Elements to be taken into account when assessing the child ’ s best interests", "52. Based on these preliminary considerations, the Committee considers that the elements to be taken into account when assessing and determining the child ’ s best interests, as relevant to the situation in question, are as follows:", "(a) The child ’ s views", "...", "(b) The child ’ s identity", "...", "(c) Preservation of the family environment and maintaining relations", "...", "60. Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when [ ... ] such separation is necessary for the best interests of the child”. ...", "61. Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child. Before resorting to separation, the State should provide support to the parents in assuming their parental responsibilities, and restore or enhance the family ’ s capacity to take care of the child, unless separation is necessary to protect the child.", "...", "(d) Care, protection and safety of the child", "...", "73. Assessment of the child ’ s best interests must also include consideration of the child ’ s safety, that is, the right of the child to protection against all forms of physical or mental violence, injury or abuse (art. 19), sexual harassment, peer pressure, bullying, degrading treatment, etc., as well as protection against sexual, economic and other exploitation, drugs, labour, armed conflict, etc.(arts. 32-39).", "74. Applying a best-interests approach to decision-making means assessing the safety and integrity of the child at the current time; however, the precautionary principle also requires assessing the possibility of future risk and harm and other consequences of the decision for the child ’ s safety.", "(e) Situation of vulnerability", "...", "(f) The child ’ s right to health", "...", "(g) The child ’ s right to education", "... ”", "B. European Social Charter of 18 October 1961", "61. The European Social Charter entered into force vis-à-vis Germany on 27 January 1965. Its Article 17 reads as follows:", "“ Article 17 – The right of mothers and children to social and economic protection", "With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services.”", "62. In a Resolution adopted on 17 June 2015 (CM/ResChS(2015)12), the Committee of Ministers of the Council of Europe stated the following regarding the interpretation of this provision:", "“There is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comment Nos. 8 and 13 of the Committee on the Rights of the Child. Most recently, the following interpretation of Article 17 of the Charter has been given as regards the corporal punishment of children was made in the decision World Organisation against Torture (OMCT) v. Portugal, Complaint No. 34/2006, decision on the merits of 5 December 2006, sections 19-21: ‘ To comply with Article 17, States ’ domestic law must prohibit and penalise all forms of violence against children that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well-being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, States must act with due diligence to ensure that such violence is eliminated in practice. ’ ”", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "63. Given their similar factual and legal background, the Court decides that the two applications shall be joined by virtue of Rule 42 § 1 of the Rules of Court.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "64. The applicants complained that the decisions of the domestic courts in the main proceedings to withdraw parts of their parental authority had been disproportionate and had been based on unfair proceedings that had lacked sufficient factual foundation. They further alleged that their religious beliefs were the reason their parental rights had been withdrawn and that they had been prevented from raising their children in compliance with their religious beliefs. Lastly, the applicants complained that the main proceedings before the family courts had been unreasonably long. The applicants relied on Article 8 of the Convention. Moreover, they invoked Articles 6 § 1 and 9 of the Convention and Article 2 of Protocol No. 1. The Court, as master of the characterisation to be given in law to the facts of the case (see Kutzner v. Germany, no. 46544/99, § 56, ECHR 2002 ‑ I ), finds it appropriate to examine all complaints solely under Article 8 of the Convention, which reads, as far as relevant, as follows:", "“1. Everyone has the right to respect for his ... family life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. Length of proceedings", "65. As far as the applicants ’ complaint about the length of the main proceedings is concerned, the Court reiterates that in relation to the State ’ s positive obligations under Article 8 of the Convention it has previously considered that ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of Article 8 of the Convention (see, for example Moog v. Germany, nos. 23280/08 and 2334/10, § 87, 6 October 2016; Z. v. Slovenia, no. 43155/05, § 142, 30 November 2010; and V.A.M. v. Serbia, no. 39177/05, § 146, 13 March 2007).", "66. Turning to the facts of the present case the court observes that the main proceedings in both applications were started upon applications by the applicants dated 9 September 2013 and ended by decisions of the Federal Constitutional Court of 16 August 2015. The proceedings, at three levels of jurisdiction, therefore lasted one year and eleven months. The Court further notes that during the one year and one month the cases were pending before the Family Court it commissioned an expert opinion, which had to be supplemented owing to criticism of it by the applicants ’ privately commissioned expert. The court also substituted the consent of the children in parallel proceedings, heard the applicants, their children and further witnesses and led settlement negotiations between the applicants and the youth office. Having regard to the above, the Court considers that there were no particular delays in the course of the proceedings that could be attributed to the conduct of the Family Court. The Court therefore finds that in the light of all the material in its possession they do not disclose any appearance of a violation of Article 8 in regard to the length of proceedings. Accordingly, this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "2. Withdrawal of parental authority", "67. The Court notes that the complaint concerning the withdrawal of parental authority is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "68. The applicants argued that the partial withdrawal of their parental authority had been disproportionate. The domestic courts had, in an arbitrary fashion, equated corporal punishment with child abuse, even though none of the children had shown any physical signs of abuse or injuries. The applicants submitted that their parenting method of “corporal discipline” did not constitute violence or child abuse, or harm their children in any way. Nonetheless, the domestic courts had incorrectly presumed that “corporal discipline” would likely result in psychological problems. That presumption had been based on the opinion of a court- appointed expert, whose conclusions had not only been challenged to a large extent by the applicants ’ own expert but whose examination the applicants had also not consented to.", "69. The applicants further argued that separating the children from their parents had harmed them more than corporal punishment of any kind. Consequently, the decisions had not been based on the best interests of the children. The decisions had been highly disproportionate as the courts had not considered less severe measures, but had expected the applicant parents to abandon their parenting practices and therefore their religious beliefs. Moreover, the courts had prevented the applicants from leaving Germany with their children and from moving to a country where their parenting methods were accepted.", "70. In sum, the withdrawal of parental authority had not pursued a legitimate aim as it had not been geared towards the best interests of the children but had constituted discrimination based on the applicants ’ membership in the Twelve Tribes Church. Furthermore, the decisions had not been “ necessary in a democratic society ” as they had not been based on “ relevant and sufficient ” reasons.", "(b) The Government", "71. The Government submitted that the partial withdrawal of the applicants ’ parental authority had constituted an interference which had aimed at protecting the rights of the applicants ’ children. The decisions had been “necessary in a democratic society” as there had been “relevant and sufficient” reasons to withdraw some parental rights and transfer them to the youth office. The applicants, based on their religious convictions, considered caning used for corrective and instructive purposes as legitimate and the applicants in application no. 11344/16 had already regularly used corporal punishment against their daughters with a rod. Owing to their obligation to protect children from violence, the domestic courts had been forced to withdraw those parts of the applicants ’ parental authority that had been necessary to protect the children ’ s best interests, which in the instant cases had overridden the interests of the parents. The relevant court decisions had been as limited as possible with regard to which parental rights could remain with the applicants. Additionally, since the applicants had not shown in a credible manner that they had abandoned their parenting practices and had not been willing to cooperate with the competent authorities either, no other, more lenient measure had been capable of protecting the applicant children.", "72. The Government also pointed out that in the main proceedings at issue there had been no further restrictions on contact between the applicants and their children and that they had not been prevented from teaching their children their religious community ’ s ideas and beliefs. The courts had merely taken the necessary steps to prevent the children from suffering from physically and psychologically harmful behaviour, which according to the applicants was based on their religious convictions and understanding of the Bible.", "73. Similarly, the courts had not prevented the applicants from leaving Germany. However, in the situation the applicants had created by leaving Germany, the domestic courts had correctly concluded that the risk to the best interests of the children could no longer be averted by more lenient measures, since these could not be sufficiently monitored or enforced by the competent domestic authorities.", "74. Lastly, the Government submitted that the decisions had been based on fair proceedings, which had fully involved the applicants and their children. In addition, the courts had assessed in detail the written expert opinion as well as the challenges to it by the applicants. The courts had legitimately considered the applicants ’ withdrawal of their consent to the assessment as irrelevant as they had been sufficiently informed before the examination and there was no privilege against self-incrimination in civil proceedings. In sum, the assessment of evidence by the courts had not been arbitrary or unfair, but had established a sufficient factual foundation for anticipating an imminent risk to the best interests of the children.", "(c) The third - party intervener", "75. The third party, ADF International, submitted that it was generally in a child ’ s best interests to be raised by his or her parents and that removing a child from parental care was a traumatic and harmful experience. The intervener further argued that the Court had acknowledged this by emphasising the importance of upholding family ties and aiming at family reunification in its case-law. Additionally, the Court had continually requested sufficiently sound and weighty reasons to justify taking children into care and held that the mere fact that a child would be better off if placed in care was not sufficient (see Olsson v. Sweden (no. 1), 24 March 1988, § 71, Series A no. 130).", "2. The Court ’ s assessment", "(a ) Interference", "76. The parties agreed that the decisions in the main proceedings to withdraw the applicants ’ right to decide where their children should live, and to take decisions regarding the children ’ s health and schooling had constituted an interference with the applicants ’ right to respect for their family life. The Court endorses this conclusion and observes that such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.", "(b ) Legal basis", "77. The Court notes that while complaining about the application of the relevant provisions in the present case, the applicants did not dispute that the relevant decisions had had a basis in national law, namely Articles 1666 and 1666a of the Civil Code ( see paragraphs 55, 56 above).", "(c ) Legitimate aim", "78. The applicants alleged that the domestic court decisions had had no legitimate aim and that the withdrawal of parts of their parental authority had not been based on considerations concerning corporal punishment but on the fact that the applicants were members of the Twelve Tribes Church and raised the children in accordance with their faith. They argued that the decisions in essence constituted discrimination on the grounds of religion.", "79. The Court reiterates that the right to respect for family life and to religious freedom, as enshrined in Articles 8 and 9 of the Convention, together with the right to respect for parents ’ philosophical and religious convictions in education, as provided for in Article 2 of Protocol No. 1 to the Convention, convey to parents the right to communicate and promote their religious convictions in bringing up their children ( Vojnity v. Hungary, no. 29617/07, § 37, 12 February 2013). While the Court has accepted that this might even occur in an insistent and overbearing manner, it has stressed that it may not expose children to dangerous practices or to physical or psychological harm (ibid.). This protection of minors from harm has also been affirmed in other international treaties, such as the United Nations Convention on the Rights of the Child, which obliges states to take appropriate measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation (see paragraph 58 above).", "80. The Court notes that even though the domestic court decisions discussed the applicants ’ church membership and their religious views, they based their decisions on the likelihood that the children would be caned. It further observes that the connection between religious views and caning was established by the applicants themselves by justifying their parental practice with quotes from the Bible and their religious views. The Court therefore concludes that the decisions of which the applicants complained were aimed at protecting the “rights and freedoms” of the children. Accordingly, they pursued a legitimate aim within the meaning of paragraph 2 of Article 8.", "(d ) Necessary in a democratic society", "( i ) General principles", "81. The Court reiterates that the question of whether an interference was “necessary in a democratic society” requires consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”. Article 8 requires that a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent (see Elsholz v. Germany [GC], no. 25735/94, §§ 48, 50, ECHR 2000 ‑ VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts); and Hoppe v. Germany, no. 28422/95, §§ 48, 49, 5 December 2002).", "82. In identifying the child ’ s best interests in a particular case, two considerations must be borne in mind: first, it is in the child ’ s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child ’ s best interests to ensure his development in a safe and secure environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development ( Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 136, ECHR 2010). It is not enough to show that a child could be placed in a more beneficial environment for his or her upbringing (see K. and T. v. Finland [GC], no. 25702/94, § 173, ECHR 2001 ‑ VII).", "83. The Court further notes that while Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. The Court cannot satisfactorily assess whether the reasons adduced by the national courts to justify these measures were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Süß v. Germany, no. 40324/98, § 89, 10 November 2005).", "84. In considering the reasons adduced to justify the measures, and in assessing the decision-making process, the Court will give due account to the fact that the national authorities had the benefit of direct contact with all of the persons concerned. It is not the Court ’ s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody issues (compare, among many other authorities, Elsholz, cited above, § 48). The Court reiterates that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care (ibid., § 49).", "85. Lastly, the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998-VI). A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise under Article 3 in a number of cases: see, for example, A. v. the United Kingdom (cited above), where the child applicant had been caned by his stepfather; and Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V), where four child applicants were severely abused and neglected by their parents.", "86. Moreover, even though ill-treatment in violation of Article 3 usually involves actual bodily injury or intense physical or mental suffering, in the absence of those aspects, treatment may still be characterised as degrading and fall within the prohibition set forth in Article 3, if it humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual ’ s moral and physical resistance ( Bouyid v. Belgium [GC], no. 23380/09, § 87, ECHR 2015, with further references). In that context the Court also notes that the Committee on the Rights of the Child of the United Nations defined corporal punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light, and emphasised that all forms of violence against children, however light, are unacceptable (see paragraph 59 above).", "87. Lastly, in cases relating to both Articles 3 and 8 the Court has stressed the relevance of the age of the minors concerned and the need, where their physical and moral welfare is threatened, for children and other vulnerable members of society to benefit from State protection (see, for example, K.U. v. Finland, no. 2872/02, § 46, ECHR 2008; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006 ‑ XI and Ioan Pop and Others v. Romania, no. 52924/09, 6 December 2016). The need to take account of the vulnerability of minors has also been affirmed at international level (see the references to international law in Bouyid, cited above, §§ 52-53 and 109).", "(ii ) Application to the present case", "88. Turning to the circumstances of the present case, the Court notes that at the core of the applicants ’ complaint lies the question of whether a parental practice of caning constitutes a sufficiently weighty reason to withdraw parts of parental authority and to take children into care.", "89. The Court acknowledges that the applicants argued that their practice of caning did not cross the threshold of Article 3 of the Convention and that no physical signs of abuse were found on the children when they were examined after being taken into care. While the Court does not have to decide in the present case whether the applicants ’ treatment of their children, either actual or anticipated, went beyond the threshold of severity to fall within the ambit of Article 3 of the Convention, it observes, nonetheless, that treatment of this kind could fall within the scope of Article 3 of the Convention (see A. v. the United Kingdom, cited above, § 21).", "90. In order to avoid any risk of ill-treatment and degrading treatment of children, the Court considers it commendable if member States prohibit in law all forms of corporal punishment of children. In that regard it notes that Germany has already established a right for children to have a non ‑ violent upbringing and has prohibited physical punishment, psychological injury and other degrading measures.", "91. The Court notes that member States should enforce legal provisions prohibiting corporal punishment of minors by proportionate measures in order to make such prohibitions practical and effective and not to remain theoretical. Therefore, the Court finds that the risk of systematic and regular caning constituted a relevant reason to withdraw parts of the parents ’ authority and to take the children into care.", "92. In assessing whether the reasons adduced by the domestic courts were also sufficient for the purposes of Article 8 § 2, the Court will have to determine whether the decision-making process, seen as a whole, provided the applicants with the requisite protection of their interests and whether the measures chosen were proportionate.", "93. The Court observes that the applicants, assisted by counsel, were in a position to put forward all their arguments against the withdrawal of parental authority and that the courts diligently established the facts of the case. The Family Court and the Court of Appeal heard, inter alia, the applicants, the children – except G. Pingen –, the guardian ad litem of all the children and representatives of the competent youth office. As regards the fact that the courts refrained from hearing G. Pingen, who was still with his parents during the proceedings, the Court reiterates that the requirement of hearing children in custody proceedings depends on the specific circumstances of each case, in particular the age and maturity of the child concerned (see Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003 ‑ VIII). Given that G. Pingen had just turned two before the decision of the Court of Appeal, the Court finds it acceptable that the domestic courts did not question him.", "94. Moreover, the Family Court commissioned an expert opinion, heard that expert and the one commissioned by the applicants, who challenged the court-commissioned expert ’ s findings. The Court of Appeal also heard both experts. In that context, the Court notes that the applicants unsuccessfully criticised the court-commissioned expert ’ s approach and pursued those arguments in the present proceedings. However, the Court has no cause to doubt the professional competence of the expert or the manner in which he conducted the interviews with all concerned.", "95. In regard to the applicants ’ withdrawal of the consent they had given to be examined by the court-commissioned expert, the Court observes that, when the applicants were interviewed by the expert, they had been properly instructed and voluntarily underwent the interview and assessment. The Court would therefore note that the expert did not act against the will of the applicants and that the applicants were not forced to undergo the expert ’ s assessment. In addition, the Court finds that the Government has rightly pointed out that Article 6 does not include a privilege against self ‑ incrimination in civil proceedings and that it is therefore not necessary to accept a withdrawal of consent ex post, when the result of the expert opinion had already been known. Accepting such a withdrawal would jeopardize family court proceedings and a court ’ s obligation to effectively protect children from harm. In sum, the Court agrees with the Family Court and the Court of Appeal that the withdrawal ex post of the applicants ’ consent did not render the expert opinion unusable as evidence and that relying on the opinion was justified by the general interest of the effective protection of children in family court proceedings.", "96. Having regard to the above and to the domestic court ’ s benefit of direct contact with all of the persons concerned, the Court is satisfied that the German courts ’ procedural approach was reasonable and provided sufficient material to reach a reasoned decision on the question of withdrawal of parental authority in the present case. The Court can therefore accept that the procedural requirements implicit in Article 8 of the Convention were complied with.", "97. Lastly, the Court has to assess whether the decisions to withdraw parts of the parents ’ authority and to take the children into care were proportionate. Taking children into care and thereby splitting up a family constitutes a very serious interference with the right to respect to family life protected under Article 8 of the Convention and should only be applied as a measure of last resort (see Neulinger and Shuruk, cited above, § 136 ). However, the decisions by the domestic courts were based on a risk of inhuman or degrading punishment, as prohibited by Article 3 of the Convention. The Court has previously held that even in the most difficult circumstances the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. Moreover, the domestic courts did not assess the risk for the children in the abstract – based on the applicants ’ view on parenting – but followed a differentiated approach and examined for each child, based on the respective age, whether it could be expected that the applicants ’ child-rearing methods would be put into practice and that therefore a real and imminent risk of corporal punishment existed. Given the right of children to a non-violent upbringing in German law and the conflicting but strict conviction of the applicants, the domestic courts concluded that taking the children into care was justifiable.", "98. In addition, the Court observes that the Family Court and the Court of Appeal gave detailed reason why there was no other option available to effectively protect the children, which entailed less of an infringement of each family ’ s rights. Based on the expert ’ s opinion that the physical effects of caning were only short-lived while psychological consequences could only be determined after a longer period of time, the courts correctly concluded that an effective protection of the children by unannounced visits and closer monitoring was impossible. The Court agrees with this line of reasoning and would add that the proceedings concerned a form of institutionalized violence against minors, which was considered by the applicant parents as an element of the children ’ s upbringing. Consequently, any assistance by the youth office, such as training of the parents, could not have effectively protected the children, as corporally disciplining the children was based on their unshakeable dogma.", "99. Moreover, the Court notes that the Court of Appeal correctly pointed out that in the situation the parents had created by leaving the country during the proceedings, the detriment to the best interests of the children could no longer be averted by more lenient measures since the competent authorities would not be able to sufficiently monitor and enforce such measures. In that regard, the Court notes that the domestic courts did not order the applicants to stay in Germany but reasonably concluded that any less infringing measure would have at least entailed the need for supervision and monitoring by the competent domestic authorities. Lastly, the Court observes that the Family Court attempted to broker a friendly settlement between the youth office and the applicants, with the aim of returning the children to their parents and simultaneously protecting the children from corporal punishment.", "100. In sum, the foregoing considerations are sufficient to enable the Court to conclude that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents ’ authority. Based on fair proceedings, the domestic courts struck a balance between the best interests of the children and those of the applicants, which did not fall outside the margin of appreciation granted to the domestic authorities.", "101. There has accordingly been no violation of Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "6. The applicants, Petra Wunderlich, who was born in 1967, and Dirk Wunderlich, who was born in 1966, are married to each other.", "7. The applicants are the parents of four children: M. (born in July 1999), J. (born in September 2000), H. (born in April 2002) and S. (born in September 2005).", "8. The applicants reject the State school system and compulsory school attendance and wish to homeschool their children themselves. In 2005 their oldest daughter, M., reached school age. The applicants refused to register her in a school. Several regulatory fines and criminal proceedings were conducted against the applicants for failing to comply with rules on compulsory school attendance. The applicants accepted these decisions and paid the fines, but did not change their behaviour.", "9. Between 2008 and 2011 the applicants lived with their children abroad. In 2011 they returned to live permanently in Germany, but did not register their children with any school.", "B. Proceedings at issue", "10. By a letter of 13 July 2012 the State Education Authority ( staatliches Schulamt – hereinafter “the Education Authority”) informed the competent family court that the applicants were deliberately and persistently refusing to send their children to school and provided a chronological list of administrative fines and criminal investigations against the applicants – amongst others for hitting one of the daughters – as well as of other incidents since 2005. The Education Authority concluded that the children were growing up in a “parallel world” without any contact with their peers and that they received no attention of any kind which would enable them to have a part in communal life in Germany. It therefore suggested a court measure under Article 1666 of the German Civil Code (see paragraph 25 below), arguing the children’s best interests were endangered owing to their being systematically deprived of the opportunity to participate in “normal” life. The youth office ( Jugendamt – hereinafter: “the youth office”) supported the request of the Education Authority. It considered that the persistent refusal of the applicants endangered the best interests of the children.", "11. The Darmstadt Family Court initiated court proceedings and heard testimony from the applicants, their children and the youth office. It also appointed a guardian ad litem for the children. In the oral hearing, on 6 September 2012, the applicants stated that they had paid the administrative fines imposed on them for not sending the children to school and that, despite the State sanctions, they would continue to homeschool their children. Already in a previous written submission the applicants had confirmed their unwillingness to send their children to school and had stated that the authorities would have to remove their children from the family home and take them away from them entirely if the children were ever to go to a State school. The children explained during the hearing that it was primarily their mother who taught all four children and that school normally started at 10 a.m. and lasted until 3 p.m., with a break for lunch, which was prepared by their mother.", "12. On 6 September 2012 the Darmstadt Family Court withdrew the applicants’ right to determine their children’s place of residence, their right to take decisions on school matters and right to apply to the authorities on behalf of their children, and transferred these rights to the youth office. It also ordered the applicants to hand their children over to the youth office for enforcement of the rules on compulsory school attendance and authorised the youth office to use force if necessary. In its reasoning the court stated that the parents’ persistent refusal to send their children to a State school or a recognised grant-aided independent school not only violated section 67 of the Hesse School Act ( Hessisches Schulgesetz ) (see paragraph 31 below) but also represented an abuse of parental authority which risked damaging the children’s best interests in the long term. Independent from the question of whether it could be ensured that the children were acquiring sufficient knowledge through the applicants’ homeschooling, the children’s not attending school was preventing them from becoming part of the community and learning social skills such as tolerance, assertiveness and the ability to assert their own convictions against majority-held views. The court found that the children needed to be exposed to influences other than those of their parental home to acquire those skills. Lastly, the court concluded that no less severe measures were available. Owing to the persistent refusal of the applicants to send their children to school, only withdrawing parts of parental authority could ensure the children’s continual attendance at school and would prevent them suffering harm on account of them being educated at home.", "13. The applicants appealed against that decision.", "14. In a letter dated 15 November 2012 the youth office informed the applicants that it intended to assess the children’s knowledge on 22 November 2012 and asked the applicants to have their children ready to be collected on that day. On 22 November 2012 a member of staff of the youth office, acting as the children’s guardian, attempted to take the children to the Education Authority’s premises to conduct the learning assessment. The children refused to go with him. A second attempt to take the children to the learning assessment on the same day by two members of the public-order office and a police patrol also failed on account of the children’s refusal to accompany them. In a letter dated 10 December 2012 the applicants were notified of two dates (19 December 2012 and 17 January 2013) on which the children were to be assessed at home. The applicants submitted statements to the Education Authority in which they informed the latter that the children did not wish to participate in the assessment. In a letter dated 20 December 2012 the Education Authority informed the applicants’ lawyer that in order to ensure the children’s school attendance the children would, among other things, firstly have to undergo a learning assessment. At the same time the parents were informed that the appointment of 19 December 2012 had been cancelled, but the appointment of 17 January 2013 still stood. However, staff of the Education Authority were not allowed to enter the family home when they arrived for the appointment in January 2013. The father spoke to the members of staff and explained that he believed that the Family Court’s decision had been unlawful and that he alone was authorised to decide whether his children attended school or not.", "15. On 25 April 2013 the Frankfurt am Main Court of Appeal rejected the parents’ appeal, but clarified that the applicants retained the right to determine their children’s place of residence during school holidays in Hesse. At the outset the court noted that up to that date the children had not attended school, even though the decision of the Darmstadt Family Court had not been suspended. It also observed that all attempts to conduct a learning assessment had failed on account of the children’s and the parents’ resistance. As to the law, the court outlined that the decision to withdraw parts of parental authority under Articles 1666 and 1666a of the Civil Code (see paragraphs 25 and 26 below) presupposed a significant endangerment of the best interests of the children, which the parents were unable or unwilling to prevent. To establish such an endangerment, a process of balancing the various interests had to be undertaken, during which the rights and interests of the children and of the parents as well as the interests of society had to be considered. In particular, a withdrawal of parental authority could not be justified to enable children to receive the best possible education but only to prevent any endangerment of children. Applying these principles to the case at hand, the court concluded that the applicants’ persistent refusal to ensure that their children attended school risked damaging the best interests of the children. According to the court, the children’s best interests were in concrete danger on account of them being kept in a “symbiotic” family system and being denied an education which met standards which were both well recognised and fundamentally important for growing up in society. The education they were receiving from the applicants could not compensate for not attending school. Five hours of homeschooling – including a lunch break –, which was conducted concurrently for all four children, could not suffice to offer each child a range of schooling appropriate to his or her age. In addition, the children were also not members of any sports club, music school or similar organisation where they could acquire other skills important for their education. The court also noted that the applicants’ submissions as a whole showed that their main concern was creating a strong attachment between the children and their parents to the exclusion of others. Moreover, by their persistent refusal they were also teaching the children that they did not need to comply with the rules of community life if they found them disagreeable. Lastly, the Court of Appeal found that there were no less severe measures available, since merely issuing instructions would have been ineffective, as shown by the applicants’ previous conduct and submissions. Consequently, the withdrawal of parts of parental authority by the Family Court had been correct.", "16. On 9 October 2014 the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for adjudication, without providing reasons. The decision was served upon the applicants on 16 October 2014.", "17. In later proceedings (see paragraph 23 below) the Frankfurt am Main Court of Appeal transferred the right to determine the children’s place of residence back to the applicants on 15 August 2014.", "C. Children’s Removal from the Family Home", "18. On 26 August 2013 the youth office arranged a meeting between the applicants, their lawyer, the youth office and the Education Authority. During the meeting the applicants declared that they refused – on principle –", "to have their children schooled outside the family. In addition, Mr Wunderlich stated, amongst other things, that he considered children to be the ‘property’ of their parents.", "19. On 29 August 2013 the applicants’ children were removed from the parental home and placed in a children’s home. The children had to be carried out of the house individually with the help of police officers after they had refused to comply with the court bailiff’s requests to come out voluntarily.", "20. On 12 September 2013 and on 16 September 2013 the knowledge of the applicants’ children was assessed for ninety minutes each during two school appointments with a view to determining the children’s appropriate class and schooling requirements.", "21. In written submissions dated 10 September 2013 concerning other ongoing proceedings before the Family Court the applicants agreed to the children’s attending school. On 19 September 2013 the court heard testimony from the applicants, their children and a member of staff of the Education Authority. The children were subsequently handed back to the applicants that same day, since the applicants were now willing to allow their children to attend school.", "D. Further Developments", "22. Following the return of the children on 19 September 2013, they attended school for the school year of 2013-14. On 16 May 2014 the Education Authority lodged a criminal complaint against the applicants for failing to comply with rules on compulsory school attendance. On 25 June 2014 the applicants again withdrew their children from school.", "23. On 15 August 2014, in parallel proceedings, the Frankfurt am Main Court of Appeal transferred the right to determine the children’s place of residence back to the applicants. The court held that, as pointed out in its decision of 25 April 2013 (see paragraph 15 above), the applicants’ persistent refusal to send their children to school constituted child endangerment and that neither their temporary schooling nor the learning assessment of the children had changed that conclusion. However, the court continued, the situation had changed in comparison to that of August 2013, at which point – according to the information provided by the youth office – several elements had led to the children’s removal from the family home: a risk emanating from the children’s father to their physical integrity could not be excluded; failed attempts to bring the children to school by the police had led to the risk of the children internalising the attitude that laws had had no bearing on them; attempts to carry out a learning assessment had failed owing to the resistance of the applicants; and according to the information available at the time, it had been possible to assume that the children had had no contact with anyone outside of the family whatsoever. According to the information gathered since the removal of the children by the youth office, any risk to their physical integrity emanating from the applicants could now be excluded. Moreover, the learning assessment had showed that the knowledge level of the children was not alarming and that the children were not being kept from school against their will. Since permanent removal of the children from their parents would be the only possible way to ensure the continued schooling of the children, this was no longer proportionate as it would have a greater impact on the children than being homeschooled by their parents. The Court of Appeal however emphasised that the present decision should not be understood as permission for the applicants to homeschool their children. In that regard it observed that the Education Authority had already lodged a criminal complaint against the applicants for failing to comply with the rules on compulsory school attendance, which carried a maximum sentence of six months’ imprisonment." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. German Basic Law ( Grundgesetz )", "24. Article 6 of the Basic law, in so far as relevant, reads as follows", "“(1) Marriage and the family shall enjoy the special protection of the State.", "(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.", "(3) Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. ...”", "B. German Civil Code ( Bürgerliches Gesetzbuch )", "25. 31. Article 1666 of the German Civil Code reads, as far as relevant, as follows:", "“(1) Where the physical, mental or psychological best interests of a child or a child’s property are endangered and the parents do not wish, or are not able, to avert the danger, a family court must take the necessary measures to avert the danger.", "...", "(3) The court measures in accordance with subsection (1) include in particular", "1. instructions to seek public assistance, such as benefits of child and youth welfare and healthcare,", "2. instructions to ensure that the obligation to attend school is complied with,", "3. prohibitions to use the family home or another dwelling temporarily or for an indefinite period, to be within a certain radius of the home or to visit certain other places where the child regularly spends time,", "4. prohibitions to establish contact with the child or to bring about a meeting with the child,", "5. substitution of declarations of the person with parental authority,", "6. part or complete removal of parental authority [ die teilweise oder vollständige Entziehung der elterlichen Sorge ].”", "26. Article 1666a of the German Civil Code, in so far as relevant, reads as follows:", "“(1) Measures which entail separation of the child from his or her parental family are only allowed if other measures, including public support measures, cannot avert the danger ...", "(2) The right to care for a child may only be withdrawn if other measures have been unsuccessful or if it is to be assumed that they do not suffice to avert the danger.”", "27. Article 1696 of the German Civil Code, in so far as relevant, reads:", "“(2) A measure under sections 1666 to 1667 or another provision of the Civil Code, which may only be taken if this is necessary to avert a danger to the child’s best interests or which is in the child’s best interests (measure under the law on child protection) must be cancelled if there is no longer a danger to the best interests of the child or the measure is no longer necessary.”", "28. According to an earlier decision of the Federal Court of Justice (no. XII ZB 42/07, 17 October 2007), parents’ persistent refusal to send their children to a State primary school or an approved grant-aided independent school represents an abuse of parental authority which endangers the best interests of the children concerned and can necessitate that a family court takes measures under Articles 1666, 1666a of the Civil Code. A partial withdrawal of parental authority and the ordering of guardianship are in principle suitable for countering such an abuse of parental authority. The Federal Court of Justice also concluded that it might be appropriate for a guardian to be authorised to enforce the handing over of children, if need be by using force and by means of entering and searching the parents’ home, as well as by drawing on the assistance of the bailiff’s office or the police.", "C. Hesse School Act ( Hessisches Schulgesetz )", "29. Section 56 of the Hesse School Act reads, as far as relevant, as follows:", "“(1) All children, juveniles and young adults whose place of residence or habitual place of residence, or whose place of training or of work is in Hesse must comply with [the rules on] compulsory school attendance.", "(2) Compliance with [the rules on] compulsory school attendance entails attending a German school. Foreign pupils may also comply with [the rules on] compulsory school attendance by attending a State-approved school run by an independent body (supplementary school) which prepares them for the International Baccalaureate or the qualifications of a Member State of the European Union. The school supervisory authority shall take decisions on exemptions. Such decisions require important grounds.", "...”", "30. Section 60 of the Hesse School Act, in so far as relevant, reads as follows:", "“(1) Compliance with compulsory full-time school attendance entails attending a State primary and lower secondary school.", "(2) Alternatively, compliance with full-time school attendance may entail attending a grant aided independent school. Other teaching outside of school may be authorised by the school supervisory authority only for compelling reasons.", "...”", "31. The relevant part of section 67 of the Hesse School Act reads as follows:", "“(1) Parents are responsible for ensuring that school-age children regularly attend school and participate in educational activities. They are obliged to register and de-register school-age children at the competent school, if necessary to present themselves so that a decision may be taken regarding whether a school-age child is to be enrolled, and to provide school-age children with all they need to attend school.", "...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "32. The applicants complained that the German authorities had violated their right to respect for family life as provided in Article 8 of the Convention by withdrawing parts of parental authority ( Entzug von Teilen des elterlichen Sorgerechts ) – including the right to determine the children’s place of residence ( Aufenthaltsbestimmungsrecht ) –, by transferring these parts to the youth office and by executing the withdrawal in the form of forcibly removing the children from the applicants and placing them in a children’s home for three weeks. Article 8 reads as follows:", "“1. Everyone has the right to respect for his ... family life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "33. The Government contested that argument.", "A. Admissibility", "34. The Government submitted that the complaint as far as the decision taken by the youth office – in the exercise of the right to determine the children’s place of residence was transferred to the office – to take the children into care between 29 August and 19 September 2013 was inadmissible. The Government argued that the application received by the Court in April 2015 had been lodged after the expiry of the six-month time-limit set out in Article 35 § 1 of the Convention, which had begun to run from the children’s time in a children’s home between 29 August and 19 September 2013.", "35. The applicants contested that argument.", "36. The Court reiterates that the six-month time-limit provided for by Article 35 § 1 marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible. The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 40, 29 June 2012, with further references). Rule 47 of the Rules of Court closer defines the relevant date of introduction and reads, in so far as relevant:", "“[T]he date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark.”", "37. The Court observes that the removal of the children constituted the execution of the Darmstadt Family Court’s decision of 6 September 2012 and is therefore intrinsically tied to that decision. The applicants appealed against the decision and exhausted the domestic remedies by lodging a constitutional complaint, which was not admitted for adjudication. The decision of the Federal Constitutional Court was served upon the applicants on 16 October 2014 (see paragraph 16 above). The applicants’ duly completed application form accompanied by copies of all relevant documents was sent to the Court on 16 April 2015. The Court therefore concludes that the applicants’ application was lodged within the six-month time-limit.", "38. The Court also notes that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "39. The applicants submitted that the German authorities had interfered with the applicants’ right to respect for family life not only by partially withdrawing parental authority and transferring those rights to the youth office but also by enforcing the decision and placing their children in a children’s home for three weeks. Those interferences had not pursued a legitimate aim – in particular they had not aimed at the protection of the health, rights and freedoms of the children – as the children had been schooled and the removal from their parents and their family home had harmed them instead of protecting them. Moreover, the interferences had also not been necessary in a democratic society. Firstly, there had not been sufficient evidence of any risk to the children, let alone relevant and sufficient reasons to justify the removal and withdrawal of parental authority. Secondly, the authorities had not acted in the best interest of the children but had merely acted to prevent home schooling and to enforce the rules on compulsory school attendance. Thirdly, the authorities had not attempted less intrusive measures, had not worked towards reunification of the family and had not transferred the parental rights back to the applicants as soon as possible. Lastly, the decisions of the authorities had been based on misconceptions of home schooling and the wrong assumption that such schooling would lead to social isolation and a lack of education. These assumptions, however, had not been grounded in facts.", "40. The Government accepted that the decision to withdraw, among other things, the applicants’ right to determine the children’s place of residence and the fact that their children had been subsequently forcibly separated from their parents had constituted interferences with the right to respect for the applicants’ family life. The interferences had been, however, in accordance with the law and had pursued the legitimate aim of protecting the health, rights and freedoms of the applicants’ children. Moreover, the interferences had been necessary in a democratic society. The German authorities had established, based on the information available at the relevant time, that the best interest of the children had been at risk and that this fact had required the partial withdrawal of parental authority. Despite compulsory school attendance, the children had not attended a State school for years. The schooling by, in particular, their mother had had to be regarded as inadequate, since the children had been taught only for five hours a day, interrupted by a lunch break, and, notwithstanding their different ages, all children had been taught together and the same curriculum. In addition, the children had had no regular contact with society and hardly any opportunity to meet children of their own age, for example during music lessons or in sports clubs, or to acquire social skills. They consequently had grown up isolated within their own family enclave, in which the applicants had ensured that their children had established a strong attachment to them, to the exclusion of others. The courts had therefore correctly assumed that a “symbiotic” family system had emerged. Further information had not been available to the authorities as the applicants had persistently resisted and prevented the children’s situation from being examined in detail by the youth office or the Education Authority. The domestic courts, in particular the Frankfurt am Main Court of Appeal, outlined these sufficient and relevant reasons in detail in their decisions. The courts had also assessed whether less severe measures had been available but had correctly concluded that, given the applicants’ previous conduct and persistent rejection of schooling outside their own home, which could not even be changed by criminal sanctions, no other measures had been available. Moreover, as soon as the learning assessment had been undertaken and the applicants had agreed to send their children to a public school, the children had been returned to their parents.", "41. The third-party intervener Ordo Iuris submitted that according to the established case-law of the Court any interference with the right to family life and in particular with the mutual enjoyment by parent and child of each other’s company had to be oriented to the best interests of the child. On a procedural level, decisions had to be based on sufficient and relevant reasons, parents had to be involved in the proceedings and separation of children and parents should only be a measure of last resort and kept as short as possible. Ordo Iuris further argued that home-schooling as such could not justify removal of children from their parents and made extensive submissions – in particular concerning Article 2 of Protocol No. 1 to the Convention – regarding the protection of a right to home-schooling under the Convention. Similarly, the third party intervener European Centre for Law and Justice argued that home-schooling should be protected by the Convention under Article 2 of Protocol No. 1.", "2. The Court’s assessment", "42. At the outset, and having regard to the submissions of the parties and third parties, the Court finds it necessary to clarify the scope of the application. The Court notes that the application concerns the compatibility of a temporary and partial withdrawal of parental authority and the enforcement of this decision with Article 8 of the Convention. While the prohibition of home-schooling in Germany is an underlying issue of this complaint, the Court observes that it has already decided upon the compatibility of this prohibition with the Convention – in particular Article 8 and Article 2 of Protocol No. 1 - before (see, for example, Konrad and Others v. Germany (dec.), no. 35504/03, 11 September 2006; Dojan and Others v. Germany (dec.), nos. 319/08, 2455/08, 7908/10, 8152/10 and 8155/10, 13 September 2011; and Leuffen v. Germany, no. 19844/92, Commission decision of 9 July 1992) and that the respective part of the application has already been declared inadmissible (see paragraph 4 above).", "43. The Court observes that the parties agreed that partially withdrawing parental authority, transferring those rights to the youth office and enforcing the decision by removing the applicants’ children from their parents’ home and placing them in a children’s home for three weeks, constituted interferences with the applicants’ right to respect for family life under Article 8 of the Convention. It is further also not in dispute that these interferences were based on Articles 1666, 1666a of the Civil Code (see paragraphs 25 and 26 above). The Court endorses these conclusions.", "44. Such interferences constitute a violation of Article 8 unless they pursue a legitimate aim and can be regarded as “necessary in a democratic society”. In that context, the applicants argued that the interferences had not pursued legitimate aims, since taking the children into care had harmed them instead of protecting them. The Government however submitted that the authorities had acted with the aim of protecting the health, rights and freedoms of the applicants’ children.", "45. The Court notes that Articles 1666, 1666a of the Civil Code (see paragraphs 25 and 26 above) are aimed at protecting the physical, mental or psychological best interests of a child. There is nothing to suggest that it was applied for any other purpose in the present case. Consequently, the Court is satisfied that the authorities acted in pursuit of the legitimate aims of protecting “health or morals” and “rights and freedoms of others”.", "46. The question of whether the interference was “necessary in a democratic society” requires consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measure were “relevant and sufficient”. Article 8 requires that a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent (see Elsholz v. Germany [GC], no. 25735/94, §§ 48, 50, ECHR 2000 ‑ VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts); Hoppe v. Germany, no. 28422/95, §§ 48, 49, 5 December 2002; and Wetjen and Others v. Germany, nos. 68125/14 and 72204/14, § 68, 22 March 2018).", "47. In considering the reasons adduced to justify the measures in question the Court will give due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation (see Kutzner v. Germany, no. 46544/99, § 66, ECHR 2002 ‑ I). The margin of appreciation will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit ( K. and T. v. Finland [GC], no. 25702/94, § 155, ECHR 2001 ‑ VII; Mohamed Hasan v. Norway, no. 27496/15, § 145, 26 April 2018). The Court reiterates that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care (see K. and T. v. Finland, cited above, § 155). In addition, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance (see Kutzner, cited above, § 66).", "48. Turning to the facts of the present case, the Court reiterates that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents’ right under Article 8 of the Convention to enjoy family life with their child (see K. and T. v. Finland, cited above, § 173).", "49. It also notes that the German courts justified the partial withdrawal of parental authority by citing the risk of danger to the children. The courts assessed the risk on the persistent refusal of the applicants to send their children to school, where the children would not only acquire knowledge but also learn social skills, such as tolerance or assertiveness, and have contact with persons other than their family, in particular children of their own age. The Court of Appeal further held that the applicants’ children were being kept in a “symbiotic” family system.", "50. The Court further reiterates that it has already examined cases regarding the German system of imposing compulsory school attendance while excluding home education. It has found it established that the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems (see Konrad and Others; Dojan and Others; and Leuffen; all cited above).", "51. The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.", "52. In so far as the applicants submitted that the learning assessment taken by the children had shown that the children had had sufficient knowledge, social skills and a loving relationship with their parents, the Court notes that this information was not available to the youth office and the courts when they decided upon the temporary and partial withdrawal of parental authority and the taking of the children into care. In contrast, having regard to the statements of, in particular, Mr. Wunderlich – for example that he considered children to be the ‘property’ of their parents – and on the information available at the time, the authorities reasonably assumed that the children were isolated, had no contact with anyone outside of the family and that a risk to their physical integrity existed (see paragraphs 10, 18 and 23 above). The Court also reiterates that even mistaken judgments or assessments by professionals do not per se render childcare measures incompatible with the requirements of Article 8. The authorities – both medical and social – have a duty to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis-à-vis members of their families are proved, retrospectively, to have been misguided (see R.K. and A.K. v. the United Kingdom, no. 38000/05, § 36, 30 September 2008). The Court would also add that the unavailability of this information was based on the applicants’ resistance to have the learning assessment conducted prior to the removal of the children.", "53. To assess whether the reasons adduced by the domestic courts were also sufficient for the purposes of Article 8 § 2, the Court will have to determine whether the decision-making process, seen as a whole, provided the applicants with the requisite protection of their interests (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Süß v. Germany, no. 40324/98, § 89, 10 November 2005). The Court observes that the Darmstadt Family Court heard testimony from the applicants, their children and the youth office and appointed a guardian ad litem for the children to represent their interests. In addition, the applicants submitted extensive written pleadings to the domestic courts. The Court is therefore satisfied that the applicants, represented by legal counsel, were in a position to put forward all their arguments against the temporary and partial withdrawal of parental authority and that the procedural requirements implicit in Article 8 of the Convention were complied with.", "54. Lastly, the Court has to examine whether the decisions to withdraw parts of the parents’ authority and to take the children into care were proportionate. The domestic courts gave detailed reasons why less severe measures than taking the children into care were not available. They held, in particular, that the prior conduct of the applicants and their persistent resistance to measures had shown that merely issuing instructions would be ineffective. The Court notes that not even prior administrative fines had changed the applicants’ refusal to send their children to school. It therefore finds, in the circumstances of the present case, the conclusion by the domestic courts acceptable.", "55. The Court would further reiterate that the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, where possible (see T.P. and K.M. v. the United Kingdom, cited above, § 78, with further references). In that regard it notes that the children were returned to their parents after the learning assessment had been conducted and the applicants had agreed to send their children to school. The Court therefore concludes that the actual removal of the children did not last any longer than necessary in the children’s best interest and was also not implemented in a way which was particularly harsh or exceptional (see K. and T. v. Finland, cited above, § 173). In that regard, the Court also observes that the applicants did not complain about the placement of their children in a particular facility or the treatment of their children while in care.", "56. In so far as the applicants complained that the partial withdrawal of parental authority had only been lifted in August 2014, the Court notes that, after the first learning assessment, a further in ‑ depth long-term assessment of the children’s development was necessary, which required continuous attendance at school. Furthermore, the Court finds that the existence of the non-enforced decision did not impose any identifiable actual prejudice (compare R.K. and A.K. v. the United Kingdom, cited above, § 38).", "57. The foregoing considerations are sufficient to enable the Court to conclude that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home. The domestic authorities struck a proportionate balance between the best interests of the children and those of the applicants, which did not fall outside the margin of appreciation granted to the domestic authorities.", "58. There has accordingly been no violation of Article 8 of the Convention." ]

[ "THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1976 and lives in Madrid.", "The background to the case and the criminal proceedings against the applicant", "6. In January 2012 the applicant and his wife, a Spanish national, left Syria with their three minor children because of the armed conflict and travelled to Spain.", "7. One month after their arrival in Spain the applicant’s wife lodged a criminal complaint against him for domestic violence. On 2 February 2012 the Coslada (Madrid) judge no. 1 hearing cases of violence against women (“the Coslada judge no. 1”) issued the applicant’s wife with a temporary protection order valid for the duration of the criminal proceedings. It included a criminal-law measure barring the husband from approaching her and their three children or communicating with them and requiring him to wear a tracking bracelet, and a civil-law measure temporarily withdrawing the applicant’s parental responsibility and contact rights. The applicant’s wife, who had been staying in an emergency shelter, twice left the shelter with her children and returned to live with her husband despite the barring order issued against him. The applicant was arrested and detained on two occasions for violating the barring order but was ultimately released. According to reports drawn up on 20 April and 21 May 2012 by the Móstoles and Alcalá de Henares emergency shelters, the children’s relationship with their mother was characterised by serious emotional, educational and behavioural deprivation. On 8 June 2012 the applicant’s wife filed a fresh complaint of violence.", "The declaration of abandonment in respect of the children and the proceedings for the applicant’s daughter’s placement in foster care with a view to her adoption", "8. On 15 June 2012 the Madrid regional government issued a legal declaration of abandonment concerning the three children, aged nine, six and one and a half, and took over their guardianship under the urgent procedure. The children were placed in residential care. The decision was taken following a request from the applicant’s wife, who said that she could no longer look after her children owing to serious conflict within the family and her lack of resources. The applicant’s wife informed the Madrid regional government that she intended to move to Murcia to get away from the applicant and to live with her brother. She requested that the three children be taken into care by the regional government in Murcia. She also stated her intention to begin therapy.", "9. On 28 June 2012 the children were placed in residential care in Murcia. The applicant was not informed that his children had been declared abandoned and taken into care, nor was he informed of any of the decisions concerning his children taken by the Madrid or Murcia child protection services.", "10. On 28 July 2012 the social affairs director of the Murcia region took over the guardianship of the three children. The applicant’s two sons were placed in the Santo Angel children’s home and his daughter in the Cardenal Belluga home. Their mother was given permission to visit.", "11. On 14 February 2013 the president of the Spanish Muslim Association (“the association”) wrote on the applicant’s behalf to the Murcia child protection department (“the child protection department”) stating that the applicant, having cut all ties with his wife, had no information concerning his three children. In the letter the association requested that it be informed about the children’s situation and stated that the applicant, who was legally deprived of the right to communicate with his children, had asked for a member of the association to be allowed to meet them. On 7 March 2013 the child protection department replied that there were no plans to return the children to their birth family and that it was not desirable for outsiders to visit the children.", "12. On 19 March 2013 the Coslada judge no. 1 sent the Murcia child protection department a summons which had arrived late at the court, making it impossible for the judge to contact the applicant in time for the latter to attend a hearing to be held in Murcia on 21 March 2013.", "13. On 6 April 2013 the applicant was notified of the hearing to confirm the children’s guardianship, by means of a notice ( edictos ) published in the Murcia official gazette. On 8 and 16 April 2013 he was contacted by telephone by a member of the Murcia child protection department. During the first telephone conversation the applicant was informed that notice of the guardianship hearing had been served. He did not follow up on the telephone call and did not attend the hearing. In the course of a further telephone conversation with the same member of the child protection department the applicant said that he would not attend the hearing and would, if necessary, appeal against the decision confirming the guardianship. On 24 April 2013 the Murcia regional government (“the regional government”) placed the children in the care of the child protection department. A letter notifying the applicant of that decision was sent to his home on 14 May 2013. As the applicant was absent, it was left at the post office on 21 May 2013. The applicant did not go there to pick it up.", "14. In an orientation report of 20 June 2013 the directorate-general of social affairs of the Murcia region took note of the fact that the children had allegedly been subjected to serious physical and emotional abuse by the applicant. It noted the order made by the Coslada judge no. 1 barring the applicant from approaching the children or communicating with them in any way. The report further took note, in particular, of the mother’s very vulnerable, easily influenced and fragile personality and her failure to protect her children, her emotional instability and limited intellectual abilities, her lack of financial stability, the fact that she had no stable home or occupation and the fact that she had also spent her childhood in care. The report recommended suspending the mother’s visits to her minor daughter and allowing just a single one-hour contact session with her two sons every two months, in a location to be decided by the children’s home.", "15. In the course of a telephone call from the social services at the Cardenal Belluga children’s home, the applicant’s wife said that she was renting an apartment in order to be close to her daughter, using money sent to her by the applicant.", "16. In a very detailed psychosocial report dated 19 July 2013 the directorate-general of social affairs of the Murcia region proposed that the applicant’s daughter should be placed temporarily in foster care with a view to adoption, and should not receive visits from her birth family. The report essentially echoed the findings of the previous report and stressed the mother’s lack of parenting skills and her immaturity.", "The placement of the applicant’s daughter in a foster family and the applicant’s acquittal in the criminal proceedings for domestic violence", "17. On 20 September 2013 the regional child protection board decided to place the applicant’s daughter in temporary foster care with a view to her adoption.", "On 24 September 2013 she was placed with a foster family.", "18. On 8 October 2013 the president of the regional child protection board submitted a formal proposal for the girl to be placed in temporary pre ‑ adoption foster care with the couple who had been chosen. No provision was made for visits by her birth parents.", "19. On 27 September 2013 the Alcalá de Henares criminal court judge no. 5 acquitted the applicant of all charges in the proceedings concerning him and set aside the criminal and civil-law measures ordered by the Coslada judge no. 1 on 2 February 2012. The criminal court judge no. 5 took into account in his judgment the lack of detail in the applicant’s wife’s allegations concerning him, the similarly imprecise indirect witness statements (given by the head teacher of the applicant’s children’s school and their teachers, the school’s learning support assistant and the school secretary), who had no clear memory of the events or had repeated remarks made by the children or their own impressions. The judge also took into account the psychological and medical expert reports, which noted “psychological scars consistent with ill-treatment, social maladjustment and physical, sexual and psychological violence”. These were likewise deemed insufficient to disprove the presumption of the applicant’s innocence, given the generic nature of the claims made in the various reports, the lack of explanations concerning the techniques used to arrive at the findings, and the imprecise testimony given by the experts at the hearing. The acquittal judgment became final on 8 November 2013.", "20. With the assistance of a lawyer the applicant wrote to the child protection department on 19 November 2013 and attended an interview. He informed the department of the judgment in his favour and said that he was working, had a stable income and was living in Madrid. He requested permission to see his children.", "21. In an orientation report of 28 February 2014 the child protection department took note of the fact that there had been no contact between the applicant and his children between 28 June 2012, the date on which the children had been placed in residential care, and 19 November 2013, when the applicant had first had contact with the child protection department as described above. In the report the child protection department proposed refusing the applicant permission to see his daughter and provisionally refusing him permission to see his other two children “until such time as the children [were] more stable emotionally and psychologically”. It noted that the girl had “adjusted very well during the pre-adoption fostering process” and that the other two children still showed signs of “fear and a lack of trust where their father [was] concerned” and were receiving psychological and pharmacological treatment. The findings of the report were endorsed on 31 March 2014 by a decision of the directorate-general of social affairs of the Murcia region, which terminated the administrative proceedings. The decision was sent to the prosecutor with responsibility for minors, and the applicant was informed on 22 April 2014.", "22. On 28 May 2014 the applicant appealed against his daughter’s placement in foster care.", "23. In a follow-up report of 18 December 2014 the child protection department noted the emotional bond that had been formed between the young girl and her foster family and the degree to which she had adjusted to her new social and family environment.", "24. On 2 February 2015 the psychologist and the welfare assistant from child welfare centre II in Madrid issued a report concerning the applicant, noting the lack of an emotional bond between the father and his daughter and the fact that the father’s request to resume contact with his children had focused on the two older children. According to the report, the applicant understood the impact which the separation had had on his children and claimed that he was capable of balancing his private and working life in order to meet the children’s needs.", "25. On 11 February 2015, in response to a request from the directorate ‑ general of social affairs, the Murcia first-instance judge no. 3 authorised the placement of the applicant’s daughter in foster care with a view to her adoption, under Article 173 § 1 of the Civil Code. The decision gave the following reasons:", "“The present case satisfies the statutory conditions for placement in foster care in so far as the public child protection agency and the foster family have given their consent and the parents’ lack of consent can be remedied by means of a judicial decision. In the child’s circumstances, her placement in a family which will take care of her, feed and educate her and include her in family life would be of great benefit in terms of her physical, intellectual and moral development [and] her upbringing in general.”", "26. On 13 March 2015 the applicant appealed against the decision of 11 February 2015 authorising his daughter’s placement in foster care with a view to her adoption. His wife did likewise. The applicant argued, in particular, that the judgment in question did not give any reasons why the child should not be entrusted to his care given that he had been acquitted of all the charges against him. He stated that the declaration that his children had been abandoned had resulted from his wife’s conduct, her particular personality traits and the war in Syria which they had escaped by leaving the country. He considered himself a victim of the inability of the girl’s mother to look after her; his own ability to bring up his daughter and take care of her had never been examined by either the administrative or the judicial authorities.", "27. In her written objection to the applicant’s appeal against the decision of 11 February 2015 by the first-instance judge no. 3, the lawyer representing the regional government noted that the applicant had shown no interest in his children after they had been placed in residential care in Murcia on 28 June 2012. She also observed that the applicant had not appealed against the administrative decision confirming the children’s placement in care.", "28. On 7 April 2016 the Murcia Audiencia Provincial dismissed the appeals lodged by the applicant and his wife and upheld the impugned decision in the following terms:", "“... according to the decision under appeal, such a measure [the placement of the child in foster care with a view to adoption] will safeguard the child’s best interests and contribute effectively to her overall development.", "...", "Account should be taken of the assessment made by the administrative authorities regarding the appellant’s lack of interest. Firstly, he did not take any action after requesting information regarding his children’s situation and being provided with that information in February 2013. Secondly, he did not intervene in the proceedings, with the exception of one written submission filed on 19 November 2013, despite being informed on several occasions of the confirmation of the decision to place his children in State care in April 2013 …", "It was only on 28 May 2014, after several unsuccessful attempts had been made to notify the appellant, that he intervened in the proceedings to appeal against the decision to place A. [his daughter] with a foster family.", "… It appears from the orientation report of 28 February 2014 that the child lived in the child protection centre for a year and three months and has no contact with her father. Furthermore, the evidence examined, and in particular the follow-up report of 18 December 2014, shows that strong emotional bonds have been formed and that the child identifies as a member of the foster family and has adjusted to her new social and family environment. The report finds that this environment meets A.’s needs and that the foster care is having a beneficial impact on her personal development. It adds that the best outcome for her would be for her to be adopted by her foster parents, [and that it is necessary] to assess the possible negative consequences if her foster care were to be terminated. Specifically, the report states that this would be tantamount to an attack on the child in all aspects of her physical, intellectual and moral development. This would pose a serious threat to her mental health and would affect the development of her personality and her ability to form personal relationships throughout her life.", "...", "It should be added that the document submitted by [the applicant] (Mr Haddad) in the appeal proceedings, in which the child protection department stated that A.’s two brothers (L., aged thirteen and Ad., aged ten) were being taken out of State care because they had gone back to live with their father, is completely irrelevant. Firstly, the document makes no mention of the reasons for taking the children out of care. Secondly, the current situation with regard to A., who is four years old, does not militate in favour of a change of approach in her case, in the light of her ongoing placement in foster care with a view to her adoption, [the process] of integration [into the family] and the negative and damaging consequences which would result from the termination of the foster care, as established by the expert reports …”", "29. On 26 February 2016 the regional government terminated the placement of the applicant’s two sons in the care of the child protection department and authorised their return to their father. They have been living with him since that date.", "30. On 13 June 2016 the applicant lodged an amparo appeal with the Constitutional Court in which he set out, in a separate section, the reasons why he considered his action to have special constitutional significance. He relied on Article 24 (right to a fair trial) and Article 39 of the Constitution and on Article 8 of the Convention, arguing that the judicial decisions had prevented him from being reunited with his daughter owing to serious errors in the various reports by the administrative authorities that had served as the basis for the domestic courts’ reasoning. In a decision served on 19 October 2016 the Constitutional Court declared the amparo appeal inadmissible on the grounds that the applicant had not demonstrated the constitutional significance of his appeal." ]

[ "RELEVANT DOMESTIC LAW", "31. The provisions of the Constitution of relevance to the present case read as follows:", "Article 24", "“1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights.", "…”", "Article 39", "“1. The State authorities shall ensure that the family is afforded social, economic and legal protection.", "2. The authorities shall also afford full protection to children, who shall be equal before the law irrespective of their parentage, and to mothers, irrespective of marital status. The law shall make it possible to investigate one’s paternity.", "3. Parents must lend assistance to their children in all spheres, whether the children were born within or outside marriage, until they reach full age and in the other cases provided for by law.", "4. Children shall enjoy the protection provided for in the international agreements safeguarding their rights.”", "32. Section 17 of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors provides as follows:", "“In any risk situation, whatever its nature, that is harmful to the minor’s personal or social development and does not require a guardianship order under the law, the action taken by the public authorities shall in all cases secure the minor’s rights and be aimed at reducing the risk factors and social difficulties impacting on his or her personal and social situation, while providing the necessary protection to the minor and his or her family.", "Once the risk has been assessed the child protection authorities shall take the necessary steps to attenuate the risk and shall monitor the minor’s progress within the family.”", "33. The relevant provisions of the Civil Code read as follows:", "Article 172", "“1. Where the regional agency responsible for the protection of minors observes that a minor has been declared abandoned, it shall automatically take over his or her guardianship and shall put in place the necessary protective and guardianship arrangements … [The parents and guardians] shall, in so far as possible, be informed in person and in a clear and comprehensible manner of the reasons for the authorities’ intervention and the potential consequences of the decision adopted.", "A minor shall be legally considered abandoned where he or she is in a de facto situation stemming either from a failure to fulfil the protective duties set out in the legislation on the guardianship of minors, or from an inability to fulfil those duties or carry them out in the proper manner, and where he or she is deprived of the requisite moral or material assistance.", "The exercise of guardianship by the authorities shall entail the suspension of parental responsibility or ordinary guardianship …", "2. Where, owing to serious circumstances, the parents or guardians cannot take care of the minor, they may request the competent administrative authority to take over the child’s guardianship for the required period.", "The transfer of guardianship shall be in writing. The document shall note that the parents or guardians have been informed of their continuing responsibilities towards the child and of the manner in which the authority will exercise guardianship.", "...", "3. Where guardianship is assumed at the request of the parents or guardians or to comply with a statutory obligation, it shall take the form of foster care or residential care …", "4. The aim shall always be to ensure the minor’s best interests. Unless these interests dictate otherwise, [the authorities shall endeavour] to return the minor to his or her family and to entrust the guardianship of any siblings to the same institution or person.", "…", "7. Parents whose parental responsibility has been suspended under paragraph 1 of this Article may request that the suspension be lifted and that the declaration of abandonment be revoked, within two years from the administrative notification of the declaration, if they consider that they are again in a position to exercise parental responsibility owing to a change in the circumstances that led to the declaration.", "They may also, during the same period, challenge the decisions taken in relation to protection of the minor.", "...", "Once this period has elapsed they shall no longer have the right to request or challenge decisions or measures relating to protection of the minor. …", "8. The administrative authority, of its own motion or at the request of the public prosecutor’s office or any interested person or institution, may at any time revoke the declaration of abandonment and order the return of the minor to his or her own family, if he or she has not settled in another family or if it considers this the most appropriate course of action in the minor’s interest. The public prosecutor’s office shall be notified accordingly.”", "Article 173", "“1. The placement of minors in foster care shall entail their full involvement in the life of the household and an obligation for the foster family to care for and provide for them, feed them, ensure their upbringing and provide them with a full education.", "...", "3. If the minor’s parents … oppose [his or her placement in foster care], the placement shall be the subject of a judicial decision, in the interests of the minor …", "However, the administrative authority may decide, in the child’s interests, to place him or her temporarily in foster care pending the judicial decision.", "…”", "Article 173 bis", "“Foster care may take one of the following forms, depending on its purpose", "1. Simple foster care which is of a temporary nature, either because the minor’s situation is such that he or she may be able to return to his or her own family, or because another more permanent protective measure is in preparation.", "2. Permanent foster care in cases where, owing to the minor’s age or other circumstances relating to the minor or his or her family, [this approach] appears preferable and has thus been recommended by the child protection department. …", "3. Foster care with a view to adoption, which is formally arranged by the administrative authorities when they submit a proposal to the judicial authority for the minor’s adoption, [which must be] approved by the child protection department, provided that the foster parents satisfy the conditions for adoption, have been selected and have given their consent to the administrative authorities, and that the child’s legal situation makes him or her eligible for adoption.", "The administrative authorities may also put pre-adoptive foster arrangements in place where they consider, before submitting the adoption proposal, that a settling-in period in the foster family is necessary. This period shall be as short as possible and shall not exceed one year.”", "Article 222", "“The following persons shall be placed under guardianship:", "...", "4. Minors who have been legally declared abandoned.”", "34. Section 35 of Law 3/1995 on children, enacted by the Murcia region on 21 March 1995, reads as follows:", "“1. Fostering arrangements may be put in place prior to adoption:", "(a) where the minor shows signs of physical or psychological ill-treatment, sexual abuse, exploitation or other [forms of ill-treatment] of a similar nature, or where for any other reason the parents or guardians are deprived of parental responsibility and that situation is expected to be permanent;", "(b) where the parents or guardians are prevented from exercising parental responsibility and that situation is expected to be permanent;", "(c) where the parents or guardians make a request to that effect to the competent authority and have forfeited the rights and duties inherent in their function;", "(e) where the judicial authority so decides.", "2. In the cases defined in the first sub-section, and in order to facilitate integration into the foster family, visits and contact with the birth family shall be suspended if that is in the minor’s best interests.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "35. The applicant complained that the child protection department had not taken any steps to help him to re-establish contact with his daughter following his acquittal and the lifting of the temporary barring order against him. He relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "36. The Government pleaded failure to exhaust domestic remedies. They argued, firstly, that the applicant had not filed a plea of nullity with the Audiencia Provincial before lodging his amparo appeal with the Constitutional Court. Secondly, they noted that the amparo appeal had been declared inadmissible by the Constitutional Court because the applicant had failed to comply with the requirement to demonstrate that his appeal had special constitutional significance, as stipulated by section 49(1) of Institutional Law no. 2/1979 on the Constitutional Court (“the LOTC”) as amended by Institutional Law no. 6/2007 of 24 May 2007.", "37. The applicant submitted that the issue of a plea of nullity was irrelevant; the same view had been taken by the Constitutional Court, which had not dismissed his amparo appeal on that ground. He added that the decision declaring his amparo appeal inadmissible on the grounds of failure to demonstrate that his complaints were of constitutional significance had been given in error, as in the case of R.M.S. v. Spain (no. 28775/12, 18 June 2013), in which the Court had found a violation of Article 8 of the Convention.", "38. As regards the first part of the Government’s objection, the Court considers that the applicant gave the domestic courts and, at last instance, the Constitutional Court, the opportunity to remedy the alleged violation. As to the Government’s argument that the applicant had failed to exhaust domestic remedies because he had not filed a plea of nullity, it observes that the Constitutional Court did not declare the applicant’s amparo appeal inadmissible on that ground, and that it made no mention at any stage of a prior requirement to have filed such a plea. The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII), including procedural issues, and that the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. Hence, it cannot require the applicant to exhaust a remedy which the Constitutional Court itself did not consider to be required in the present case.", "39. As to the second part of the objection, the Government submitted that domestic remedies had not been properly exhausted in so far as the amparo appeal had been declared inadmissible by the Constitutional Court owing to the applicant’s failure to comply with the statutory obligation to demonstrate that his appeal had special constitutional significance, as required by section 49(1) of the LOTC as amended by Institutional Law no. 6/2007 of 24 May 2007.", "40. In that connection, as it did previously in the case of Arribas Antón v. Spain (no. 16563/11, 20 January 2015), the Court emphasises that the fact that the Constitutional Court declared an amparo appeal inadmissible on the grounds that it did not have special constitutional significance as required or, as the case may be, that the appellant had not demonstrated the existence of such significance, does not prevent the Court from ruling on the admissibility and merits of an application (ibid., § 51, with its references to the following Court judgments delivered in the wake of Constitutional Court rulings declaring amparo appeals inadmissible on the basis of this criterion: Del Río Prada v. Spain [GC], no. 42750/09, § 22, ECHR 2013; Varela Geis v. Spain, no. 61005/09, 5 March 2013; Manzanas Martín v. Spain, no. 17966/10, § 14, 3 April 2012; and R.M.S. v. Spain, cited above, § 45; see also the more recent case of Rodriguez Ravelo v. Spain, no. 48074/10, § 24, 12 January 2016, and, most recently, Saber and Boughassal v. Spain, nos. 76550/13 and 45938/14, § 30, 18 December 2018). The Court notes that in the present case the applicant set out, in a separate section, the reasons why his amparo appeal had special constitutional significance for him. He argued that the appeal satisfied that criterion in so far as it was based on the case-law of the “bodies responsible for interpreting international treaties and agreements referred to in Article 10(2) of the EC Treaty”. He referred to the judgment in R.M.S. v. Spain, cited above, and relied on the provisions of the Spanish Constitution which he considered relevant and on Article 8 of the Convention, arguing that the judicial decisions in question had prevented him from being reunited with his daughter owing to serious errors in the reports by the various administrative bodies that had formed the basis for the domestic courts’ reasoning.", "41. Accordingly, the Government’s objection cannot be allowed.", "42. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The Government", "43. The Government conceded that there had been interference by the public authorities with the applicant’s right to respect for his private and family life. However, in their submission, the interference was justified by an overriding requirement pertaining to the child’s best interests, and was an appropriate use of the national authorities’ margin of appreciation. In the present case the applicant’s daughter had had an interest in the consolidation of her situation in foster care, after spending fifteen months in residential care. Moreover, the Court was not a court of fourth instance and must respect the margin of appreciation left to the member States in regulating parent-child relationships.", "44. The Government averred that the local authority’s decision to place the child in foster care with a view to her adoption had been taken in strict compliance with the child protection legislation, had been duly accompanied by reasons and had been reviewed by the Spanish judicial authorities in accordance with the law. The decision had not been taken arbitrarily, but rather had been based on the applicant’s lack of interest in his daughter. Although the barring order in respect of the applicant had been valid until September 2013, he had had no contact with his children between 2012 and 2015 and had not travelled to Murcia in person, but instead had dealt with the matter in writing through an association (see paragraph 11 above). The applicant’s situation therefore differed from that of the applicant in the case of R.M.S. v. Spain (cited above, § 76), in which the Court had found a violation of Article 8 of the Convention because a child had been declared abandoned even though the applicant “[had gone] to the Granada children’s home on at least seventeen occasions, despite the fact that the home was some distance from where she lived, and … [had] not even [been] informed that her daughter had left there”. Moreover, in the present case, the decision in question had been preceded by a thorough assessment based on the reports drawn up by the Murcia child protection department. The Government referred to the orientation report of 20 June 2013, the psychosocial report of 19 July 2013, the orientation report of 28 February 2014 and the report of 2 February 2015 (see paragraphs 14 et seq. above).", "45. In the Government’s view, the decisions taken by the authorities in the present case had not been disproportionate, as they had also secured the interests of the birth parents by affording them sufficient procedural safeguards and involving them in the decision-making process (the Government referred to the judgment in W. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121). The authorities had at all times been mindful of the child’s best interests, the situation of her immediate and extended family and the principles of proportionality and necessity. The Government noted the efforts made by the Murcia social services to contact the applicant (see paragraphs 12 and 13 above) and the fact that the judicial authorities had upheld the rights of the defence by allowing the child’s parents the opportunity to express their point of view and, if applicable, their objections, by means of the procedures and remedies made available to them.", "46. The Government observed that the interests of each child had to be assessed on a case-by-case basis. Consequently, the fact that the applicant had regained custody of his two sons did not alter the judicial bodies’ decisions, since his daughter had not been in a comparable situation to that of her brothers owing to her age and her personal circumstances. Referring to the decision of the Murcia Audiencia Provincial of 7 April 2016, the Government argued that the child’s reintegration into her birth family had no longer been possible as it had been liable to do her more harm than good. Furthermore, the child’s extended family had not demonstrated to the social services that they were capable of taking care of her.", "47. Lastly, the Government noted that the rights enshrined in Article 8 of the Convention applied equally to the birth family and the foster family; the latter had established emotional ties with the child that had to be taken into consideration by the Court.", "(b) The applicant", "48. In the applicant’s submission, while foster care may have been the best solution in the past in order to consolidate his daughter’s family situation, that had ceased to be the case once he had regained custody of the two older children with the permission of the child protection authorities. In his view, justifying his daughter’s placement in foster care on the grounds of his alleged “lack of interest” made no sense, given that he had been deprived of parental responsibility for his children and of the corresponding rights and duties. That measure, which had formed the basis for the declaration that his children were abandoned, had ceased to have any relevance as he had been acquitted of the criminal charges of ill-treatment of his wife. Once he had managed to resume contact with his older children, he had again been barred from having the same contact arrangements with his daughter. Moreover, as a foreign national with a limited command of Spanish, it had been difficult for him to consult the notice to appear published in the Murcia region official gazette (see paragraph 13 above); that should not have been interpreted as a lack of interest on his part.", "49. The applicant submitted that the Spanish child protection services and courts had discriminated against him because he was a foreign national. He had been living in Madrid and had a poor command of Spanish at the time. He rejected the Government’s argument that the authorities had observed the principle of lawfulness and his procedural rights, given that they had based their decisions on unsubstantiated arguments and on reports drawn up while criminal proceedings had been pending against him and he had not been in a position to defend his suitability as a father.", "50. The applicant criticised the reasons given by the Murcia Audiencia Provincial in dismissing as irrelevant the fact that he had only regained custody of his sons and not of his daughter “because that would be counter ‑ productive for [her]”. The fact that the two boys had been returned to him demonstrated that he was interested in his children and capable of taking care of them. The decision of the Murcia Audiencia Provincial, which had been echoed by the Government in their observations, had wrongly found him to have ill-treated his children and had projected onto him the inadequate parenting of the children’s mother.", "The Court’s assessment", "(a) General principles concerning respondent States’ positive obligations under Article 8 of the Convention", "51. The Court reiterates that the enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999 ‑ VI; Saleck Bardi v. Spain, no. 66167/09, §§ 49 and 50, 24 May 2011; and R.M.S. v. Spain, cited above, § 68) and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 ‑ VII, and Barnea and Caldararu v. Italy, no. 37931/15, § 63, 22 June 2017).", "52. As the Court has held on a number of occasions, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. While a decision by the competent authority resulting in a child being taken into care constitutes interference with a parent’s right to respect for his or her family life (see W. v. the United Kingdom, cited above, § 59), the positive obligations inherent in the right to effective respect for private or family life may involve the adoption of measures even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Mincheva v. Bulgaria, no. 21558/03, § 81, 2 September 2010). In both cases, regard must be had to the fair balance that has to be struck between the competing interests – those of the child, of the two parents, and of public order (see Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007) – while attaching particular importance to the best interests of the child (see, to similar effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX), which, depending on their nature and seriousness, may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII). Again, in both contexts, the State enjoys a certain margin of appreciation (see Saleck Bardi, cited above, § 50, and K.A.B. v. Spain, no. 59819/08, § 95, 10 April 2012).", "53. The Court reaffirms the principle, well-established in its case-law, according to which the Convention is intended to guarantee rights that are practical and effective (see K. and T. v. Finland, cited above, § 154). It reiterates that the Court’s task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation.", "54. As the Court has held on numerous occasions, it is a measure of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII). In that connection and with reference to the State’s obligation to adopt positive measures, the Court has repeatedly held that Article 8 includes both a parent’s right to the taking of measures with a view to being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, Eriksson v. Sweden, 22 June 1989, § 71, Series A no. 156, and Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250). In this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live (see Maumousseau and Washington, cited above, § 83, and S.H. v. Italy, no. 52557/14, § 42, 13 October 2015). Taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see K. and T. v. Finland, cited above, § 178). When a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life (see K. and T. v. Finland, cited above, § 155). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Furthermore, the positive obligations are not confined to ensuring that children can rejoin their parents or have contact with them, but also extend to all the preparatory steps to be taken to that end (see, mutatis mutandis, Kosmopoulou v. Greece, no. 60457/00, § 45, 5 February 2004, and Amanalachioai v. Romania, no. 4023/04, § 95, 26 May 2009).", "55. It is the Court’s task to assess whether the Spanish authorities acted in breach of their positive obligations under Article 8 of the Convention (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002-I; P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002-VI; Evans v. the United Kingdom [GC], no. 6339/05, § 76, ECHR 2007-IV; and K.A.B. v. Spain, cited above, § 98).", "56. Each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it under Article 8 of the Convention, and it is for the Court to ascertain whether the domestic authorities, in applying and interpreting the applicable legal provisions, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 141, ECHR 2010; Barnea and Caldararu, cited above, § 65; K.A.B. v. Spain, cited above, § 115; and R.M.S. v. Spain, cited above, § 72).", "(b) Application of these principles in the present case", "57. The Court notes that on 15 June 2012 the applicant’s three children, including his minor daughter, aged one and a half at the time, were placed in residential care in Madrid at their mother’s request and declared abandoned. When their mother moved to Murcia the children were placed in residential facilities there. The applicant was not informed (see paragraphs 8 and 9 above).", "58. In a case such as the present one the courts are faced with interests that are often difficult to reconcile, namely the interests of the child and those of its birth parents. In the pursuit of a balance between these different interests, the child’s best interests must be a primary consideration (see Moretti and Benedetti, no. 16318/07, § 67, 27 April 2010).", "59. In the present case the Court observes that the administrative authorities, in finding that the applicant’s daughter should be placed in foster care with a view to her adoption, based their decisions on the serious physical and emotional abuse to which the applicant had allegedly subjected his children, the emotional instability and limited intellectual capacities of their mother (see paragraphs 14 and 21 above), the lack of contact between the applicant and his children between 28 June 2012, the date of their placement in residential care, and 19 November 2013, when the applicant first had contact with the child protection services (see paragraph 21 above), and the lack of an emotional bond between the applicant and his daughter (see paragraph 24 above). The Court notes that at no point in the administrative proceedings was consideration given to the applicant’s acquittal on 27 September 2013 of all the charges against him or to the lifting of the initial barring order against him which had prevented him from maintaining contact with his children in the meantime (see paragraph 20 above).", "60. The Court observes that the decision of 11 February 2015 of the Murcia first-instance judge (see paragraph 25 above) approving the decision by the directorate-general of social affairs concerning the placement of the applicant’s daughter in pre-adoption foster care still did not take account of the change in the applicant’s position with regard to the criminal proceedings since his acquittal on 27 September 2013. It notes, moreover, that the Murcia first-instance judge did not rule on the applicant’s aptitude in educational or psychosocial terms to regain custody of his minor daughter. Instead, the judge’s decision simply took into consideration the arguments set out in the reports drawn up by the administrative authorities.", "61. The Court observes that the question whether a parent’s interests have been sufficiently protected in the decision-making process will depend on the specific circumstances of each case (see W. v. the United Kingdom, cited above, § 64, and Elsholz v. Germany [GC], no. 25735/94, § 52, ECHR 2000 ‑ VIII). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). The Court notes in that connection that during the proceedings before the first-instance judge and the Audiencia Provincial the applicant had the opportunity to present submissions in support of his case, in the context of judicial proceedings in which he was represented by a lawyer, at least from 19 November 2013 onwards (see paragraph 20 above). Accordingly, the Court does not discern any failings that could be formally attributed to the domestic courts in that regard; however, the latter displayed inaction when taking into account the findings of the reports drawn up by the different administrative bodies which had intervened during the examination of the case.", "62. The Court reiterates that in cases concerning family life the breaking-off of contact with a very young child may result in the progressive deterioration of the child’s relationship with his or her parent (see, among other authorities, Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 175, ECHR 2004-V (extracts), and K.A.B. v. Spain, cited above, § 103). This also holds true in the present case. The reports of 28 February and 18 December 2014 (see paragraphs 21 and 23 above) showed that the applicant’s daughter had settled well in her foster family since being placed there on 24 September 2013 (see paragraph 17 above). The passage of time had the effect of making permanent a situation that was intended to be temporary, in view of the very young age of the child when she was legally declared abandoned and the guardianship order was made (see paragraph 8 above).", "63. The Court reiterates that it is not its role to substitute its assessment for that of the relevant national authorities regarding the measures which should have been taken, since the authorities are in principle better placed to carry out such an assessment. Whilst acknowledging that the domestic courts endeavoured in good faith in the present case to safeguard the child’s well-being, the Court notes a serious lack of diligence in the procedure implemented by the authorities responsible for the child’s guardianship, placement and possible adoption (see K.A.B. v. Spain, cited above, § 104). This is true, in particular, as regards the manner in which they took into account the new circumstances in relation to the criminal proceedings against the applicant and his final acquittal of the offences which had been the reason for the temporary removal of access to his children.", "64. In that connection, and as mentioned in paragraph 54 above, the Court reiterates that Article 8 of the Convention includes a parent’s right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action. However, the obligation for the national authorities to take measures to that end is not absolute, since the reunion of a parent with his or her child may not be able to take place immediately and may require preparation. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. Whilst the national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. In this type of case the adequacy of a measure is to be judged by the swiftness of its implementation (see Maumousseau and Washington, cited above § 83, and Mincheva, cited above, § 86).", "65. Hence, the decisive question in the present case is whether the national authorities, before deciding to place the applicant’s daughter with an adoptive family, took all the necessary and appropriate measures that could reasonably be expected of them to facilitate her return to her father as soon as possible, as he had requested, so that they could lead a normal family life together with the girl’s brothers.", "66. In the circumstances of the present case, the decision to take the applicant’s three children into care is understandable, given that it was their own mother who had requested it. However, that decision should have been followed swiftly by appropriate measures to examine in depth the children’s situation and their relationship with their parents – if necessary, with the father and mother separately – while complying with the rules in force. The children had been separated from their father, apparently against the latter’s wishes, when he faced criminal prosecution for domestic violence following a complaint lodged by their mother. Although it is clear from the case file that he was not detained in prison, it must not be overlooked that the applicant was not allowed to approach his children and that he was therefore kept away from them, without any contact, for the entire duration of the criminal proceedings. This situation was particularly serious given the age of his daughter, who had been just one and a half when she was placed under guardianship in Madrid. The Court is not persuaded by the reasons which the administrative authorities and the domestic courts considered sufficient to justify placing the child in foster care with a view to her adoption. It observes that no consideration was given at any stage of the administrative procedure to the very young age of the child when she was separated from her father and his wife, the pre-existing emotional bond between the child and her parents, the passage of time since their separation, or the ensuing consequences for all three of them and for the child’s relationship with her brothers.", "67. Nevertheless, it is important to bear in mind the reference made in the orientation report of 20 June 2013 to the applicant’s physical ill ‑ treatment of his children – which he disputed – and the psychological instability of the applicant’s wife (see Bertrand v. France (dec.), no. 57376/00, 19 February 2002, and Couillard Maugery v. France, no. 64796/01, § 261, 1 July 2004). The supposed ill-treatment was not proven, however, and is referred to only in the above-mentioned report (see paragraph 14 above); the Government did not submit any further information in this connection. The reference appears to be based on the content of the criminal complaint of domestic violence lodged by the applicant’s wife, a charge of which he was subsequently acquitted. As to the mental instability of the applicant’s wife, this does not demonstrate that the applicant exercised a negative influence, but rather the opposite, especially following his acquittal. This is borne out by the fact that the applicant was awarded custody of his two sons and has continued his endeavours to regain custody of his minor daughter. The courts did not note any lack of emotional development (see, conversely, Kutzner v. Germany, no. 46544/99, § 68, ECHR 2002 ‑ I), an issue which they failed to examine in the case of the applicant, or any concerns about the children’s health. While it is true that in some cases that were declared inadmissible by the Court, the children concerned may have been placed in care because of unsatisfactory living conditions or material deprivation, this was never the sole reason on which the decision of the domestic courts was based, since it was compounded by other factors such as the psychological state of the parents or their inability to provide their child with emotional and educational support (see Rampogna and Murgia v. Italy (dec.), no. 40753/98, 11 May 1999; M.G. and M.T.A. v. Italy (dec.), no. 17421/02, 28 June 2005; and Wallová and Walla v. the Czech Republic, no. 23848/04, §§ 72-74, 26 October 2006). This was not the situation in the present case, at least with regard to the applicant. His ability to provide his minor daughter with educational and emotional support was not formally at issue, and his other two minor children are now living with him again. The placement in care of the applicant’s daughter was ordered at her mother’s request on account of the very specific problems the latter was encountering at the time, and without the applicant’s requests being taken into account.", "68. In the Court’s view, the Spanish administrative authorities should have considered other less drastic measures than placing the applicant’s minor daughter in foster care with a view to her adoption and should, in any event, have taken her father’s requests into consideration once his position with regard to the criminal proceedings had been clarified. The Court considers that the role of the social welfare authorities is precisely to help persons in difficulty – in particular, in the present case, the children’s mother, who was obliged to take the decision to place her children in care in view of her serious family situation – and to provide them with guidance and advise them. It also observes that both the Murcia first-instance judge no. 3 in his judgment of 11 February 2015, and the Audiencia Provincial in its judgment of 7 April 2016, refused to consider the arguments which the applicant wished to raise against his daughter’s placement in foster care with a view to adoption (see paragraph 26 above), and merely upheld the decisions taken by the administrative authorities on the basis of the arguments used by the latter, which were reproduced mechanically throughout the subsequent proceedings. In the Court’s view, the administrative authorities simply reproduced the successive decisions without making any new findings or assessing on the basis of tangible evidence how the circumstances might have changed. This demonstrated clearly the authorities’ determination to place the child in a foster family with a view to her adoption.", "69. The Court points to its case-law cited at paragraph 54 above, according to which Article 8 of the Convention implies a parent’s right to the taking of measures with a view to being reunited with his or her child and an obligation on the national authorities to take such action. It observes that, despite the applicant’s objection to his daughter’s placement in foster care with a view to adoption (see paragraphs 22 and 26 above), that option was chosen on the sole ground that there had been no contact between the child and her father for several years, although the actual reason for the discontinuation of contact was the order made by the Coslada judge no. 1 in response to a complaint of domestic violence. The competent authorities were therefore responsible for the breakdown in contact between the applicant and his daughter, at least after the applicant’s acquittal, and failed to fulfil their positive obligation to take measures in order to allow the applicant to enjoy regular contact with the child (see Pontes v. Portugal, no. 19554/09, § 92, 10 April 2012). The Court considers that taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child (see Johansen v. Norway, 7 August 1996, § 78, Reports 1996 ‑ III).", "70. In the Court’s view, consideration of the vulnerability of the applicant’s wife at the time of her daughter’s placement in care could have made a key contribution to understanding the situation of the child and her mother. Likewise, the applicant’s final acquittal and the lifting of the prohibition on contact with his children – a prohibition which was the precise reason for the lack of contact which was held against the applicant – appear not to have been considered by the judge. Instead, the judge merely took into consideration, in his judgment of 11 February 2015, the approval by the child protection authority and the foster family of the child’s placement in foster care, despite the fact that the biological parents had not consented to the move. The child protection services, the domestic courts and the Government relied primarily on the reports prepared by the various administrative bodies which had intervened throughout the procedure, and hence also during the period when the applicant was unable to demonstrate his suitability as a father since he was deprived of parental responsibility and criminal proceedings were pending against him. This attitude on the part of the administrative authorities did not change when the applicant was finally acquitted.", "71. The Court also notes that the orientation report issued by the child protection department on 28 February 2014 concluded that the applicant should not be allowed to visit his daughter because almost two years had elapsed since she had been placed in care and they had not seen each other at all during that time. According to this report, the child had “adjusted very well during the pre-adoption fostering process” (see paragraph 21 above). It is worth emphasising that, while the report noted that the other two children still showed signs of “fear and a lack of trust where their father [was] concerned”, the applicant was quickly able to regain custody of his sons, who had not undergone a pre-adoption process.", "72. In the Court’s view, the procedure should have been accompanied by appropriate safeguards to protect the applicant’s rights and take his interests into account. Hence, the length of time that elapsed – a consequence of the administrative authorities’ inaction – coupled with the inaction of the domestic courts, which did not regard as unreasonable the reasons advanced by the authorities for depriving a father of his daughter on the sole basis of the lack of contact between them (such contact having been prohibited by court order), were decisive factors in precluding any possibility of the applicant and his daughter being reunited as a family.", "73. In view of these considerations and notwithstanding the margin of appreciation enjoyed by the respondent State in the matter, the Court concludes that the Spanish authorities failed to take adequate and sufficient steps to secure the applicant’s right to live with his child together with the child’s brothers, in breach of his right to respect for his private and family life under Article 8 of the Convention.", "74. There has therefore been a violation of Article 8.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "75. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "76. The applicant sought to have his daughter returned to him.", "77. The Government did not comment on the applicant’s claim for just satisfaction.", "78. The Court considers, in the particular circumstances of the case, that it is not its place as such to act on this request. It reiterates that, subject to monitoring by the Committee of Ministers, the respondent State remains free in principle to choose the means by which it will discharge its obligations under Article 46 § 1 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 88, ECHR 2009; Ferré Gisbert v. Spain, no. 39590/05, § 46, 13 October 2009; and Bondavalli v. Italy, no. 35532/12, § 91, 17 November 2015). The Court refers in any event to the requirements of promptness referred to in paragraph 72 above.", "79. Nevertheless, in view of the specific circumstances of the present case and the urgent need to put an end to the violation of the applicant’s right to respect for his family life, the Court asks the domestic authorities to re-examine, in a timely manner, the situation of the applicant and his minor daughter in the light of the present judgment, and the possibility of establishing some form of contact between them taking into consideration the child’s current situation and her best interests, and to take any other measures that may be appropriate in the child’s best interests (see Soares de Melo v. Portugal, no. 72850/14, § 130, 16 February 2016; Bondavalli, cited above, § 83; and Ageyevy v. Russia, no. 7075/10, § 244, 18 April 2013).", "80. The Court considers that the most appropriate form of redress for a violation of Article 8 of the Convention in a case such as the present one, where the decision-making process by the administrative authorities and the domestic courts is liable to result in the adoption of the applicant’s daughter by her foster family, would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Atutxa Mendiola and Others v. Spain, no. 41427/14, § 51, 13 June 2017, and Otegi Mondragon v. Spain, nos. 4184/15 and 4 others, §§ 74 and 75, 6 November 2018). It notes that domestic law provides for the possibility of reviewing final decisions which have been declared in breach of Convention rights by a judgment of the Court, under Articles 510 and 511 of the Code of Civil Procedure, “provided that this does not adversely affect the rights acquired in good faith by third parties”." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background", "10. In May 2008 the first applicant turned to the child welfare services because she was pregnant and was in a difficult situation: she did not have a permanent home and was temporarily staying with her parents.", "11. On 10 June 2008 the first applicant and the putative future father, Z, visited a gynaecological polyclinic at the regional hospital. According to the medical notes recorded that day, the doctor was informed that the first applicant had had a late abortion in October 2007 and that she also wanted to abort this time. A chlamydia test and an ultrasonography were carried out, and the first applicant and Z informed that an abortion would not be possible.", "12. On 23 June 2008 the hospital confirmed that the result of the chlamydia test taken on 10 June 2008 was positive. As one of the measures taken by the birth clinic to monitor the first applicant and her situation, the doctor noted that a social worker would make contact with the child welfare services, in agreement with the first applicant. A social worker, J.T., at the hospital noted the following day that the first applicant had expressed a strong wish for a place at a parent-child institution on the grounds that she was limited on account of a brain injury ( begrensninger på grunn av hjerneskade ) sustained following an epileptic seizure; she had no home, and a difficult relationship with the child ’ s putative father and other family members; and that she wanted help to become as good a mother as possible. It was noted by the hospital that any stay at a parent-child institution would be voluntary and that the first applicant and her child could leave whenever they wished.", "13. On 1 July 2008 the hospital notified the child welfare services that the first applicant was in need of guidance concerning the unborn child and monitoring with regard to motherhood. The hospital also indicated that she needed to stay at a parent-child institution. The child welfare services took on the case, with the first applicant ’ s consent. She agreed to stay at a parent ‑ child institution for three months after the child was born, so that her ability to give the child adequate care could be assessed.", "14. On 16 July 2008 a meeting with the child welfare services took place. A psychologist, I.K.A., from the Office for Children, Youth and Family Affairs attended the meeting. According to the notes from the meeting, it was agreed that the first applicant should receive psychological counselling on a weekly basis in the social worker ’ s absence during the summer, and that the psychologist would give subsequent reports to the child welfare services.", "15. On 16 September 2008 a formal decision was taken to offer the first applicant and her child a place at a parent-child institution for three months. The decision stated that the child welfare services were concerned about the first applicant ’ s mental health and her ability to understand the seriousness of taking responsibility for a child and the consequences.", "16. Some days earlier, on 9 September 2008, the child welfare services and the first applicant had agreed on a plan for the stay. In the plan it was stated that the main purpose of the stay would be to examine, observe and guide the first applicant in order to equip her with sufficient childcare skills. A number of more specific aims were also included, involving observation of the mother and child and examination of the mother ’ s mental health ( psyke ) and maturity, her ability to receive, understand and avail herself of advice in relation to her role as a mother, and her developmental possibilities. Working with the first applicant ’ s network was also included as an aim in the plan.", "17. On 25 September 2008 the first applicant gave birth to a son, X, the second applicant. The first applicant then refused to provide the name of X ’ s father. Four days later, on 29 September 2008, the first applicant and X moved to the parent-child institution. For the first five days X ’ s maternal grandmother also stayed there with them.", "18. On 10 October 2008 the parent-child institution called the child welfare services and expressed concern on the part of their staff. According to the child welfare services ’ records, the staff at the institution stated that X was not gaining sufficient weight and lacked energy. With regard to nappy changes, the staff had to repeatedly ( gang på gang ) tell the first applicant that there were still traces of excrement, while she continued to focus on herself.", "19. On 14 October 2008 the staff at the parent-child institution said that they were very concerned about X and the first applicant ’ s caring skills. It had turned out that the first applicant had given an incorrect weight for the baby and that X had, accordingly, lost more weight than previously assumed. Moreover, she showed no understanding of the boy ’ s feelings ( viser ingen forståelse av gutten sine følelser ) and seemed unable to empathise with the baby ( sette seg inn i hvordan babyen har det ). The staff had decided to move the first applicant into an apartment on the main floor in order to get a better overview and to monitor her even more closely. The next meeting between the first applicant, the staff at the parent-child institution and the child welfare services had been scheduled for 24 October 2008, but the staff at the institution wanted to bring the meeting forward as they were of the view that the matter could not wait that long.", "B. Proceedings to place X in emergency foster care", "20. On 17 October 2008 a meeting between the parent-child institution, the first applicant and the child welfare services was held. The first applicant stated at the meeting that she wanted to move out of the institution together with her child, as she no longer wanted guidance. The staff at the institution stated that they were very concerned about the first applicant ’ s caring skills. She did not wake up at night, and the boy had lost a lot of weight, lacked energy and appeared dehydrated. The health visitor was also very concerned, whereas the first applicant was not. The institution had established close 24-hour monitoring. Staff had stayed awake at night in order to wake the first applicant up to feed the child. They had monitored the first applicant every three hours round the clock in order to ensure that the boy received nourishment. They expressed the fear that the child would not have survived had they not established that close monitoring pattern. The child welfare services considered that it would create a risk if the first applicant removed the child from the institution. X was below critical normal weight ( kritisk normalvekt ) and in need of nutrition and monitoring.", "21. In the decision taken on the same date it was also stated that the first applicant had given information about the child ’ s father to the child welfare services, but that she had refused him permission to take a paternity test and to sign as father at the hospital. It was stated that the father wanted to take responsibility for the child, but that he did not yet have any rights as a party to the case.", "22. It was decided to place X in an emergency foster home and that the first applicant and her mother should visit him for up to one and a half hours weekly. As to the boy ’ s needs, it was stated that he had lost a lot of weight and accordingly needed close and proper monitoring. It was emphasised as very important that good feeding routines be developed. Further, according to the plan, the placement was to be continuously assessed by the first applicant, the emergency foster parents, a specialist team ( fagteam ) and the child welfare services. The municipality was to stay in contact with the emergency foster parents and be responsible for being in contact with and following up on the first applicant. Preliminary approval of the decision was given by the chair of the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) on 21 October 2008.", "23. On 22 October 2008 the first applicant appealed to the County Social Welfare Board against the emergency decision. She claimed that she and X could live together at her parents ’ house, arguing that her mother stayed at home and was willing to help care for X and that she and her mother were also willing to accept help from the child welfare services.", "24. On 23 October 2008 a family consultant and a psychologist from the parent-child institution drew up a report of the first applicant ’ s and her mother ’ s stay there. The report referred to an intelligence test that had been carried out in which the first applicant had obtained a higher score than 67 % of persons of her age on perceptual organisation (meaning organisation of visual material) and below 93% of persons her age on verbal understanding. On tasks that required working memory – the ability to take into account and process complex information – the first applicant had scored below 99% of persons her age. According to the report, the tests confirmed the clinical impression of the first applicant. Furthermore, the report stated that the institution ’ s guidance had focused on teaching the first applicant how to meet the child ’ s basic needs in terms of food, hygiene ( stell ) and safety. The first applicant had received verbal and hands-on guidance and had consistently ( gjennomgående ) needed repeated instructions and demonstration. In the staff ’ s experience, the first applicant often did not understand what was told or explained to her, and rapidly forgot. In the conclusion the report stated, inter alia :", "“The mother does not care for her child in a satisfactory manner. During the time the mother and child have stayed [at the parent-child institution] ..., the staff here ... have been very concerned that the child ’ s needs are not being met. In order to ensure that the child ’ s primary needs for care and food are met, the staff have intervened and closely monitored the child day and night.", "The mother is not able to meet the boy ’ s practical care needs. She has not taken responsibility for caring for the boy in a satisfactory manner. The mother has needed guidance at a very basic level, and she has needed advice to be repeated to her several times.", "Throughout the stay, the mother has made statements that we find very worrying. She has expressed a significant lack of empathy for her son, and has several times expressed disgust with the child. The mother has demonstrated very little understanding of what the boy understands and what behaviours he can control.", "The mother ’ s mental functioning is inconsistent and she struggles considerably in several areas that are crucial to the ability to provide care. Her ability to provide practical care must be seen in the light of this. The mother ’ s mental health is marked by difficult and painful feelings about who she herself is and how she perceives other people. The mother herself seems to have a considerable unmet care need.", "Our assessment is that the mother is incapable of providing care for the child. We are also of the opinion that the mother needs support and follow-up. As we have verbally communicated to the child welfare services, we believe it to be important that especially close care is taken of the mother during the period following the emergency placement.", "The mother is vulnerable. She should be offered a psychological assessment and treatment, and probably needs help in finding motivation for this. The mother should have an individual plan to ensure follow-up in several areas. The mother has resources (see the abilities tests) that she needs help to make good use of.”", "25. On 27 October 2008 the Board heard the appeal against the emergency placement decision (see paragraphs 22 and 23 above). The first applicant attended with her legal - aid counsel and gave evidence. Three witnesses were heard.", "26. In a decision of the same day, signed by the Board ’ s chairperson, the Board concluded that it had to rely on the descriptions given by the psychologist at the parent-child institution, who had drafted the institution ’ s report, and the representative from the municipal child welfare services. According to those descriptions, the first applicant had been unable to care for X properly ( betryggende ) in entirely essential and crucial respects ( helt vesentlige og sentrale områder ). Furthermore, she had said that she wanted to leave the institution. It had been obvious that she could not be given care of X without creating a risk that he would suffer material harm. Afterwards, the first applicant ’ s parents had said that they would be capable of ensuring that X was adequately looked after. However, the Board concluded that this would not provide X with sufficient security. The first applicant ’ s mother had given evidence before the Board and had stated that during her stay at the parent-child institution she had not experienced anything that gave rise to concern with respect to the first applicant ’ s care for X. This was in stark contrast to what had been reported by the psychologist. The Board also concluded that it was the first applicant who would be responsible for the daily care of X, not her mother.", "27. On the same day, 27 October 2008, X was sent to a child psychiatry clinic for an assessment.", "28. On 30 October 2008 the first applicant appealed against the Board ’ s decision of 27 October 2008 (see paragraphs 25 - 26 above) to the City Court ( tingrett ).", "29. On 13 November 2008 the first applicant visited X in the foster home; according to the notes taken by the supervisor, Z had received the result of a paternity test the day before which had shown that he was not the father. The first applicant stated that she did not know who the father could be. She could not remember having been with anyone else. The first applicant and the adviser from the child welfare services agreed that the first applicant would contact her doctor and ask for a referral to a psychologist.", "30. On 21 November 2008 an adviser working with emergency placements ( beredskapshjemskonsulent ) at the Office for Children, Youth and Family Affairs produced a report on the implementation of the emergency measure. In the conclusion she stated:", "“The boy arrived at the emergency foster home on 17/10 with little movement in his arms and legs, and making few sounds. He could not open his eyes because they were red, swollen and had a lot of discharge. He was undernourished, pale and weak [( slapp )]. After a few days he started to move, make sounds and develop skin colour. He ate well at all meals, and enjoyed bodily contact. He opened his eyes upon receiving the correct medication and gradually started to be in contact with his surroundings. Good routines were put in place and he was closely followed up with respect to nourishment and development.", "The boy has developed very well in all areas in the five weeks he has been living in the emergency foster home. The doctor and health visitors were satisfied with the boy ’ s development and have monitored him closely. Bup [( Barne - og ungdomspsykiatrisk poliklinikk – the Children ’ s and Young People ’ s Psychiatric Out-Patient Clinic )] has also followed up on the boy and reported possible stress symptoms developed by the boy during the pregnancy or the first weeks of his life. The emergency foster parents have provided favourable conditions for the boy to work on his development, and this has worked well. The boy needs stable adults who can give him good care, appropriate to his age [( aldersadekvat omsorg )], and satisfy his needs in future.”", "31. On 28 November 2008 the municipality applied to the County Social Welfare Board for a care order, submitting that the first applicant lacked caring skills with respect to a child ’ s various needs. They considered that X would rapidly end up in a situation in which he would be subjected to serious neglect if he were returned to the first applicant. As to contact rights, the municipality submitted that they assumed that it would be a matter of a long-term placement and that X would probably grow up in foster care. They stated that the first applicant was young, but that it was assumed that her capacity as a mother would be limited, at least in relation to X ( [m]or er ung, men det antas at hennes kapasitet som mor vil være begrenset, i hvert fall i forhold til dette barnet ).", "32. On 5 December 2008 the team at the child psychiatry clinic, who had carried out six different observations between 3 and 24 November 2008, in accordance with the instructions of 27 October 2008 (see paragraph 27 above), set out their results in a report, which read, inter alia, as follows :", "“[X] was a child with significantly delayed development when he was sent to us for assessment and observation. Today he is functioning as a normal two-month-old baby, and has the possibility of a good normal development. He has, from what can be observed, been a child at high risk. For vulnerable children the lack of response and confirmation, or other interferences in interaction, can lead to more or less serious psychological and developmental disturbances if they do not receive other corrective relationship experiences. The quality of the earliest interaction between a child and the closest caregiver is therefore of great importance for psychosocial and cognitive development. [X] bears the mark of good psychosocial and cognitive development now.”", "33. The City Court, composed of one professional judge, one psychologist and one lay person, pursuant to section 36-4 of the Dispute Act (see paragraph 133 below), heard the appeal against the Board ’ s decision in the emergency case (see paragraphs 25-26 and 28 above) on 12 January 2009. In its judgment of 26 January 2009 it stated first that an interim decision pursuant to the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 122 below) could only be made if the risk of harm was acute and the child would suffer material harm if not moved immediately. It went on to state that the case concerned a child who had been practically newborn when the interim care order had been made, and that the placement had since been reconsidered several times following appeals on the part of the mother.", "34. In its conclusion the City Court stated that it was in no doubt that X ’ s situation had been serious when the interim care order had been issued. He had shown clear signs of neglect, both psychologically and physically. The City Court found that the “material” harm requirement ( vesentlighetskravet ) in the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 122 below) had been met. X was at the time of its judgment in better health and showed normal development. This was due to the emergency foster parents ’ efforts and follow-up. The City Court did not consider that the first applicant ’ s ability to provide care had changed and feared that X would suffer material harm if he were now returned to her. This was still the case even if the first applicant lived with her parents and they supported her. It was her ability to provide care that was the matter of assessment.", "35. Based on the above, the City Court did not find grounds to revoke the emergency care order pending a decision by the County Social Welfare Board on the question of permanent care.", "36. The first applicant did not appeal to the High Court ( lagmannsrett ).", "C. Proceedings for a care order", "1. Proceedings before the County Social Welfare Board", "37. The Board, composed of an administrator qualified to act as a professional judge, a psychologist and a lay person, in accordance with section 7-5 of the Child Welfare Act (see paragraph 122 below), held a hearing on the child welfare services ’ request for a care order (see paragraph 31 above) on 17 and 18 February 2009. The first applicant attended and gave evidence. Seven witnesses were heard, including experts and the first applicant ’ s parents, their neighbour and a friend of the family. At the hearing the child welfare services requested that X be taken into local authority care, placed in a foster home and that the first applicant be granted contact rights for two hours, four times per year, under supervision. The first applicant sought to have the request for a care order rejected and X returned to her. In the alternative, she asked for contact rights of a minimum of once per month, or according to the Board ’ s discretion.", "38. In a decision of 2 March 2009 the Board stated at the outset that, independently of the parties ’ arguments and claims, its task was to decide whether X was to be taken into care by the child welfare services. If a care order were issued, the Board would also choose a suitable placement and determine the contact arrangements.", "39. The Board concluded that the fundamental condition set out in letter (a) of the first paragraph of section 4-12 of the Child Welfare Act had been met (see paragraph 122 below). In its opinion, a situation involving serious deficiencies in both psychological and practical care would arise if X were returned to live with the first applicant.", "40. The Board emphasised that it had assessed the first applicant ’ s ability as a caregiver and changes in her approach, not her condition or personality traits. However, the Board noted that the parent-child institution had considered the first applicant ’ s inability to benefit from guidance to be linked to her cognitive limitations. Reference was made to conclusions drawn by the institution to the effect that the relevant test results were consistent with their daily observations (see paragraph 24 above). The tests carried out at the institution were also largely consistent with previous assessments of the first applicant, and also with the concerns reported by, inter alia, the psychologist at the Office for Children, Youth and Family Affairs in the summer of 2008 (see paragraph 14 above). In the Board ’ s view, the above factors suggested that the first applicant ’ s problems were of a fundamental nature and that her potential for change was limited ( sier noe om at mors problematikk er av en grunnleggende karakter og at endringspotensialet er begrenset ).", "41. The Board stated that it had to conclude that a care order was necessary and in the best interests of X. As to a suitable placement, the Board stated that, having regard to his age and care needs, a foster home placement was clearly the best solution for X at the time. It issued a care order to that effect. Based on X ’ s age and vulnerability, the Board also decided that he should be placed in enhanced foster care – an arrangement whereby the foster home was given extra assistance and support – at least for the first year.", "42. Turning to the question of contact rights, the Board went on to state that, under section 4-1 9 of the Child Welfare Act (see paragraph 122 below), children and parents were entitled to contact with each other unless otherwise decided. When a care order was issued, the Board would determine the amount of contact and decisions regarding contact had to be in the child ’ s best interests, as provided for by section 4-1 of the Child Welfare Act (ibid.). The purpose and duration of the placement also had to be taken into consideration when the amount of contact was determined.", "43. On the grounds of the information available at the time of the Board ’ s decision, the Board envisaged that X would grow up in the foster home. This was on account of ( har sammenheng med ) the first applicant ’ s fundamental problems and limited potential for change ( mors grunnleggende problematikk og begrensede endringspotensial ) (see paragraph 40 above). This meant that the foster parents would become X ’ s psychological parents, and that the amount of contact had to be determined in such a way as to ensure that the attachment process, which was already well under way, was not disrupted. X had to be given peace and stability in his everyday life, and he was assumed ( det legges til grunn ) to have special needs in that respect. In the Board ’ s opinion, the purpose of contact had to be to ensure that he had knowledge of his mother.", "44. Based on an overall assessment, including of the above factors, the amount of contact was set at two hours, six times per year. The Board stated that it had some misgivings as to whether this was too frequent, particularly considering X ’ s reactions. However, it believed that contact could be somewhat improved by the child welfare services providing more guidance and adaptation and by a considerable reduction in the frequency of contact.", "45. In the Board ’ s opinion, it was necessary for the child welfare services to be authorised to supervise contact in order to ensure that X was properly cared for.", "46. The Board ’ s decision concluded with a statement to the effect that it would be for the child welfare services to decide on the time and place of the contact sessions.", "2. Proceedings before the City Court", "47. On 15 April 2009 the first applicant appealed to the City Court against the Board ’ s decision that X should be taken into public care (see paragraphs 38 - 46 above). She submitted, in particular, that adequate conditions in the home could be achieved through the implementation of assistance measures and that the care order had been decided without sufficient assistance measures having first been implemented.", "48. On 6 May 2009 the child welfare services sent the first applicant a letter in which she was invited to a meeting to discuss what sort of help they could offer her. The letter stated as follows :", "“The child welfare services are concerned that you receive help to process what you have been through in relation to the taking into care, etc. It is still an offer that the Child Welfare Service cover the costs of a psychologist, if you so wish.”", "49. On 14 May 2009 the first applicant attended a contact session together with two acquaintances. According to the report, a situation arose in which the supervisor from the child welfare services stated that the first applicant would have a calmer time with X if she were alone with him. The first applicant said that the supervisor had to understand that she wanted to bring people with her because she was being badly treated. It was ultimately agreed that one of the acquaintances would accompany the first applicant. During the session the first applicant stated that she had received an unpleasant ( ukoselig ) letter from the child welfare services offering her an appointment to discuss any help that she might need (see paragraph 48 above). The first applicant stated that she did not want any help and that she certainly did not need psychological counselling.", "50. On 19 August 2009 the City Court gave judgment on the question of the care order (see paragraph 47 above). At the outset the City Court stated that the case concerned judicial review of a care order issued pursuant to section 4-12 of the Child Welfare Act (see paragraph 122 below), which was to be considered pursuant to the rules in chapter 36 of the Dispute Act. When undertaking a judicial review of the County Social Welfare Board ’ s decision, the court had power to review all aspects of the decision, both legal and factual, as well as the administrative discretion. It was well established in law that its review of the Board ’ s decision should not be based on the circumstances at the time of the Board ’ s decision, but on the circumstances at the time of its judgment. The court would not therefore normally go into more detail regarding the Board ’ s assessment of the grounds for issuing a care order. However, the City Court went on to state that it nonetheless found that special reasons made it necessary to do so in the instant case.", "51. Based on the evidence presented to it, the City Court ultimately concluded that it had not, either at the time of its judgment or previously, been sufficiently substantiated that there existed such deficiencies in the first applicant ’ s ability to provide care that the conditions for the child welfare services maintaining care and control of X were met. It found, inter alia, that X ’ s problems with weight gain could have been due to an eye infection. The Board ’ s decision should therefore be revoked.", "52. X was therefore to be returned to the first applicant and the City Court found that the parties understood that this had to be done in a way that would prevent X from facing further trauma. X had lived with his foster parents for ten months and had formed an attachment to them. Based on what had emerged during the proceedings, the City Court assumed that the child welfare services would give the first applicant and the foster parents the assistance they needed. The first applicant had said that she was willing to cooperate and, given that willingness, the City Court believed that it must be possible to establish the cooperative environment necessary for the child welfare services to be able to provide the help she might need.", "53. In the days following the City Court ’ s judgment there were a number of email exchanges between the first applicant ’ s counsel and the child welfare services, and a meeting was held on 26 August 2009. The following day the first applicant, through her counsel, requested an appointment so that she could immediately ( omgående ) pick X up from the foster home and bring him home with her. She also requested that this be on Saturday 29 August 2009. She stated that the foster mother could deliver X and stay as long as she wanted. The foster mother was also welcome to visit X when she wished, upon agreement with the first applicant. Representatives from the child welfare services were not welcome.", "54. The applicant ’ s request to have X immediately returned to her was not met by the child welfare services, but the amount of contact was increased. On 1, 3, 4 and 7 September 2009 contact sessions were held at the house of the first applicant ’ s parents. The supervisor took detailed notes from each session as well as from conversations with the foster mother, and made a summary report of all the sessions. She noted, inter alia, that the foster mother had stated that the session on 1 September 2009 had “gone well [( gikk greit )] in many ways”, but that X had become very tired afterwards. He had been uneasy and difficult to put to bed. At the end of the session on 3 September, the supervisor noted that X appeared completely exhausted and pale. X ’ s apparent tiredness was noted also in relation to the sessions on 4 and 7 September. Furthermore, it emerges from the notes that the supervisor found it strange ( underlig ) that X had not been offered food, even though the family had been informed that it was his meal time. The supervisor had noted that the first applicant had taken note of this information on the first day, but then forgotten it again by the next day. The report stated that the supervisor was uncertain as to whether this had to do with the first applicant ’ s insecurity and fear of asking. The report also contained details about X ’ s reactions to the sessions, with respect to crying, sleeping, digestion and other behaviour.", "3. Proceedings before the High Court", "55. On 4 September 2009 the municipality sought leave to appeal against the City Court ’ s judgment (see paragraphs 50-52 above), requested that the Board ’ s decision of 2 March 2009 be upheld (see paragraphs 38-46 above), and concurrently applied for implementation of the City Court ’ s judgment to be suspended. The municipality argued, firstly, that the City Court ’ s judgment was seriously flawed. They claimed that it was unlikely that the eye infection could have been the reason for X ’ s slow weight gain. Moreover, the first applicant had had visits with X, but they had not worked well even though she had been given advice on how to improve them. X had had strong reactions after those visits. Secondly, the municipality submitted that the case raised a question of general interest, namely relating to the first applicant ’ s intellectual functioning ( kognitive ferdigheter ). They stated that she had general learning difficulties and that tests had shown that she had specific difficulties, with consequences for her daily functioning. Her abilities in verbal reasoning, relating to complex information and analysing and acting in situations that arose, were matters relevant to the provision of adequate care for a child. In that context the municipality referred to a number of questions that, in their view, had to be answered, relating, inter alia, to what the first applicant was or was not capable of doing – and whether it was appropriate to leave a small child with her – and whether there were realistic assistance measures that could compensate for her shortcomings.", "56. On 8 September 2009 the City Court decided to stay enforcement of its judgment until the High Court had adjudicated the case.", "57. In her response of 11 September 2009 to the municipality ’ s appeal, the first applicant, through her counsel, stated that the municipality had proceeded on the grounds that she was almost retarded ( nærmest er tilbakestående ) and therefore incapable of taking care of a child, which she found to be an insulting allegation ( grov beskyldning ). Nor were there, in her view, any flaws in the City Court ’ s judgment.", "58. On 9 October 2009 the child welfare services decided to appoint two experts – a psychologist, B.S., and a family therapist, E.W.A. – to assess X in relation to his strong reactions after the period in which there had been frequent contact sessions at the home of the first applicant ’ s parents (see paragraph 54 above). In addition to examining the reasons for X ’ s reactions, the experts were asked to provide advice and guidance to the foster mother as to how to handle the reactions and to the first applicant, if she agreed, with respect to the contact sessions.", "59. On 12 October 2009 the High Court granted leave to appeal on the ground that the ruling of, or procedure in, the City Court had been seriously flawed (see paragraph 55 above and paragraph 133 below). It also upheld the City Court ’ s decision to stay enforcement of the judgment (see paragraph 56 above).", "60. On 4 November 2009 the first applicant ’ s counsel asked the child welfare services whether the offer of counselling to the first applicant (see paragraph 48 above) was still valid. In their response, of 12 November 2009, the child welfare services stated that they were worried about the first applicant and that it was important that she obtained help. They confirmed that they would cover the costs of a psychologist or other counsellor of the first applicant ’ s choice and that they would not ask the person chosen for any information or to act as a witness in the child welfare case.", "61. On 15 November 2009 the High Court appointed an expert psychologist, M.S., to assess the case.", "62. On 20 February 2010 the two experts appointed by the child welfare services to examine the contact sessions and the effects on X (see paragraph 58 above) delivered their report, which was over 18 pages long. In the report they stated that they had not observed any contact sessions, “as this [had been] done by the expert appointed by the High Court”. They further stated that the first applicant had refused guidance with respect to the contact sessions. In the chapter entitled “ Is it possible to hypothesise on parents ’ competence in contact situations based on their competence as caregivers? ”, the following was stated:", "“When reviewing the various documents we find that [the parent-child institution] describes a severe lack of the abilities that are required in the mothering role, which is similar to the pattern we see during the contact sessions more than one year later. For example, the mother demonstrates a lack of ability in basic parental care during the contact sessions, as we have described above. Furthermore, her parental regulation during the contact sessions is insensitive. She seems to have significant problems with identifying X ’ s affects by sharing joy and making him feel secure and guiding him through confirmation and putting names on things. This is very serious.", "We find that the mother has significant problems in all the contact sessions and that it is difficult not to say that these problems will also extend to her general competence as a caregiver. In a report dated 19 February 2008, i.e. two years ago, Dr Philos. [H.B.], a specialist in clinical neurology, states the following:", "‘ There are no significant changes in the results of intelligence tests conducted before the operation and at the check-up two years after the operation. Her results in the intelligence tests have been very similar since she was 10.5 years old, i.e. her intelligence has been stable throughout all these years. ’", "He says that her intellectual functioning is approximately two standard deviations below her peers and that she has problems with her long-term memory and with transferring information from one thing to another.", "We find that it is more problematic than usual for the mother to have supervised contact sessions because of her cognitive issues, because from time to time [( fra gang til gang ) ] she does not know what to do in relation to the boy and because she is very driven by impulses. [H.B.] ’ s report also states that she has problems understanding the content of what she is reading, and we also find that she cannot read and understand the situation when she is with her child. We find this to be an important and fundamental issue in shedding light on the mother ’ s competence in contact situations and her competence as a caregiver. As regards the mother ’ s competence as a caregiver in relation to the mother ’ s cognitive skills, we assume that this will be further elucidated by [ M.S. ], the expert psychologist appointed by the Court of Appeal. This is considered to play a role in relation to the mother ’ s behaviour vis-à-vis X during the contact sessions and her struggle to become emotionally attuned to his needs at different ages.", "On page 5 of its report [(judgment)] from 2009, the City Court summarises [ the situation ] as follows:", "‘ It is generally known that many women, especially women who are giving birth for the first time, can have a psychological reaction after the birth which, in extreme situations, can take the form of serious postnatal depression. All reactions in the form of feelings of alienation and insecurity in relation to the newborn are within the normal range. ’", "We find that the mother ’ s difficulties during the contact sessions cannot be regarded as serious postnatal depression since the mother ’ s difficulties during the contact sessions have shown a similar pattern for more than 1.5 years. This is more a sign of inadequate basic parenting skills and is not related to postnatal depression alone. We consider it crucial [( avgjørende viktig )] that the mother ’ s difficulties during the contact sessions and her competence as a caregiver in general be understood in the light of more complex psychological explanatory models relating to both cognitive issues and serious traumatic experiences both early in life and as an adult, which we know, based on research, affect a person ’ s ability to function as a parent without considerable individual efforts and treatment. We assume that the expert psychologist will describe this in more detail.”", "63. On 3 March 2010 the expert psychologist appointed by the High Court, M.S. (see paragraph 61 above), delivered her report. She had observed two contact sessions, one attended by the first applicant alone and the other attended by the first applicant together with her mother and sister. The chapter entitled “Social and academic functioning” contained, inter alia, the following:", "“Throughout the years SSE [( Statens senter for epilepsi )] has carried out repeated assessments of [the first applicant] using tests that measure the course of her illness and tests that focus more on describing her functioning. In this case, there has been a particular focus on the WISC-R test, which has been conducted both pre- and postoperatively. The results from this test are expressed as an IQ score which has been a topic of discussion in the child welfare case of which the present report is also a part. It is therefore relevant to make some comments on these test scores.", "The WISC-R is a very well-known and frequently used test to measure intellectual abilities in children. Such abilities are associated with school performance. The test result provides useful information about a child ’ s ability to learn and make use of learning. A functioning profile from a WISC-R test therefore forms the basis for targeted special education measures in school and can help when preparing individually adapted educational arrangements for children with special needs.", "The end-product of an intelligence test is an IQ score, which is an operational definition of intelligence that provides a numeric expression of how abilities defined as intelligence are distributed among individuals in a population. The test is standardised, i.e. there is a statistical normal distribution with an average deviation on both sides. The WISC-R has a defined average of 100 with a standard deviation of +-15. A score within the range of distribution 85-115 is said to be within the normal range, where 68% of the population of comparison are situated, whereas 98% are within two standard deviations, i.e. 70-130 points. When conducting a diagnostic assessment of an IQ score, persons with IQ scores between 50 and 69 are defined as slightly mentally retarded. Intelligence test performance can be improved in the course of a person ’ s developmental history if the fundamental cognitive resources are there. In this case, there is information that [the first applicant] ’ s IQ score has been stable throughout her childhood and adolescence, which means that she has not caught up intellectually after her brain surgery.", "1.3. Summary", "Anamnestic information from the school, the specialist health service and the family provides an overall picture of weak learning capacity and social functioning from early childhood into adulthood. [The first applicant] performed poorly at school despite good framework conditions, considerable extra resources and good efforts and motivation on her own part. It is therefore difficult to see any other explanation for her performance than general learning difficulties caused by a fundamental cognitive impairment. This is underlined by her consistently low IQ score – regardless of the epilepsy surgery.", "She also had problems with socio-emotional functioning, which has also been a recurring topic in all the documents that deal with [the first applicant ’ s] childhood and adolescence. A lack of social skills and social adaptation is reported, primarily related to social behaviour that is not commensurate with her age [( ikke-aldersadekvat sosial fremtreden )] ( ‘ childish ’ ) and poor impulse control. It is also stated that [the first applicant] has been very reserved and had low self-confidence, which must be seen in conjunction with her problems.”", "In the chapter entitled “Assessment of care functioning, competence in contact situations and the effect of assistance measures”, the report contained the following:", "“5.1. Competence as a caregiver", "As is clear from the above, I have placed particular emphasis on the consequences of [the first applicant ’ s] condition in relation to her general functioning and whether she has what it takes to care for a child. It is important to note that neither [the first applicant] herself nor her parents believe that there is a connection between her history of illness, her adult functioning and her ability to provide care.", "It is not the case that epilepsy deprives people of their ability to provide care, just as a low IQ score in itself is not a reason to take a child into care. However, a test result can help to elucidate why someone ’ s functioning capacity is impaired, particularly if this is seen in conjunction with other observations and descriptions.", "[The first applicant] has had serious refractory epilepsy since she was an infant. This is an unstable form of epilepsy that changes the brain and affects the entire personality development. There is also the matter of the side effects of the strong medication she took throughout her childhood. Dr [R.B.L.] at SSE, who knows [the first applicant] ’ s history very well, talks about ‘ the burden of epilepsy ’, i.e. the socio-emotional problems that can be generated through a reduced ability to learn and social maladjustment. It is therefore completely reasonable to assume that the burden of the disease in itself has set her back somewhat. Objective measurements of her functioning made at different times during her upbringing confirm this. Seen in conjunction with clinical observations, an impression is formed of [the first applicant] as a young woman with significant cognitive impairment. In my opinion, this is what the public health services identified when [the first applicant] reported her pregnancy and that gave cause for concern. Terms such as ‘ immature ’ and ‘ childish ’ frequently occur in descriptions of her behaviour throughout her upbringing and are still used now that she is 24 years old. [The first applicant] ’ s appearance and behaviour largely qualify her for the use of such adjectives: she is small, delicate and looks much younger than her chronological age. She lives at home with her parents where her room has Moomins wallpaper and is filled with objects you would expect to see in a teenager ’ s room.", "I am concerned about [the first applicant] ’ s self-care. She seems young, insecure and partly helpless. Her relationship with men seems unclear. She had a romantic relationship with a man whom she also lived with for a short time, but the relationship was characterised by turbulence with episodes of sexual violence. She became pregnant with X while she was still together with her boyfriend, without [the first applicant] having been able to explain how it came about that her boyfriend is not the child ’ s father. She has seemed confused about this and has told different stories. She has also contracted a sexually transmitted disease (chlamydia) without knowing the source of the infection. [The first applicant] has wanted a child, but has left things up to chance without considering the consequences of having sole responsibility for the child and what this requires. On 7 November 2007 she told the doctor at SSE that she was not using birth control and thought that she might be pregnant at that time. Later that same day she said that she wanted to become pregnant. An abortion was carried out on the basis of social indications at [R. hospital] in November 2007 of a foetus in the 18th week of the pregnancy. [The first applicant] took a photograph of the foetus, which may seem like a bizarre action. She also received a hand and footprint of the foetus. [R. hospital] described [the first applicant] as immature with a limited network.", "The circumstances surrounding both pregnancies say something about [the first applicant] ’ s awareness of her own choices and their consequences. This is important in the assessment of her ability to care for a child.", "Furthermore, [the first applicant] has not completed an education and has not been in permanent employment. She has for the most part lived at home in her old room and has little experience of living as an independent adult with responsibility for creating structure in her life, ensuring an income and deciding on financial priorities. Her relationship with her parents is described as good at the moment, but there have been conflicts in the past. I perceive their relationship to be vulnerable. [The first applicant] herself expresses a great deal of ambivalence towards her mother, because, on the one hand, she thinks that her mother interferes too much with her life, while, on the other hand, she is very dependent on her, takes her opinions as her own and trusts her to be her guide. At the same time she is annoyed that her mother defines many things for her and wishes that her mother ‘ would get it into her thick head ’ that she needs a bit more privacy than at present. According to her mother, [the first applicant] just sat in her room after her son was taken into care. Her mother is very worried and says that she ‘ can hardly stand ’ seeing her daughter like that.", "In my opinion, [the first applicant] has problems with emotional regulation, which makes interaction with other people difficult for her. Since the child was taken into care, [the first applicant] has been offended, hurt and angry. These emotions are fully understandable when you feel that you have been treated unfairly, but in this case they are expressed without censorship to such an extent that it seems conspicuous. Describing the County Social Welfare Board as ‘ a bunch of rotten women who are bought off by the child welfare services ’ and the staff at [the parent-child institution] as ‘ those psychotic people ’ does not help to create an impression of an adult person who is capable of socialising with other adults in a socially appropriate manner. [The first applicant] ’ s intense outbursts of crying, both at home with her parents when we are discussing the case and during contact sessions, is also unusual behaviour for an adult. Nor is sobbing into the lap of one ’ s father or mother (as described in connection with the contact sessions) a sign that one is able to control one ’ s emotions in a manner that is commensurate with one ’ s age. Nor has [the first applicant] handled her son ’ s behaviour very maturely, but has rather felt personally rejected and acted accordingly.", "It is difficult to stick to the matter at hand with [the first applicant]. Her cognitive style is characterised by an inability to see connections, or to generalise. She demonstrates egocentric thinking when she keeps bringing up the evil child welfare services and when referring to how her parents and everyone else find it incomprehensible that the child was taken into care. I refer to the statement by the psychologist from [the parent-child institution] that ‘ the mother makes statements that are difficult to attach any meaning to. ’ The view that I have formed of [the first applicant] during our conversations is that she has a fragmented view of situations, meaning that different episodes are understood as individual episodes that have no connection. Accordingly, guidance is perceived as criticism, good advice as scolding etc. This inability to generalise is characteristic of [the first applicant] ’ s thinking. She also lacks the capability of abstract thinking and formal thought operations. It is difficult for her to think forwards and backwards in time. Hence, it is not easy to get an answer as to what ideas she has regarding a possible return of the child. She makes some general statements, for example that she must ask what he likes to eat and whether he watches children ’ s TV, whereas she does not offer any reflections on what special measures should be taken relating to the child ’ s emotional stress if he were to be moved. When I ask what the foster mother should do to help during the process of returning the child, [the first applicant] has no constructive suggestions. What she wants, however, is ‘ that she (the foster mother) should feel as shitty as I have for the past year ’. Such a statement, combined with the manifest hostility ( uttalt fiendtlighet ) during the contact sessions, does not bode well for co-operation with either the foster home or the child welfare services should the boy be returned.", "[The first applicant] has used a lot of energy on her aggression and developing hostile opinions. This has contributed to cementing the stereotypes about the child welfare services and all other helpers as adversaries. [The first applicant] ’ s thinking is characterised by an ‘ if you ’ re not with me, you ’ re against me ’ attitude, and she is unable to see nuances. Such black-and-white thinking is characteristic of individuals with limited cognitive capacity. Furthermore, I perceive [the first applicant] as being depressed. I consider her intense aggression as a strategy for holding it together psychologically.", "There is no reason to doubt [the first applicant] ’ s intense wish to become a good mother. She contacted the support services herself for this purpose. What ideas and expectations she had in that regard remain unclear, however. Her mother has indicated that they thought [the parent child-institution] was a sort of hotel where you could get practical help with child care. Despite all the preparatory work and thorough information provided beforehand, they did not understand that an assessment stay requires the parent to show their qualities, be observed and be placed in a learning situation. Consequently, [the first applicant] feels very betrayed and deceived – which is expressed as abusive language and threats.", "The stay at [the parent-child institution] illustrates that [the first applicant] had problems handling and retaining information in such a manner that it could be used to guide her behaviour. It is not a question of a lack of willingness but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect.", "5.2. The effect of assistance measures", "Weight is attributed to the fact that [the first applicant] is now living with her parents and can continue to do so for as long as is necessary. This is an assistance measure of sorts. This may become more problematic than it would seem, however: [the first applicant] is 24 years old and wishes to become autonomous, a desire which may conflict with her mother ’ s desire to help. Neither her parents nor anyone else will be able to dictate how [the first applicant] should organise her life and her child ’ s life. If [the first applicant] wants to move out, she can do this whenever she wishes. Her parents are not concerned about this. A decision must therefore be based on the fact that – should the child be returned – one cannot with a sufficient degree of certainty know where the child ’ s care base will be in future. It must therefore primarily be based on [the first applicant] ’ s ability to provide care, not her network ’ s ability to provide care.", "The stay at the family centre was a strong assistance measure which had no effect. The child welfare services ’ follow-up of contact sessions has had a negative impact on the cooperation between the [applicant ’ s] family and the child welfare services. Both the family and [the first applicant] have stated that they do not want follow-up or assistance in connection with returning the child.", "5.3. Conclusions", "In my assessment, there are grounds for claiming that there were serious deficiencies in the care the child received from the mother, and also serious deficiencies in terms of the personal contact and security he needed according to his age and development. [The first applicant] ’ s cognitive impairment, personality functioning and inadequate capacity for mentalisation make it impossible to have a normal conversation with her about the physical and psychological needs of small children. Her assessments of the consequences of having the child returned to her care and what it will demand of her as a parent are very limited and infantile, with her own immediate needs, there and then, as the most predominant feature. It is therefore found that there is a risk of such deficiencies (as mentioned above) continuing if the child were to live with his mother.", "It is also found that satisfactory conditions for the child cannot be created with the mother by means of assistance measures pursuant to section 4-4 of the Child Welfare Act (e.g. relief measures in the home or other parental support measures) due to a lack of trust and a reluctance to accept interference from the authorities – taking the case history into consideration.”", "64. The High Court held a hearing from 23 to 25 March 2010. The first applicant attended with her legal - aid counsel. Eleven witnesses were heard and the court-appointed expert, psychologist M.S. (see paragraph 61 above), made a statement. The municipal child welfare services submitted, principally, that there should be no contact between the applicants. In the alternative, contact should take place only twice a year. The child welfare services maintained that it was a matter of a “long-term placement” ( langvarig plassering av barnet ).", "65. In a judgment of 22 April 2010 the High Court upheld the Board ’ s decision that X should be taken into compulsory care (see paragraphs 38-46 above). It also reduced the first applicant ’ s contact rights to four two-hour visits per year.", "66. The High Court had regard to the information in the report produced by the parent-child institution on 23 October 2008 (see paragraph 24 above). It also took account of the family consultant ’ s testimony before the court, in which it had been stated that the first applicant ’ s mother had lived with her at the institution for the first four nights (see, also, paragraph 17 above). It went on to state:", "“It was particularly after this time that concerns grew about the practical care of the child. The agreement was that [the first applicant] was to report all nappy changes etc. and meals, but she did not. The child slept more than they were used to. [The family consultant] reacted to the child ’ s breathing and that he was sleeping through meals. Due to weight loss, he was to be fed every three hours around the clock. Sometimes, the staff had to pressure the mother into feeding her son.”", "67. The High Court found that the parent-child institution had made a correct assessment and – contrary to the City Court (see paragraph 51 above) – considered it very unlikely that the assessment would have been different if X had not had an eye infection.", "68. Furthermore, the High Court referred to the report of 5 December 2008 from the child psychiatry clinic (see paragraph 32 above). It also took into account the report of the court-appointed expert, M.S. (see paragraph 63 above).", "69. As the stay at the parent-child institution had been short, the High Court found it appropriate to consider the first applicant ’ s behaviour ( fungering ) during the contact sessions that had been organised subsequent to X ’ s placement in foster care. Two people had been entrusted with the task of supervising the sessions, and both had written reports, neither of which had been positive. The High Court stated that one of the supervisors had given an “overall negative description of the contact sessions”.", "70. The High Court also referred to the report of the psychologist and the family therapist appointed by the child welfare services, who had assessed X in relation to the reactions that he had shown after visits from the first applicant (see paragraphs 58 and 62 above).", "71. Furthermore, the High Court noted that the court-appointed psychologist, M.S. (see paragraphs 61 and 63 above), had stated in court that the contact sessions had appeared to be so negative that she was of the opinion that the mother should not have a right of contact with her son. The contact sessions were, in her view, “not constructive for the child”. In conclusion to the question of the first applicant ’ s competence as a carer, she stated in her report (see paragraph 63 above) that the stay at the parent-child institution had illustrated that the first applicant “had problems handling and retaining information in such a manner that it could be used to guide her behaviour”. She went on to state:", "“It is not a question of a lack of willingness, but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect” (ibid.).", "72. The High Court agreed with the expert M.S. ’ s conclusion before proceeding to the question whether assistance measures could sufficiently remedy the shortcomings in the first applicant ’ s parenting skills. In that respect, it noted that the reasons for the deficiencies in competence as a carer were crucial. The High Court referred at this point to the expert ’ s description of the first applicant ’ s medical history, namely how she had suffered from serious epilepsy since childhood and until brain surgery had been carried out in 2005, when the first applicant had been 19 years old.", "73. The High Court noted that M.S. had also pointed out that the first applicant ’ s medical history must necessarily have affected her childhood in several ways. It based its assessment on the description by M.S. of the first applicant ’ s health problems and the impact they had had on her social skills and development. It further noted that placement at a parent-child institution had been attempted as an assistance measure (see paragraph 17 above). The stay had been supposed to last for three months, but had been interrupted after just under three weeks. As a condition for staying longer, the first applicant had demanded a guarantee that she be allowed to take her son home with her after the stay. The child welfare services had been unable to give such a guarantee, and the first applicant had therefore returned home on 17 October 2008.", "74. The High Court noted that relevant assistance measures were assumed to consist of a supervisor and further help and training in how to care for children. However, the High Court found that it would take so long to provide the first applicant with sufficient training that it was not a real alternative to continued foster-home placement. Furthermore, the result of such training was uncertain. In that connection the High Court attached weight to the fact that both the first applicant and her immediate family had said that they did not want follow-up or assistance if X were returned to them. It agreed with the conclusions of the court-appointed expert, M.S. (see paragraph 63 above).", "75. The High Court ’ s conclusion in its judgment of 22 April 2010 was that a care order was necessary and that assistance measures for the mother would not be sufficient to allow her son to stay with her. The conditions for issuing a care order under the second paragraph of section 4-12 of the Child Welfare Act were thus met (see paragraph 122 below). In that connection the High Court also gave weight to the attachment that X had formed to his foster parents, particularly the foster mother. As to contact rights, the High Court stated that exceptional and strong reasons were required to deprive a parent of the right of contact after a child had been taken into care, since contact was normally considered to be in the child ’ s best interests, particularly in a long-term assessment. In the instant case, despite the negative information about the contact sessions and the expert psychologist M.S. ’ s recommendation that the first applicant should not be given any contact rights, the High Court found that exceptional and strong reasons for denying contact did not exist, but that contact sessions should not take place at too short intervals. It went on to state:", "“As regards the frequency of the contact sessions, the High Court is split into a majority and a minority.", "The majority ... have found that an appropriate amount of contact would be two hours four times a year.", "The majority find reason to emphasise that only the mother has a right of contact. The fact that she has rarely met with [X] alone has had some unfortunate consequences. The tense atmosphere between the adults present has intensified. The stress for the child must be assumed to increase when more people are present. Fewer participants will lead to a calmer atmosphere. This is also in line with the psychologist [M.S. ] ’ s observations. The atmosphere between the adults may also become less tense when the case has been legally resolved and some time has passed. The fact that the contact sessions will become less frequent than under the previous arrangement will also reduce the stress for the child. It must be assumed that the child ’ s subsequent reactions will then decrease. However, the most important factor will be whether the mother and, if relevant, any other family members manage to cooperate better and preferably convey a positive attitude towards the foster mother, in particular during the contact sessions.", "The majority ’ s conclusion that the contact sessions cannot be more frequent than four times a year is related to what is discussed above. In addition, the placement will most likely be a long-term arrangement. The contact sessions may thus serve as a way of maintaining contact between the mother and son so that he is familiar with his roots. This is believed to be important to the development of identity. The purpose of the contact sessions is not to establish a relationship with a view to a future return of the child to the care of his biological mother.", "The child welfare services must be authorised to supervise the exercise of the right of contact. This is necessary for several reasons, including to limit the number of participants during the sessions.”", "The minority of the High Court – one of the professional judges – was of the opinion that the contact rights should be fixed at twice a year.", "76. The first applicant did not lodge an appeal against the judgment, which thus became legally binding.", "D. The first applicant ’ s complaint to the County Governor", "77. In an undated letter the first applicant complained about the child welfare services to the County Governor ( fylkesmannen ). She alleged that the child welfare services had lied and said that she was retarded; the psychologist appointed by the High Court (see paragraph 61 above) had been partial and should never have been allowed to come into her home; in contact sessions, the first applicant was bullied and harassed by the supervisor and the foster mother if she came alone, and she was not allowed to bring her own parents any more. She stated that one could only wonder how retarded they were, or how low an IQ they had. The whole case, she maintained, had been based on lies. She also alleged that the child welfare services removed a person ’ s capacities ( umyndiggjør ) and gladly made people retarded ( gjør gjerne folk evneveike ) in order to procure children for themselves or their friends.", "78. The director ( barnevernleder ) of the municipal child welfare services replied on 22 July 2010 saying that the first applicant and her family were more interested in conflict with the child welfare services than in establishing good and positive contact with X. The first applicant had complained early on about the staff from the child welfare services, who, in return, had met her wish to be assigned a new supervisor, but nothing had changed in the first applicant ’ s attitude. The amount of contact had been increased to three times a week in accordance with the City Court ’ s judgment (see paragraph 54 above), and X had had strong reactions to this. The director of the child welfare services further stated that they understood that the situation was difficult for the first applicant and had offered her help (see, inter alia, paragraph 48 above). With respect to the contact sessions, they had tried several alternatives. They had at first carried out the sessions in a meeting room at their offices, where the supervisor and foster mother could sit at a table some distance away from the first applicant and X, though in a manner that enabled them to intervene if supervision were necessary. The first applicant had complained about this solution. There had then been some sessions in the foster home, but the foster mother had found this difficult because the atmosphere was very bad and they wanted the foster home to be a secure environment for X. Thereafter they had borrowed an apartment designated for purposes such as contact sessions. This had also not suited the first applicant, who had again complained. They had then gone back to having visits at the child welfare services ’ offices, where a new room for such purposes had since been made available.", "79. The director of the child welfare services also stated that the foster mother was still present during contact sessions. This had been considered as entirely necessary, as she was the secure carer for X. It had also been considered necessary to have a supervisor present to guide the first applicant. The supervisor ’ s task was also to stop the contact sessions if the first applicant refused guidance. So far, sessions had not been stopped, but the supervisor had tried to tell the first applicant that it was important to focus on X and enjoy being with him, instead of yelling at the child welfare services and the foster mother.", "80. In a letter to the first applicant, dated 26 July 2010, the County Governor, following the child welfare services ’ response to their inquiry, informed her that they had no objections to the work of the child welfare services in the case.", "E. Proceedings to lift the care order or withdraw the first applicant ’ s parental responsibilities for X and authorise his adoption", "1. Proceedings before the County Social Welfare Board", "( a ) Introduction", "81. On 29 April 2011 the first applicant applied to the child welfare services for termination of the care order or, in the alternative, extended contact rights with X.", "82. On 13 July 2011 the municipal child welfare services forwarded the request to the County Social Welfare Board. The municipality proposed that it be rejected; that the first applicant ’ s parental responsibilities for X be withdrawn (transferred to the authorities), and that X ’ s foster parents, with whom he had resided since he was taken into care (see paragraph 22 above), be granted permission to adopt him. The identity of X ’ s biological father was still unknown to the authorities. In the alternative, the municipality proposed that the first applicant ’ s contact rights be removed.", "83. During a contact session on 6 September 2011 the supervisor noticed that the first applicant was pregnant and asked when the baby was due, to which the first applicant, according to the supervision notes, answered that she thought it was around New Year ’ s Eve. According to the notes, the contact session went well.", "84. On 13 September 2011 the first applicant ’ s counsel engaged a specialist in clinical neurology to test her abilities and to map her cognitive capacities.", "85. In letters of 14 September and 28 October 2011, in the course of the proceedings before the Board, the municipality asked for further information about the first applicant ’ s husband, in order to be able to make contact with him and talk to him about his future role in the first applicant ’ s life.", "86. Meanwhile, on 18 October 2011, the first applicant gave birth to Y. She had married the father of Y in the summer of that year. The new family had moved to a different municipality. When the child welfare services in the first applicant ’ s former municipality became aware that she had given birth to another child, they sent a letter expressing concern to the new municipality, which started an investigation into her parenting abilities.", "87. Also on 18 October 2011, the specialist in clinical neurology engaged by the first applicant ’ s counsel (see paragraph 84 above) produced his report. His conclusion read as follows:", "“Wechsler Adult Intelligence Scale III (WAIS-III) shows an IQ of 86. Standard errors in measurements indicate that, with a 95% probability, she has an IQ of between 82 and 90. The normal range is between 85 and 115. Ability-wise, [ the applicant] is within the lower part of the normal range. In addition she shows considerable learning difficulties that are ... [greater] than what her IQ should indicate [( betydelige lærevansker som er svakere enn hva hennes IQ skulle tilsi )]. These difficulties are considered to be consistent with a cognitive impairment.”", "In response to a request for follow-up, he wrote to the first applicant ’ s counsel on 27 October 2011 stating as follows :", "“A general IQ of between 82 and 90 is not in itself a disqualifying factor with respect to having care for children. Care abilities should to a greater extent be examined through observation of the care person and the child, and anamnestic information about other circumstances. Not being an expert in this field, I think that an assessment of crucial factors would include, among other things, the care person ’ s ability for empathy and meeting the child, understanding of the child ’ s needs, ability to interpret signals from the child, and ability to set aside [( utsette )] their own wishes for the benefit of the child ’ s needs.", "Such an assessment should be made by a qualified psychologist with experience in the field.”", "88. On 8 November 2011 the first applicant ’ s counsel sent a copy of a medical journal dated 2 November 2011 to the Board. It appeared from the copy that a doctor had agreed to give evidence by telephone during the upcoming case and that the doctor could not see that there was anything connected with the first applicant ’ s epilepsy or cognition that would indicate that she was not capable of taking care of her child.", "89. On 28, 29 and 30 November 2011 the County Social Welfare Board, composed of a lawyer, a psychologist and a lay person, held a hearing at which the first applicant was present together with her legal representative. Twenty-one witnesses were heard.", "( b ) The Board ’ s decision", "90. On 8 December 2011 the Board decided that the first applicant ’ s parental responsibilities for X should be withdrawn and that X ’ s foster parents should be allowed to adopt him. The Board found that there was nothing in the case to indicate that the first applicant ’ s parenting abilities had improved since the High Court ’ s judgment of 22 April 2010 (see paragraphs 65 - 75 above). Therefore she was still considered incapable of giving X adequate care. Moreover, the Board stated:", "“In her statement before the County Social Welfare Board, the mother maintained her view that the care order was a conspiracy between the child welfare services, [the parent-child institution] and the foster parents for the purpose of ‘ helping a woman who is unable to have children ’. In the mother ’ s words, it was a question of ‘ an advance order for a child ’. The mother had not realised that she had neglected [X], and stated that she spent most of her time and energy on ‘ the case ’.", "The reports from the contact sessions between the mother and [X] consistently [( gjennomgående )] show that she is still unable to focus on [X] and what is best for him, but is influenced by her very negative view of the foster mother and of the child welfare services.", "[The first applicant] has married and had another child this autumn. The psychologist [K.M.] has stated before the Board that he observed good interaction between the mother and child and that the mother takes good care of the child. The Board takes note of this information. In the County Social Welfare Board ’ s opinion, this observation cannot in any case be used as a basis for concluding that the mother has competence as a caregiver for [X].", "The County Social Welfare Board finds it reasonable to assume that [X] is a particularly vulnerable child. He experienced serious and life-threatening neglect during the first three weeks of his life. Reference is also made to the fact that there have been many contact sessions with the mother, some of which have been very stressful for [X]. All in all, he has been through a lot. He has lived in the foster home for three years and does not know his biological mother. If [X] were to be returned to the care of his mother, this would require, among other things, a great capacity to empathise with and understand [X] and the problems he would experience, not least in the form of mourning and missing his foster parents. The mother and her family appeared to be completely devoid of any such empathy and understanding. Both the mother and grandmother stated that it would not be a problem, ‘ he just had to be distracted ’, and thus gave the impression of not having sympathy with the boy and therefore also being incapable of providing the psychological care he would need in the event of a return.”", "91. In addition, the Board had especially noted the conclusions of the expert M.S. (see paragraph 6 3 above). They had been quoted by the High Court in its judgment of 22 April 2010 (see paragraphs 65 - 75 above). The Board found that this description of the first applicant was still accurate. In any event, it was decisive that X had established such a connection to his foster family that removing him would result in serious and permanent problems for him.", "92. The Board further stated:", "“[X] has lived in the foster home as an equal member of the family for three years. These three years are the boy ’ s whole life. We find it to be substantiated that his primary source of security and sense of belonging is his foster family. He sees the foster parents as his psychological parents. In addition to his foster family, [X] receives good follow-up in kindergarten and from the rest of the foster parents ’ family. We have no doubt that removing [X] from this environment and returning him to his biological mother would lead to considerable and serious problems. Reference is made to the fact that he had already developed considerable problems after one year, when the amount of contact was increased significantly. In our assessment, it is of crucial importance to the boy ’ s development and welfare that he continue to live in the foster home.", "On this basis the County Social Welfare Board must determine the question of withdrawal of parental responsibilities and, if relevant, consent to adoption.", "The first and second paragraphs of section 4-20 of the Child Welfare Act state that a decision to withdraw parental responsibilities from the parents can be made, and is a precondition for granting consent to adoption. The condition is that the County Social Welfare Board has made a care order for the child.", "The Board bases its decision on established case-law allowing for parental responsibilities to be withdrawn from biological parents in order to make an adoption possible. This is the primary objective of the child welfare services ’ proposal to withdraw the mother ’ s parental responsibilities in the present case.", "The wording of section 4-20 of the Child Welfare Act specifies far stricter conditions for granting consent to adoption than for withdrawing the parents ’ parental responsibilities. However, when the purpose of a decision pursuant to the first paragraph is to open up the possibility for adoption, the grounds that indicate adoption will also constitute the grounds for withdrawal of parental responsibilities.", "The matter to be determined in this case is thus whether the conditions for granting consent to adoption are met. The third paragraph of section 4-20 of the Child Welfare Act reads as follows:", "‘ Consent may be given if", "(a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment in which he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and", "(b) adoption would be in the child ’ s best interests, and", "(c) the persons applying for adoption have been the child ’ s foster parents and have shown themselves to be fit to bring up the child as their own, and", "(d) the conditions for granting an adoption under the Adoption Act are satisfied. ’", "The County Social Welfare Board will start by observing that there are good grounds for withdrawing the mother ’ s parental responsibilities for [X], regardless of the issue of adoption. Reference is made to the fact that [X] has lived in the foster home for practically his whole life, and it is therefore most natural that the foster parents make the decisions on his behalf that come with parental responsibilities. The mother ’ s insensitive behaviour, not least online, also indicates that she could cause many problems for him [( ramme ham hardt )] when he becomes old enough to understand.", "The County Social Welfare Board considers [( legger til grunn )] that the mother will be permanently unable to provide [X] with proper care, and that [X] has become so attached to his foster parents, foster brother and the rest of the family that moving him would lead to serious problems for him. Reference is made to the above discussion. The condition in letter ( a) of [the third paragraph of] section 4-20 of the Child Welfare Act is met.", "Adoption is a particularly invasive measure in relation to the biological parents and the child. Therefore, particularly weighty reasons are required. Pursuant to Supreme Court case-law, the decision must be based on a concrete assessment, but must also build on general experience from child psychology or child psychiatry. Reference is made in particular to the Supreme Court decision in Rt. 2007 page 561 ff., which refers to a court-appointed expert who had stated that general experience indicated that a foster-home relationship was not the preferable option for long-term placement of children who had come to the foster home before establishing an attachment to their biological parents. In such cases, adoption would be most conducive to the child ’ s development. The judgment stated that considerable importance must be attached to such general, but nuanced experience.", "The County Social Welfare Board bases its decision [( legger til grunn ) ] on the mother not consenting to [X] being adopted. As shown above, she has a strong, if inappropriate [( uhensiktsmessig )], commitment to having him returned to her care.", "In the County Social Welfare Board ’ s assessment, consent to an adoption will clearly be in [X] ’ s best interests. The County Social Welfare Board does not believe that returning [X] to his mother ’ s care is an option. This foster-home placement is considered permanent. [X] sees his foster parents as his psychological parents, and they are the only parents he knows. An adoption would give [X] further assurance that he is his foster parents ’ son.”", "93. The Board went on to make another reference to the Supreme Court ’ s ( Høyesteretts ) decision in Norsk Retstidende ( Rt. ) 2007, page 561 (see, also, paragraph 125 below) and found that the reasoning underlying the following passage from that judgment – reiterated in Aune v. Norway (no. 52502/07, § 37, 28 October 2010) – was also pertinent in the present case:", "“A decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of the child welfare services – the public authorities – and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated. ...”", "The Board considered these general reflections to be an accurate description of X ’ s situation as well. An adoption would be in X ’ s best interests. The condition in letter (b) of the third paragraph of section 4-20 of the Child Welfare Act (see paragraph 122 below) was deemed to be met.", "94. Furthermore, the foster parents had been X ’ s emergency foster parents and later his foster parents since his emergency placement when he was three weeks old. The Board stated that it had been documented that they had provided X with excellent care and that the attachment between them and X was good and close. The foster parents had a strong wish to adopt X. In the Board ’ s opinion, the foster parents had demonstrated that they were suited to raise X as their own child. The conditions set out in letter (c) of the third paragraph of section 4-20 of the Child Welfare Act Section 4-20 (see paragraph 122 below) were deemed to be met.", "95. In conclusion, the adoption would be in X ’ s best interests. The Board took Article 8 of the Convention into consideration when making its decision.", "2. Proceedings before the City Court", "( a ) Introduction", "96. On 19 December 2011 the first applicant appealed against the decision, claiming that the Board had made an incorrect evaluation of the evidence when deciding that she was unable to give X adequate care. She considered that it would be in X ’ s best interests to be returned to her and argued that her situation and her caring skills had changed. She was now married and the couple had a baby. She submitted that the child welfare services in their new municipality assisted them in taking care of the baby. Moreover, in her view, removing X from the foster home would cause him problems only in the short term; no long-term problems could be expected. X had only stayed in the foster home for a short time, and it had not been the foster parents who had expressed a wish to adopt the child but the child welfare services who had taken that initiative. The first applicant also claimed that the visits between her and X had worked satisfactorily; if the child welfare services considered the contact sessions to be inadequate it was for them, as the stronger party, to take action to ensure that they be made satisfactory.", "97. The municipality opposed the appeal and submitted in their response that X, who was then three years and four months old and had lived in the foster home since he was three weeks old, had become attached to the foster home. They maintained that it would cause serious and long-lasting problems for him if he were returned at the present time. He had no recollection of the period when he had been in his mother ’ s care. In the municipality ’ s view, the first applicant ’ s ability to care for X had not changed since the High Court ’ s judgment of 22 April 2010. The visits between X and the first applicant had not worked well. She had had outbursts during the visits and had left before the time was up. Afterwards X had reacted negatively. The first applicant and her mother had manifested a very negative attitude towards the child welfare services. The first applicant had claimed that the child welfare services assisted them in taking care of the baby, whereas the truth was that they had denied the child welfare services access to their home and, accordingly, no assistance measures had been implemented. It had, admittedly, been the child welfare services that had taken the initiative to petition for adoption, but this was their duty in a case such as the present. It was better for X to be offered the firm attachment to the foster home that an adoption would give him. The municipality stressed that it was not the first applicant ’ s epilepsy or her IQ that gave reason to take measures, but her immaturity and actual lack of caring skills. The psychologist, K.M., engaged by the first applicant ( see paragraph 98 below ) should not be allowed to give evidence. He had videotaped a contact session without the parties ’ agreement; refused to send the video to the child welfare services; had never provided anything in writing, nor anything that had been quality-checked such as was the ordinary procedure for expert reports; the municipality had already reported him to the health supervision authorities and the Ethics Council of the Psychologists ’ Association.", "98. On 22 February 2012 the City Court, composed of one professional judge, one psychologist and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 133 below), upheld the decision after having held a hearing which lasted from 13 to 15 February 2012 and during which twenty-one witnesses were heard. Among the witnesses called by the child welfare services were the persons responsible for supervision of the foster home and the contact sessions, S.H. from the Children ’ s and Young People ’ s Psychiatric Out-Patient Clinic, expert psychologists B.S. and M.S. (see, inter alia, paragraphs 58, 61, 62 and 63 above) and the family consultant from the parent-child institution (see, for example, paragraph 24 above). Among the witnesses called by the first applicant were members of her family, her husband and members of his family, the medical director at the hospital where the first applicant had undergone surgery in 2005 (see paragraph 72 above) and specialist in psychology K.M. (see paragraph 97 above ). The first applicant was present together with her legal aid counsel.", "( b ) The City Court ’ s reasoning regarding whether X ’ s public care could be discontinued", "99. As a preliminary point in its judgment the City Court stated that during the hearing some time had been spent shedding light on the circumstances existing prior to the decision ordering X to be taken into care. The City Court stated that it would only examine the situation prior to the placement decision in so far as necessary to assess the situation at the time of its judgment appropriately.", "100. The City Court went on to note that the first applicant ’ s situation in some areas had improved during the last year. She had married in August 2011, her husband had a permanent job and they had a daughter, Y. It also noted that the child welfare services in the couple ’ s current municipality were conducting an ongoing inquiry concerning the mother ’ s ability to care for Y. A staff member of the child welfare services in that new municipality had testified at the oral hearing, stating that they had not received any reports of concern other than the one from the child welfare services in the first applicant ’ s former municipality. As part of their inquiry they had made observations at the first applicant ’ s home. They had observed many good aspects but also that the parents might need some help with routines and structure. The City Court found that this indicated that the child welfare services in the municipality to which the first applicant had moved considered that the parents could give Y adequate care if assisted by the child welfare services. Y was not a child with any special care needs.", "101. However, on the basis of the evidence the situation was different with regard to X, whom several experts had described as a vulnerable child. The City Court referred in particular to a statement from a professional at the Children ’ s and Young People ’ s Psychiatric Out-Patient Clinic explaining that, as late as December 2011, X was easily stressed and needed a lot of quiet, security and support. If his emotional development in the future were to be sound, the carer would have to be aware of that and take it into account. When the first applicant gave evidence in court, she had clearly shown that she did not realise what challenges she would face if X were to be moved from the foster home. She could not see his vulnerability, her primary concern being that he should grow up “where he belonged”. The first applicant believed that returning him would be unproblematic and still did not understand why the child welfare services had had to intervene when he was placed in the emergency foster home. She had not wished to say anything about how she thought X was developing in the foster home. In the City Court ’ s view, the first applicant would not be sufficiently able to see or understand X ’ s special care needs, and if those needs were not met, there would be a considerable risk of abnormal development.", "102. The City Court also took account of how the foster parents and supervisor had described X ’ s emotional reactions after contact sessions with his mother, namely, his inconsolable crying and need for a lot of sleep. During the contact sessions X had repeatedly resisted contact with the first applicant and, as the sessions had progressed, reacted with what had been described as resignation. The City Court considered that a possible reason for that was that the boy was vulnerable to inexpedient interaction and information that was not adapted to his age and functioning. The first applicant ’ s emotional outbursts in situations during the contact sessions, for example when X had sought out his foster mother and called her “Mummy”, were seen as potentially frightening ( skremmende ) and not conducive to X ’ s sound development.", "103. The City Court held that the presentation of evidence had “clearly shown” that the “fundamental limitations” ( grunnleggende begrensningene ) that had existed at the time of the High Court ’ s judgment still existed. Nothing had emerged during the City Court ’ s consideration of the case to indicate that the first applicant had developed a more positive attitude to the child welfare services or to the foster mother, beyond a statement made by her to the extent that she was willing to cooperate. She had snubbed the foster mother when she had said hello during the contact sessions and had never asked for information about X. The first applicant had left in frustration forty minutes before the last visit had been scheduled to end. Everyone who had been present during the contact sessions had described the atmosphere as unpleasant. The City Court considered that one possible reason why the first applicant ’ s competence at contact sessions had not improved was that she struggled so much with her own feelings and with missing X that it made her incapable of considering the child ’ s perspective and protecting him from her own emotional outbursts. An improvement was contingent upon her understanding X and his needs and on her being willing to work on herself and her own weaknesses. The first applicant had not shown any positive developments in her competence in contact situations throughout the three years she had had rights of contact. The fact that her parents had a remarkably negative attitude to the municipal child welfare services did not make it any easier for her.", "104. The first applicant had claimed in court that she was a victim of injustice and that she would fight until X was returned to her. To shed light on her own situation, she had chosen to post her story on the Internet in June 2011 with a photograph of herself and X. In that article and several comments posted during the autumn of 2011, she had made serious accusations against the child welfare services and the foster parents – accusations which she had admitted in court were untrue. The first applicant did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term.", "105. The City Court noted that the psychologist K.M. (see paragraphs 97-98 above), who had examined and treated the first applicant, had testified that she did not meet the criteria for any psychiatric diagnosis. He had counselled her in connection with the trauma inflicted on her by having her child taken away. The goal of the treatment had been to make the first applicant feel like a good mother. He believed that the previous assessments of the first applicant ’ s ability to provide care had at that time been incorrect, and argued before the City Court that the best outcome for X would be to be returned to his biological mother. However, the City Court stated that the psychologist K.M. ’ s arguments had been based on research conducted in the 1960s, and found them to be incompatible with recent infant research. It noted that the other experts who had testified in court, including the psychologists B.S. and M.S ., had advised against returning X to his mother, as this would be very harmful for him.", "106. In conclusion thus far, the City Court agreed with the County Social Welfare Board that the first applicant had not changed in such a way as to indicate that it was highly probable that she would be able to provide X with proper care. It endorsed the Board ’ s grounds, holding that the first applicant ’ s clear limitations as a carer could not be mitigated by an adapted transitional scheme, assistance measures or support from her network. It did not find reason to consider other arguments regarding her ability to provide care in more detail, as returning X to her was in any case not an option owing to the serious problems it would cause him to be moved from the foster home. The City Court agreed at this point with the Board in its finding that X had developed such an attachment to his foster parents, his foster brother and the general foster home environment that it would lead to serious problems if he had to move. X ’ s primary security and sense of belonging were in the foster home and he perceived the foster parents as his psychological parents. On those grounds the care order could not be revoked.", "( c ) The City Court ’ s reasoning regarding whether parental responsibilities for X should be withdrawn and consent to his adoption given", "107. Turning to the issues of withdrawal of parental responsibilities and consent to adoption, the City Court stated at the outset that where a care order had been issued, it was in principle sufficient for removal of parental responsibilities that this be in the child ’ s best interests. At the same time, it had been emphasised in several Supreme Court judgments that removal of parental responsibilities was a very invasive decision and that therefore strong reasons were required for making such a decision (see, inter alia, paragraph 125 below). The requirements in respect of adoption were even more stringent. However, the questions of withdrawal of parental responsibilities and consent to adoption had to be seen in conjunction, since the primary reason for withdrawing parental responsibilities would be to facilitate adoption. The court also took into consideration that if the first applicant retained her parental responsibilities, she might engage in conflicts in the future about the rights that such responsibility entailed, such as exposing the child on the Internet.", "108. The City Court went on to declare that adoption could only be granted if the four conditions in the third paragraph of section 4-20 of the Child Welfare Act were met (see paragraph 122 below), and endorsed the Board ’ s grounds for finding that such was the case regarding the criteria in letters (a), namely that it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, removing him could lead to serious problems for him; (c), namely that the persons applying for adoption had been X ’ s foster parents and had shown themselves fit to bring him up as their own child; and (d), namely that the conditions for granting an adoption under the Adoption Act (see paragraph 132 below) were satisfied; as to letter (d), further documents had also been submitted to the court. In the present case the decisive factor was therefore whether adoption was in X ’ s best interests under letter (b), and whether consent for adoption should be given on the basis of an overall assessment. Regarding that assessment, several Supreme Court judgments had stated that strong reasons must exist for consenting to adoption against the will of a biological parent. There must be a high degree of certainty that adoption would be in the child ’ s best interests. It was also clear that the decision must be based not only on a concrete assessment, but also on general experience from child-psychology research. Reference was made to the Supreme Court ’ s judgment in Rt. 2007, page 561 (see paragraph 125 below).", "109. Applying the general principles to the instant case, the City Court first noted that X was at that time three and a half years old and had lived in his foster home since he was three weeks old. His fundamental attachment in the social and psychological sense was to his foster parents, and it would in any event be a long-term placement. X was moreover a vulnerable child, and adoption would help to strengthen his sense of belonging with his foster parents, whom he regarded as his parents. It was particularly important to a child ’ s development to experience a secure and sound attachment to its psychological parents. Adoption would give X a sense of belonging and security in the years ahead for longer than the period a foster-home relationship would last. Practical considerations also indicated that persons who had care and control of a child and who in reality functioned as its parents should carry out the functions that derived from parental responsibilities.", "110. The City Court noted that adoption meant that the legal ties to the biological family were severed. In its opinion, X, despite spending the first three weeks of his life with his mother and having many contact sessions, had not bonded psychologically with her. That had remained the case even though he had been told at a later stage that the first applicant had given birth to him.", "111. Furthermore, the court took account of the fact that even if no further contact sessions were organised, the foster parents had taken a positive view of letting X contact his biological parent if he so wished.", "112. Based on an overall assessment, the City Court found that it would be in X ’ s best interests for the first applicant ’ s parental responsibilities to be withdrawn and for the foster parents to be allowed to adopt him. The court believed that particularly weighty reasons existed for consenting to adoption in the present case.", "113. The City Court stated, lastly, that since it had decided that X should be adopted, it was unable to decide on contact rights for the first applicant, since that question would be up to the foster parents to decide. It mentioned that section 4-20a of the Child Welfare Act provided a legal basis for determining rights to contact subsequent to adoption (see paragraph 122 below, where that provision is reiterated, and paragraph 128 below, on the “open adoption” system). The City Court was not competent, however, to examine or determine such rights since its competence was dependent on a party to the case having made a request to that effect. In the instant case, neither of the parties had done so.", "3. Proceedings before the High Court and the Supreme Court", "114. On 14 March 2012 the first applicant, through her counsel, appealed against the judgment, claiming that the City Court had evaluated the evidence incorrectly when concluding that the first applicant was permanently unable to care for X. Counsel stated that the High Court should appoint an expert to assess the first applicant ’ s husband ’ s help to mother and child, and the first applicant ’ s caring skills at the time. In response to a letter from the High Court, dated 16 March 2012, counsel also argued that the City Court should have obtained an assessment by an expert witness concerning her and her husband ’ s ability to provide adequate care.", "115. In their response, dated 26 April 2012, to the first applicant ’ s arguments that an expert assessment was necessary in the light of her new situation, the municipality stated, inter alia, that they had made several requests to be allowed to get to know the first applicant ’ s husband (see, for example, paragraph 85 above), and that the first applicant had consistently chosen to disregard those requests. Since the child welfare services responsible for X did not have any insights into the family ’ s situation in their new municipality, they could only rely on the information they had received from the child welfare services in that municipality, from which they could not infer that the first applicant could take care of X.", "116. On 12 June 2012 the first applicant, who had then instructed new counsel, submitted to the High Court a statement from the child welfare services in her new municipality. It emerged from the statement, dated 21 March 2012, that those child welfare services had visited the family five times, each time for one and a half hours. They considered that the family needed assistance in the form of guidance with respect to interaction with their baby, which they could obtain from the local “baby team” ( spedbarnsteamet ) as well as a social worker ( miljøterapeut ) in the home, who could help with routines, structure and cleanliness. The first applicant ’ s counsel also argued that the foster mother ’ s presence during the contact sessions had disturbed ( virket forstyrrende på ) their implementation.", "117. On 23 August 2012 counsel for the first applicant submitted a report from the child welfare services in the first applicant ’ s new municipality, dated 5 June 2012. In the report it was stated, inter alia, that the parents had stated early on that they would accept advice and guidance if the child welfare services so recommended. The mother had stated that she had had a bad experience with the “baby team”, but that she could accept help from them if another person on the team was appointed to be her contact. In the report it was further stated that the child welfare services considered that it had observed two parents who showed that they wanted the best for their child. The first applicant played with the child, talked to her and engaged actively with her. On the basis of all the information contained in the observations, the child welfare services considered that the parents had to work on routines, cleanliness and involvement with the child. The parents accepted that a social worker be assigned to help them in the home.", "118. In the meantime, on 22 August 2012, the High Court had decided not to grant leave to appeal because the conditions in section 36-10 of the Dispute Act (see paragraph 133 below) had not been met. The High Court stated that the case did not raise any new legal issues of importance for the uniform application of the law. With regard to whether new information had emerged, the court noted that the assessment dated 21 March 2012 had been made by, inter alia, a person who had testified before the City Court and that the document would not change the outcome of the case. The first applicant ’ s caring skills had been thoroughly examined in connection with the Board ’ s processing of the case and no new information had emerged that indicated changes in that respect. Moreover, the City Court ’ s reasons were convincing and the High Court observed that the first applicant had not asked for an expert witness to be heard in the City Court and had not given any reasons as to why it was necessary to appoint an expert before the High Court. As had just been mentioned, there was no new information that indicated any changes in her caring skills. Thus there were no serious flaws in the City Court ’ s judgment or procedure and no reasons for granting leave to appeal.", "119. On 24 September 2012 the first applicant appealed against the decision to the Supreme Court. She submitted an assessment concerning the experience of the social worker in respect of her work with the family and their care for Y (see paragraph 117 above), dated 14 August 2012. In that document it was concluded that a positive development had started and that the social worker should continue to assist the family. The first applicant argued that the City Court had relied more on older documents than on the circumstances at the time of its judgment and had disregarded the fact that its judgment would have the effect of depriving Y of contact with X. She further repeated her argument that the foster mother ’ s presence had disturbed the contact sessions (see paragraph 116 above) and maintained that the child welfare services had not properly organised the sessions.", "120. In its reply of 4 October 2012 the municipality stated, inter alia, that it was positive that the first applicant and her husband had managed to avail themselves of the guidance received from the social worker, but that X was a vulnerable child whereas Y did not face similar challenges. As to the first applicant ’ s argument that the City Court had not based its decision on the circumstances at the time of its judgment, the municipality pointed to the fact that five out of the eight witnesses they had called, and all the witnesses called by the first applicant, had given evidence before the City Court on the circumstances as they were at that time. They further stated that Y would not be deprived of contact with X as long as the first applicant accepted X ’ s foster home and contributed to making it a good experience for the children. As to Y ’ s father, it was argued that it had emerged from his testimony before the Board and City Court that he knew little about X ’ s placement in care and about the challenges surrounding the contact sessions. The municipality also submitted that they would argue before the Supreme Court that X ’ s right to respect for his family life was also protected by Article 8 of the Convention and that his need for stability in the foster home and good care would be best ensured if he were adopted.", "121. On 15 October 2012 the Supreme Court Appeals Board ( Høyesteretts ankeutvalg ) dismissed the first applicant ’ s appeal against the High Court ’ s decision." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Child Welfare Act", "122. The relevant sections of the Child Welfare Act of 17 July 1992 ( barnevernloven ) provide :", "Section 4-1. Consideration of the child ’ s best interests", "“When applying the provisions of this chapter, decisive importance shall be attached to finding measures which are in the child ’ s best interests.", "This includes attaching importance to giving the child stable and good contact with adults and continuity in the care provided.”", "Section 4-6. Interim orders in emergencies", "“If a child is without care because the parents are ill or for other reasons, the child welfare services shall implement such assistance as is immediately required. Such measures shall not be maintained against the will of the parents.", "If there is a risk that a child will suffer material harm by remaining at home, the head of the child welfare administration or the prosecuting authority may immediately make an interim care order without the consent of the parents.", "In such a case the head of the child welfare administration may also make an interim order under section 4-19.", "If an order has been made under the second paragraph, an application for measures as mentioned in section 7-11 shall be sent to the county social welfare board as soon as possible, and within six weeks at the latest, but within two weeks if it is a matter of measures under section 4-24.", "If the matter has not been sent to the county social welfare board within the time-limits mentioned in the fourth paragraph, the order shall lapse.”", "Section 4-12. Care orders", "“A care order may be issued", "(a) if there are serious deficiencies in the daily care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development,", "(b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required,", "(c) if the child is mistreated or subjected to other serious abuse at home, or", "(d) if it is highly probable that the child ’ s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child.", "An order may only be made under the first paragraph when necessary due to the child ’ s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by assistance measures under section 4-4 or by measures under section 4-10 or section 4-11.", "An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7.”", "Section 4-19. Contact rights. Secret address", "“Unless otherwise provided, children and parents are entitled to have contact with each other.", "When a care order has been made, the county social welfare board shall determine the extent of contact, but may, for the sake of the child, also decide that there should be no contact. The county social welfare board may also decide that the parents should not be entitled to know the child ’ s whereabouts.", "...", "The private parties cannot request that a case regarding contact be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months.", "...”", "Section 4-20. Withdrawal of parental responsibilities. Adoption", "“If the county social welfare board has made a care order for a child, it may also decide that the parents must be stripped of all parental responsibilities. If, as a result of the parents being stripped of parental responsibilities, the child is left without a guardian, the county social welfare board shall as soon as possible take steps to have a new guardian appointed for the child.", "Where an order has been made withdrawing parental responsibilities, the county social welfare board may give its consent for a child to be adopted by persons other than the parents.", "Consent may be given if", "(a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and", "(b) adoption would be in the child ’ s best interests, and", "(c) the persons applying for adoption have been the child ’ s foster parents and have shown themselves fit to bring up the child as their own, and", "(d) the conditions for granting an adoption under the Adoption Act are satisfied.", "Where the county social welfare board consents to adoption, the Ministry [ of Children and Equality] shall issue an adoption order.”", "Section 4-20a. Contact between the child and his or her biological parents after adoption [added in 2010]", "“Where the county social welfare board issues an adoption order under section 4-20, it shall, if any of the parties have requested it, at the same time consider whether there shall be contact between the child and his or her biological parents after the adoption has been carried out. If limited contact after adoption in such cases is in the child ’ s best interests, and the persons applying for adoption consent to such contact, the county social welfare board shall make an order for such contact. In such case, the county social welfare board must at the same time determine the amount of contact.", "...", "A contact order may only be reviewed if special reasons justify doing so. Special reasons may include the child ’ s opposition to contact or the biological parents ’ failure to comply with the contact order.", "...”", "Section 4-21. Revocation of care orders", "“The county social welfare board shall revoke a care order where it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child ’ s foster parents shall be entitled to state their opinion.", "The parties may not request that a case concerning revocation of a care order be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a request for revocation of the previous order or judgment was not upheld with reference to section 4-21, first paragraph, second sentence, new proceedings may only be requested where documentary evidence is provided to show that significant changes have taken place in the child ’ s situation.”", "Section 7-5. The board ’ s composition in individual cases", "“In individual cases, the county social welfare board shall consist of a chairman/chairwoman, one member of the ordinary committee and one member of the expert committee. When necessary due to the complexity of the case, the chairman/chairwoman may decide that the board, in addition to the chairman/chairwoman, shall consist of two members of the ordinary committee and two members of the expert committee.", "If the parties consent thereto, the chairman/chairwoman may decide cases as mentioned in the first paragraph alone unless this is precluded by due regard for the satisfactory hearing of the case.", "Where the case concerns a request for an alteration in a previous decision/order or judgment, the chairman/chairwoman may decide the case alone if this is unobjectionable with due regard for the subject of the case, its complexity, the need for professional expertise, and a proper hearing of the case.", "Where the case concerns an extension of a placement order made by the county social welfare board under section 4-29, the chairman/chairwoman shall decide the case alone.”", "B. Case-law under the Child Welfare Act", "123. The Supreme Court has delivered several judgments on the Child Welfare Act. Of relevance in the present context is its judgment of 23 May 1991 ( Rt. 1991, page 557), in which the Supreme Court stated that since withdrawal of parental responsibilities with a view to adoption involves permanently severing the legal ties between the child and its biological parents and other relatives, strong reasons have to be present in order for a decision of that sort to be taken. It emphasised, moreover, that a decision to withdraw parental responsibilities must not be taken without first having carried out a thorough examination and consideration of the long-term consequences of alternative measures, based on the concrete circumstances of each case.", "124. In a later judgment, of 10 January 2001 ( Rt. 2001, page 14), the Supreme Court considered that the legal criterion “strong reasons” in this context should be interpreted in line with the Court ’ s case-law, in particular Johansen v. Norway, no. 17383/90, § 78, 7 August 1996. This meant, according to the Supreme Court, that consent to adoption contrary to the wish of the biological parents could only be given in “extraordinary circumstances”.", "125. The above case-law was developed further, inter alia, in the Supreme Court ’ s judgment of 20 April 2007 ( Rt. 2007, page 561), after the Court had declared a second application by the applicant in the above ‑ mentioned case of Johansen v. Norway inadmissible (see Johansen v. Norway ( dec. ), 12750/02, 10 October 2002). The Supreme Court reiterated that the requirement that adoption be in the child ’ s best interests, as set out in section 4-20 of the Child Welfare Act (see paragraph 122 above), meant that “strong reasons” ( sterke grunner ) must be present in order for consent to adoption to be given contrary to the wish of the biological parents. In addition, the Supreme Court emphasised that a decision of this kind had to be based on the concrete circumstances of each case, but also take account of general experience, including experience from research into child psychology or child psychiatry. The Supreme Court examined the general principles in the case-law of the Strasbourg Court and concluded that the domestic law was in conformity with those principles: an adoption could only be authorised where “particularly weighty reasons” were present. That case was subsequently brought before the Court, which found no violation of Article 8 of the Convention (see Aune, cited above, § 37, for a recapitulation of the Supreme Court ’ s analysis of the general principles developed in the case-law of the Supreme Court and the Court).", "126. The Supreme Court again set out the general principles applicable to adoption cases in a judgment of 30 January 2015 ( Rt. 2015, page 110). It reiterated that forced adoptions had a severe impact and generally inflicted profound emotional pain on the parents. Family ties were protected by Article 8 of the Convention and Article 102 of the Constitution. Adoption was also an intrusive measure for the child and could, under Article 21 of the Convention on the Rights of the Child (see paragraph 134 below), accordingly only be decided when in his or her best interests. However, where there were decisive factors from the child ’ s point of view in favour of adoption, the parents ’ interests would have to yield, as had been provided for in Article 104 of the Constitution and Article 3 § 1 of the Convention on the Rights of the Child (ibid.). Reference was made to Aune, cited above, § 66, where the Court had stated that an adoption could only be authorised where justified by “an overriding requirement pertaining to the child ’ s best interests”, which corresponded to the standard of “particularly weighty reasons” as established by the Supreme Court in the judgment that had been scrutinised by the European Court of Human Rights in Aune (see paragraph 125 above).", "127. Parliament had examined, and a majority had supported, a proposal from the Government ( Ot.prp. no. 69 (2008-2009)) discussing the issue of a considerable decline in adoptions in Norway. In the proposal it had been suggested that the child welfare services had developed a reluctance to propose adoptions in the aftermath of the Court ’ s finding of a violation in Johansen, cited above, even though research had shown that it was in a child ’ s best interests to be adopted rather than experience a continuous life in foster care until reaching their majority. The Supreme Court interpreted the proposal as emphasising that the child welfare services should ensure that adoption would actually be proposed where appropriate, but that the proposal did not imply that the legal threshold, under Article 8 of the Convention, had changed. The Supreme Court added that the general information obtained from research on adoption was relevant to the concrete assessment of whether an adoption should be authorised in an individual case.", "128. The Supreme Court also examined the implication of amendments of the rules concerning contact between the child and the biological parents, which had been coined as an “open adoption” in the above proposal. The rules had been incorporated into section 4-20a of the Child Welfare Act, which had been in force since 2010. They required that an “open adoption” be in the child ’ s best interests and that the adoptive parents consent (see paragraph 122 above). It observed that the legislature ’ s reasons for introducing the system of “open adoptions” had been to secure the child stable and predictable surroundings in which to grow up, while at the same time ensuring some contact with its biological parents where this would be in the child ’ s best interests. The child would thus have all the benefits of the adoption, while still having contact with its biological parents. The Supreme Court found that the introduction of the system of “open adoptions” had not meant that the legal threshold for authorising adoptions had been lowered. However, in some cases further contact between the child and the biological parents could mitigate some of the arguments against adoption. Reference was made to Aune, cited above, § 78.", "129. The Supreme Court considered anew the general principles concerning adoption in a judgment of 11 September 2018. The Supreme Court observed, inter alia, that the European Court of Human Rights, in the case of Mohamed Hasan v. Norway, no. 27496/15, § 148, 26 April 2018, had stressed the strict procedural requirements that must be met by the domestic decision-making authorities in cases concerning adoption. When summarising the subject of its review, the Supreme Court stated that the best interests of the child were the most important and weighty concerns when deciding the adoption issue. As adoption was such a radical and irreversible measure, it could only be justified – from the child ’ s point of view – by particularly weighty reasons. These grounds had to be balanced against the consequences of adoption for the child ’ s contact with its biological parents in the individual case. Where there had been little or no contact between the parents and the child, the concern for protection of their family life would be given less weight than in cases where a more normal family life had existed.", "130. The current position in respect of knowledge and research on adopted children had been studied by a court-appointed expert and presented in an appendix to his statement to the Supreme Court. The expert believed that the summary in the Supreme Court ’ s judgment of 20 April 2007 ( Rt. 2007, page 561; see paragraph 125 above) was still accurate. Based on an updated study of relevant research and professional experience as a psychologist, the expert had stated the following in the case at hand:", "“ Children in long-term foster care who are adopted undergo better psychosocial development than children in a similar situation who are not adopted. It is the durability of the child ’ s sense of belonging that seems to be essential.”", "131. The expert had specified in his statement before the Supreme Court that this was a difficult area of research, one of the reasons being that few forced adoptions were carried out annually in Norway. And, as had been emphasised in the Supreme Court ’ s judgment of 20 April 2007 ( Rt. 2007 page 561; see paragraph 125 above), a specific, individual assessment had to be made in each case. But, as emphasised in the same judgment, such a research- and experienced-based perception of what was generally best for the child, had to be given particular weight. Also, the abovementioned (see paragraph 127 ) proposal from the Government ( Ot.prp. no. 69 (2008-2009) ) had stressed that research showed that “ ... for some children, adoption may give a safer and more predictable upbringing than long-term foster care”.", "C. The Adoption Act", "132. The Adoption Act of 28 February 1986, in force at the relevant time, contained the following relevant provisions:", "Section 2", "“An adoption order must only be issued where it can be assumed that the adoption will be to the benefit of the child [( til gagn for barnet )]. It is further required that the person applying for adoption either wishes to foster or has fostered the child, or that there is another special reason for the adoption.”", "Section 12", "“Adoptive parents shall, as soon as is advisable, tell the adopted child that he or she is adopted.", "When the child has reached 18 years of age, he or she is entitled to be informed by the Ministry [ of Children and Equality] of the identity of his or her biological parents.”", "Section 13", "“On adoption, the adopted child and his or her heirs shall have the same legal status as if the adopted child had been the adoptive parents ’ biological child, unless otherwise provided by section 14 or another statute. At the same time, the child ’ s legal relationship to his or her original family shall cease, unless otherwise provided by special statute.", "Where one spouse has adopted a child of the other spouse or cohabitant, the said child shall have the same legal status in relation to both spouses as if he or she were their joint child. The same applies to children adopted pursuant to section 5 b, second, third and fourth paragraphs.”", "Section 14 a. Contact after adoption", "“In the case of adoptions carried out as a result of decisions pursuant to section 4-20 of the Child Welfare Act, the effects of the adoption that follow from section 13 of the present Act shall apply, subject to any limitations that may have been imposed by a decision pursuant to section 4-20 a of the Child Welfare Act regarding contact between the child and his or her biological parents.”", "D. The Dispute Act", "133. The first paragraph of section 36-4 and the third paragraph of section 36-10 of the Dispute Act of 17 June 2005 ( tvisteloven ) read:", "Section 36-4 The composition of the court. Expert panel", "“(1) The district court shall sit with two lay judges, one of whom shall be an ordinary lay judge and the other an expert. In special cases, the court may sit with two professional judges and three lay judges, one or two of whom shall be experts.”", "Section 36-10 Appeal", "“(3) An appeal against the judgment of the district court in cases concerning the County Board ’ s decisions pursuant to the Child Welfare Act requires the leave of the court of appeal.", "Leave can only be granted if", "a) the appeal concerns issues whose significance extends beyond the scope of the current case,", "b) there are grounds to rehear the case because new information has emerged,", "c) the ruling of the district court or the procedure in the district court is seriously flawed [( vesentlige svakheter ved tingrettens avgjørelse eller saksbehandling )], or", "d) the judgment provides for coercive measures that were not approved by the County Board.”", "III. RELEVANT INTERNATIONAL LAW MATERIALS", "A. The United Nations", "134. The United Nations Convention on the Rights of the Child, concluded in New York on 20 November 1989, contains, inter alia, the following provisions:", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”", "Article 9", "“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence.", "2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.", "3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests.", "4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.”", "Article 18", "“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.", "2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.", "3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.”", "Article 20", "“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.", "2. States Parties shall in accordance with their national laws ensure alternative care for such a child.", "3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child ’ s upbringing and to the child ’ s ethnic, religious, cultural and linguistic background.”", "Article 21", "“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:", "(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;", "...”", "135. In its General Comment no. 7 (2005) on implementing child rights in early childhood, the United Nations Committee on the Rights of the Child sought to encourage the States Parties to recognise that young children were holders of all rights enshrined in the Convention on the Rights of the Child and that early childhood was a critical period for the realisation of those rights. In particular, the Committee referred to the best interests of the child:", "“13. Article 3 sets out the principle that the best interests of the child are a primary consideration in all actions concerning children. By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well-being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have day-to-day responsibility for realizing children ’ s rights:", "(a) Best interests of individual children. All decision-making concerning a child ’ s care, health, education, etc. must take account of the best interests principle, including decisions by parents, professionals and others responsible for children. States parties are urged to make provisions for young children to be represented independently in all legal proceedings by someone who acts for the child ’ s interests, and for children to be heard in all cases where they are capable of expressing their opinions or preferences.”", "136. The United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, mentions the following as elements “to be taken into account when assessing the child ’ s best interests” :", "“(a) The child ’ s views", "...", "(b) The child ’ s identity", "...", "(c) Preservation of the family environment and maintaining relations", "...", "(d) Care, protection and safety of the child", "...", "(e) Situation of vulnerability", "...", "(f) The child ’ s right to health", "...", "(g) The child ’ s right to education", "... ”", "Under the headings “Balancing the elements in the best-interests assessment” and “Procedural safeguards to guarantee the implementation of the child ’ s best interests”, inter alia, the following is included:", "“84. In the best-interests assessment, one has to consider that the capacities of the child will evolve. Decision-makers should therefore consider measures that can be revised or adjusted accordingly, instead of making definitive and irreversible decisions. To do this, they should not only assess the physical, emotional, educational and other needs at the specific moment of the decision, but should also consider the possible scenarios of the child ’ s development, and analyse them in the short and long term. In this context, decisions should assess continuity and stability of the child ’ s present and future situation.", "...", "85. To ensure the correct implementation of the child ’ s right to have his or her best interests taken as a primary consideration, some child-friendly procedural safeguards must be put in place and followed. As such, the concept of the child ’ s best interests is a rule of procedure ....", "...", "87. States must put in place formal processes, with strict procedural safeguards, designed to assess and determine the child ’ s best interests for decisions affecting the child, including mechanisms for evaluating the results. States must develop transparent and objective processes for all decisions made by legislators, judges or administrative authorities, especially in areas which directly affect the child or children.”", "B. The Council of Europe", "137. The Council of Europe ’ s Revised Convention on the Adoption of Children of 27 November 2008 contains, inter alia, the following provisions:", "Article 3 – Validity of an adoption", "“An adoption shall be valid only if it is granted by a court or an administrative authority (hereinafter the ‘ competent authority ’ ).”", "Article 4 – Granting of an adoption", "“1. The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the best interests of the child.", "2. In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home.”", "Article 5 – Consents to an adoption", "“1. Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:", "a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;", "b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;", "c the consent of the spouse or registered partner of the adopter.", "2. The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.", "3. The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.", "4. If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.", "5. A mother ’ s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.", "6. For the purposes of this Convention ‘ father ’ and ‘ mother ’ mean the persons who according to law are the parents of the child.”", "138. The Council of Europe ’ s Parliamentary Assembly adopted Resolution 2049 on 22 April 2015. The Resolution includes, inter alia, the following:", "“5. Financial and material poverty should never be the only justification for the removal of a child from parental care, but should be seen as a sign for the need to provide appropriate support to the family. Moreover, showing that a child could be placed in a more beneficial environment for his or her upbringing is not enough to remove a child from his or her parents, and even less of a reason to sever family ties completely.", "...", "8. The Assembly thus recommends that member States:", "...", "8.2. put into place laws, regulations and procedures which truly put the best interest of the child first in removal, placement and reunification decisions;", "8.3. continue and strengthen their efforts to ensure that all relevant procedures are conducted in a child-friendly manner, and that the children concerned have their views taken into account according to their age and level of maturity;", "8.4. make visible and root out the influence of prejudice and discrimination in removal decisions, including by appropriately training all professionals involved;", "8.5. support families with the necessary means (including financially, materially, socially and psychologically) in order to avoid unwarranted removal decisions in the first place, and in order to increase the percentage of successful family reunifications after care;", "8.6. ensure that any (temporary) placement of a child in alternative care, where it has become necessary as a measure of last resort, be accompanied by measures aimed at the child ’ s subsequent reintegration into the family, including the facilitation of appropriate contact between the child and his or her family, and be subject to periodic review;", "8.7. avoid, except in exceptional circumstances provided for in law and subject to effective (timely and comprehensive) judicial review, severing family ties completely, removing children from parental care at birth, basing placement decisions on the effluxion of time, and having recourse to adoptions without parental consent;", "8.8. ensure that the personnel involved in removal and placement decisions are guided by appropriate criteria and standards (if possible in a multidisciplinary way), are suitably qualified and regularly trained, have sufficient resources to take decisions in an appropriate time frame, and are not overburdened with too great a caseload;", "...", "8.10. ensure that, except in urgent cases, initial removal decisions are based only on court orders, in order to avoid unwarranted removal decisions and to prevent biased assessments.”", "139. The Council of Europe ’ s Parliamentary Assembly adopted Resolution 2232 (“Striking a balance between the best interest of the child and the need to keep families together”) on 28 June 2018. The Resolution states, inter alia :", "“4. The Assembly reaffirms that the best interest of the child should be a primary consideration in all actions concerning children, in accordance with the United Nations Convention on the Rights of the Child. However, the implementation of this principle in practice depends on the context and the specific circumstances. It is sometimes easier to say what is not in the best interests of children: coming to serious harm at the hands of their parents, or being removed from a family without good cause.", "5. It is with this caveat in mind that the Assembly reiterates the recommendations it made in Resolution 2049 (2015) and recommends that Council of Europe member States focus on the process in order to achieve the best results for children and their families alike. Member States should:", "...", "5.2. give the necessary support to families in a timely and positive manner with a view to avoiding the necessity for removal decisions in the first place, and to facilitating family reunification when possible and in the child ’ s best interest: this includes the need to build better collaboration with parents, with a view to avoiding possible mistakes based on misunderstandings, stereotyping and discrimination, mistakes which can be difficult to correct later on once the trust has gone;", "...", "5.5. seek to keep at a minimum the practices of removing children from parental care at birth, basing placement decisions on the effluxion of time, and adoptions without parental consent, and only in extreme cases. Where in the child ’ s best interests, efforts should be made to maintain family ties;", "5.6. where the decision to remove a child from their family has been made, ensure that:", "5.6.1. such decisions are a proportionate response to a credible and verified assessment by competent authorities subject to judicial review that there is a real risk of actual and serious harm to the children involved;", "5.6.2. a detailed decision is provided to the parents and a copy of the decision is also retained, that the decision is explained in an age-appropriate way to the child or that the child is otherwise granted access to the decision, and that the determination outlines the circumstances that led to the decision and provides reasons for the removal;", "5.6.3. removing children is a last resort and should be done only for the necessary period of time;", "5.6.4. siblings are kept together in care in all cases where it is not against the best interest of the child;", "5.6.5. as long as it is in the best interest of the child, children are cared for within the wider family unit so as to minimise the disruption of family bonds for the children involved;", "5.6.6. regular consideration is given to family reunification and/or family access as is appropriate taking into account the best interests and views of the child;", "5.6.7. visitation and contact arrangements facilitate the maintenance of the family bond and work towards reunification unless manifestly inappropriate;”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "140. The applicants complained that the refusal to discontinue the public care of X and the deprivation of the first applicant ’ s parental responsibilities for him and the authorisation granted to his foster parents to adopt him had violated their right to respect for family life as guaranteed by Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "141. The Government contested that submission.", "A. Preliminary issues before the Grand Chamber", "1. Scope of the case before the Grand Chamber", "(a) Temporal scope", "( i ) The parties ’ submissions", "142. The Government maintained that it fell outside the Grand Chamber ’ s jurisdiction to consider whether the domestic proceedings relating to the taking into care of X and the first applicant ’ s contact rights –prior to those relating to the authorisation of adoption – had complied with Article 8 of the Convention. Contrary to the requirements in Article 35 § 1 of the Convention, the applicants had failed to exhaust domestic remedies and to comply with the six - month time-limit with respect to the emergency care order of 17 October 2008, the care order of 2 March 2009 and the decisions on contact rights. In any event, the application to the Court of 12 April 2013 had been directed only at the measures upheld by the Supreme Court decision of 15 October 2012, that is, the removal of parental responsibilities and authorisation of adoption. The Chamber minority had overstepped the Court ’ s competence and disregarded the scope of the applicants ’ application in order to voice abstract criticism against an entire child welfare system. It was not open to the applicants to expand the case through their referral request to the Grand Chamber. While the latter could have regard to prior proceedings, this was only to the extent that they had been referred to and relied upon in the decision relating to the removal of parental responsibilities and the authorisation of adoption.", "143. Disagreeing with the Government ’ s position, the applicants submitted that the Grand Chamber had competence to examine not only the removal of parental responsibilities and the authorisation of adoption but also the initial emergency decisions, the decisions relating to X ’ s being taken into public care and those relating to the first applicant ’ s contact rights. Its jurisdiction comprised the entirety of the domestic proceedings – even if it were ultimately to find a violation only in respect of a part of these. The consent to adoption had to be considered as the final decision in a sequence of events that had started with the emergency decision. The decision to remove parental responsibilities and to authorise adoption had been a consequence of the lack of attachment between X and the first applicant, which in turn had been a direct result of the decisions of 2 March 2009 and 22 April 2010 on long-term public care, in which the first applicant ’ s contact rights had been considerably and unjustifiably reduced.", "(ii) The Court ’ s considerations", "144. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber ’ s decision on admissibility. This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber (see, for example, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018). In the present case, the Grand Chamber notes that the Chamber declared admissible the complaint lodged by the applicants (see paragraph 2 above), which concerned the deprivation of parental responsibilities and authorisation of adoption first decided by the County Social Welfare Board on 8 December 2011 and then upheld on appeal (see, inter alia, paragraphs 3, 76, 93, 94 and 111 of the Chamber ’ s judgment).", "145. The Grand Chamber observes that X was taken into emergency foster care in 2008 (see paragraphs 20-22 above) and into ordinary foster care following the decision of the County Social Welfare Board of 2 March 2009 (see paragraphs 38-46 above). In the same decision the first applicant was granted limited contact rights (see paragraphs 42 - 46 above). She appealed against that decision, which was ultimately upheld by the High Court in its judgment of 22 April 2010 (see paragraphs 65-75 above), again granting the first applicant limited contact rights (see paragraph 75 above). As the applicant did not avail herself of the possibility of lodging an appeal, the High Court ’ s judgment became final on the expiry of the time ‑ limit for doing so.", "146. In their request for referral to the Grand Chamber, the applicants sought to expand their complaints to encompass also the above proceedings from 2008 to 2010. These grievances did not, however, form part of their application as it was declared admissible by the Chamber. They were in any event filed for the first time before the Grand Chamber more than six months after the last domestic decisions taken in the proceedings in question and, as mentioned above (see paragraph 145), without domestic remedies having been exhausted in the most recent of these.", "147. Consequently, the Court does not have jurisdiction to review the compatibility with Article 8 of the Convention of the proceedings, including those relating to the restrictions on contact rights, that predated or ended with the High Court ’ s judgment of 22 April 2010 (see paragraph 76 above).", "148. Nonetheless, in its review of the proceedings relating to the County Social Welfare Board ’ s decision of 8 December 2011 and the decisions taken on appeal against that decision, notably the City Court ’ s judgment of 22 February 2012, the Court will have to put those proceedings and decisions in context, which inevitably means that it must to some degree have regard to the former proceedings and decisions (see, similarly, for example, Jovanovic v. Sweden, no. 10592/12, § 73, 22 October 2015, and Mohamed Hasan, cited above, § 151).", "(b) Material scope", "149. The Court observes that the applicants ’ application lodged with the Court on 12 April 2013 expressly targeted only the decision to withdraw the first applicant ’ s parental responsibilities in respect of X and to authorise the latter ’ s adoption by his foster parents (see the City Court ’ s decision in paragraphs 107-12 above), not the concurrent conclusion reached on the same occasion that the conditions for lifting the care order concerning X had not been met (see paragraphs 99-106 above).", "150. The Chamber considered that the decision not to lift the care order was nonetheless intrinsically related to the decision to deprive the first applicant of her parental responsibilities for X and to authorise the latter ’ s adoption, and accordingly reviewed the former decision on the merits (see paragraphs 113 - 17 of the Chamber ’ s judgment) regardless of the applicants ’ having focused expressly on the latter decision in their application and submissions before the Chamber.", "151. The Grand Chamber notes that, while the respondent Government did not express disagreement with the Chamber ’ s approach in this regard, the applicants made submissions before it indicating that their complaint also encompassed the decision not to lift the care order taken in the same proceedings.", "152. The Grand Chamber observes that the refusal to lift the public care order is so closely related to and intertwined with the decision to remove the first applicant ’ s parental responsibilities and to authorise adoption that it must be considered to be an aspect of her initial complaint to the Court. Indeed, as follows from the terms of section 4-20 of the Child Welfare Act (see paragraph 122 above), it was a prerequisite for application of that provision that public care continued to be justified. The Grand Chamber will therefore, as was done by the Chamber, include the decision not to lift the care order in its examination of whether the applicants ’ Article 8 rights have been violated.", "2. The first applicant ’ s standing to lodge a complaint on behalf of the second applicant", "(a) The Chamber ’ s judgment", "153. The Chamber, emphasising that the complaint concerned the decision to deprive the first applicant of her parental responsibilities for X and to authorise his adoption – which resulted in the former losing legal guardianship over X – rather than facts subsequent to that decision, concluded that the first applicant was competent to lodge a complaint on behalf of the second applicant, X.", "(b ) The parties ’ submissions", "154. By way of preliminary objection before the Grand Chamber, the Government argued that the first applicant did not have standing to lodge an application on behalf of X. His adoptive parents would have had standing, but had not done so. The Court ’ s acceptance of the mother ’ s lodging of an application on her child ’ s behalf in Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000 ‑ VIII, had been due to the particular circumstances of that case. In the instant case X ’ s interests were also represented by his adoptive parents, who had intervened before the Court.", "155. The applicants submitted that, according to the Court ’ s established case law, a biological parent whose parental responsibilities had been withdrawn could submit a complaint against that withdrawal on behalf of the child in question. The first applicant accordingly had an unquestionable right to represent X in the instant case.", "( c ) The Court ’ s considerations", "156. The Court observes that the disputed deprivation of parental responsibilities and the authorisation of adoption decided by the County Social Welfare Board on 8 December 2011 and upheld by the City Court on 22 February 2012, against which leave to appeal was refused by the appellate courts, undoubtedly led to the severance of the legal ties between the first and second applicants. The Court has held that this factor is not decisive for whether a parent may have locus standi to lodge an application on behalf of the child before the Court (see, for example, A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013). In that judgment, the Court further stated:", "“ ... The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142).", "47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom ( dec. ), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided” ( ibid., § 46-47).", "157. Since X was adopted, his only representatives under national law in respect of any issues concerning facts that occurred after the adoption had become final would be his adoptive parents. However, in respect of the adoption proceedings, conducted at a time when the first applicant still had full responsibilities for X, according to the Court ’ s case-law, it is in principle in a child ’ s interests to preserve family ties, save where weighty reasons exist to justify severing those ties (see, for example, A.K. and L. v. Croatia, cited above, § 49 ). In addition, on several occasions the Court has accepted in the context of Article 8 of the Convention that parents who did not have parental rights could apply to it on behalf of their minor children (see Scozzari and Giunta, cited above, §§ 138 ‑ 39 ), the key criterion for the Court in these cases being the risk that some of the children ’ s interests might not be brought to its attention and that they would be denied effective protection of their Convention rights (see mutatis mutandis, Lambert and Others v. France [GC], no. 46043/14, § 9 4, ECHR 2015 (extracts) ).", "158. Where an application has been lodged before it by a biological parent on behalf of his or her child, the situation may nonetheless be that the Court identifies conflicting interests between parent and child. A conflict of interest is relevant to the question of whether an application lodged by one person on behalf of another is admissible (see, for example, Kruškić v. Croatia ( dec. ), no. 10140/13, §§ 101- 02, 25 November 2014). The Government have objected on such grounds in the instant case.", "159. The Court considers that the question of a possible conflict of interest between the first and second applicants overlaps and is closely intertwined with those which it is called upon to examine when dealing with the complaint, formulated by the first applicant on her own behalf and on behalf of the second applicant, of violations of their right to respect for family life under Article 8. It discerns no such conflict of interest in the present case as would require it to dismiss the first applicant ’ s application on behalf of the second applicant. Accordingly, the Government ’ s objection must be dismissed.", "B. Merits", "1. The Chamber ’ s judgment", "160. The Chamber was satisfied that the domestic proceedings complained of were in accordance with 1992 Child Welfare Act and pursued the legitimate aims of “the protection of health or morals” and the “rights and freedoms” of X in accordance with Article 8 § 2 of the Convention. As to the further question whether the disputed interference was also “necessary”, the Chamber considered that the first applicant had been fully involved in the domestic proceedings, seen as a whole, and that the domestic decision-making process had been fair and capable of safeguarding the applicants ’ rights under Article 8. The majority of the Chamber further observed that the City Court had been faced with the difficult and sensitive task of striking a fair balance between the relevant competing interests in a complex case. In the majority ’ s view, the City Court had clearly been guided by the interests of X, notably his particular need for security in his foster-home environment, given his psychological vulnerability. Also taking into account the City Court ’ s conclusion that there had been no positive development in the first applicant ’ s competence in contact situations throughout the three years in which she had had contact rights and the fact that the domestic authorities had had the benefit of direct contact with all the persons concerned, the majority of the Chamber found that there were such exceptional circumstances in the present case as could justify the measures in question and that the domestic authorities had been motivated by an overriding requirement pertaining to X ’ s best interests.", "2. The parties ’ submissions", "(a) The applicants", "161. The applicants submitted that in its judgment the Chamber had failed to take account of the particular context concerning Norway, namely that there was widespread criticism both nationally and internationally of the Norwegian child welfare system, indicating a serious systemic problem.", "162. Under the Court ’ s case-law, the margin - of - appreciation concept was, in the applicants ’ opinion, characterised by its casuistic nature. The margin to be accorded to the competent national authorities would vary in the light of the nature of the issues and the seriousness of the interests at stake. It was well established that in cases relating to placement of children in public care and adoption, the domestic authorities enjoyed a wide margin of appreciation. However, the Court tended to hide behind the margin - of - appreciation concept in a way which could to some extent undermine its control and functions.", "163. Given the nature and seriousness of the interference at stake, the margin of appreciation ought to have been particularly narrow even in regard to the first child - welfare measures that had been taken. The Chamber majority had, moreover, not addressed the grounds for the extremely limited contact rights that had been granted from the beginning.", "164. It was clearly established in the Court ’ s case-law that the protection of the biological family was a priority. The instant case concerned a very young child; in such cases the authorities could act only on extraordinarily compelling grounds. X ’ s particular vulnerability referred to by the domestic authorities in their decisions had never been supported by concrete and tangible evidence. Nor had his special care needs ever been explained, as pointed out by the minority in the Chamber.", "165. Contact rights in Norway were notably restrictive and had been denounced by the Court in several cases. Considering that limited contact rights had a particularly detrimental impact in the first weeks, months and years of an infant ’ s life, the facts of the instant case were particularly shocking. The first applicant ’ s contact rights had been drastically limited without objective reasons and over a very short space of time. The imposition of extremely restricted access rights had destroyed any chance of family reunification and had made it impossible for X to forge natural bonds with the first applicant. Since the domestic authorities were directly responsible for the family breakdown, the argument that X had had no psychological bonds with his mother was unacceptable.", "166. There had been a conflict between the first applicant, the foster mother and the child welfare services; a conflict of that nature was hardly exceptional and was readily understandable. The authorities had done absolutely nothing to pacify the first applicant ’ s relations with the authorities and the foster mother. On the contrary, the foster mother had been present during all contact sessions, even though this had not been ordered or permitted by any of the domestic decisions. The positive obligation incumbent on the authorities under Article 8 of the Convention required that they proposed altering the terms of the contact rights or took decisions to that effect. The County Social Welfare Board and the City Court had focused only on the short-term consequences of a separation of X from his foster parents and had failed to consider the long-term impact on him of a permanent separation from his biological mother. The domestic authorities should have resorted to less intrusive measures.", "167. The domestic authorities had not dealt with the case in good faith, quite the contrary. The alleged lack of caring skills on the part of the first applicant was firmly contradicted by the case-material. She could not be blamed for having asked the same questions several times when at the parent-child institution, and the institution ’ s staff had threatened her with taking X into public care. While the expert reports contained global formulas such as “a severe lack of the abilities that are required in the mothering role”, “problems with emotional regulation” and “inadequate basic parent skills”, these had not been substantiated. There had been no concrete and tangible evidence to justify the alleged fundamental limitations of the first applicant and her caring skills.", "168. Old and new research on infant attachment suggested that the domestic authorities had failed to abide by basic and fundamental attachment principles to support reunification. They had not proved that returning X to the first applicant would cause him serious problems.", "(b) The Government", "169. Overall, the Government invited the Grand Chamber to follow the approach of the Chamber majority, which had been correct and exemplary both in interpretation and application of Convention law. In contrast, they cautioned against the Chamber minority ’ s attempt to carry out a “forensic examination of the facts” : reassessing facts that had been established by the national courts many years ago risked making the review arbitrary and was contrary to the Court ’ s fourth - instance doctrine.", "170. The Government argued that the domestic decision-making process had been fair and capable of safeguarding the applicants ’ rights under Article 8 of the Convention. The case had been reviewed independently and impartially by several levels of court.", "171. The child ’ s best interests, which had changed over time, were paramount. The first applicant sought to assert her right to family life, but although she had submitted a claim that had to be assessed under Article 8 of the Convention, it was in essence not so much a claim for the protection of existing “family life”, as an assertion of a biological right even under circumstances involving little or no actual attachment. The second applicant, X, also had a right under Article 8 to have his family life protected. The question therefore arose as to whether his “family life” consisted of his biological ties to the first applicant or of the only family life that he had known, namely with the persons who had assumed care for him since he was three weeks old and who, in his mind, were his actual parents.", "172. The case involved competing interests, but there was no consensus among the Contracting States as to the extent to which public authorities could interfere with family life in the interests of the well-being of a child, which suggested that they should be accorded a wider margin of appreciation. In the case under consideration, the reasons given by the domestic authorities for the impugned decisions had been relevant and sufficient. X had been subjected to very serious neglect during the first weeks of his life. The first applicant had subsequently failed to show any development with regard to her approach to him. X was vulnerable to a repetition of the same pattern of disturbances and reactions. If his care needs were not met, there was a risk of retraumatisation and a reversal of positive development with regard to his functioning. The first applicant had continued to appear “completely devoid of any such empathy and understanding” that would be called for should X be returned to her.", "173. The domestic authorities had complied with their positive obligations. The first applicant had not accepted help from the child welfare services. The authorities had also taken note of her recent marriage and second child, but those developments had not been sufficient to outweigh the necessity of the impugned measures. The Chamber minority had erroneously assumed that the inquiry made by the child welfare services in the municipality to which the first applicant had moved had disclosed “no shortcomings”.", "174. The Chamber minority had disregarded Article 35 § 1 of the Convention and had “ reopened ” earlier cases. In doing so, the minority had wrongfully applied the standard of a “stricter scrutiny”, not merely to the adoption decision, but also to the prior decisions relating to the taking into care of X. In addition, the minority had erred with respect to the facts. There had been a previous order awarding the minimum legal contact rights; further contact had not been precluded had this been in X ’ s best interest. However, three experts had concluded that there had been no positive development whatsoever in the relationship between X and the first applicant. Rather than availing herself of the supportive measures, the first applicant had continued to use the contact sessions as an arena for cultivating her opinion that she had been a victim of injustice, instead of focusing on X. It had been primarily in the first applicant ’ s and her family ’ s view that there had been a “conflict” between the first applicant, the child welfare services and the foster mother.", "175. In short, the circumstances had been exceptional and the impugned decisions had clearly been motivated by an overriding requirement pertaining to X ’ s best interests. The City Court had succeeded in its difficult and sensitive task of striking a fair balance between the relevant competing interests in a complex case.", "3. Third-party comments", "(a) The Government of Belgium", "176. The Government of Belgium stated that, while perceptions varied as to what manner of intervention with respect to child welfare was appropriate, Belgian legislation did not allow for adoption contrary to the biological parents ’ wishes. They further submitted that domestic authorities in cases such as the present one had to balance the best interests of the child against the interests of the biological parents. The Belgian Government went on to express a number of considerations as to the facts as they had been restated in the Chamber judgment, and highlighted that these differed from those in the case of Aune, cited above.", "(b) The Government of Bulgaria", "177. The Government of Bulgaria submitted that the child welfare case should be reviewed in its entirety because earlier decisions such as on placement in care and contact rights were intrinsically linked to the adoption proceedings. The Contracting Parties had a wide margin of appreciation when deciding on placement in public care, but a stricter scrutiny was called for in respect of any further limitations. When further limitations were involved, the Court was called upon not only to examine the procedural aspects of the decision-making process, but to go beyond the form, if necessary, and assess the substance of the case. Furthermore, the Bulgarian Government emphasised the positive duty to make concrete efforts to facilitate family reunification as soon as reasonably feasible and stressed that it was not enough to show that a child could be placed in a more beneficial environment for his upbringing.", "( c ) The Government of the Czech Republic", "178. The Government of the Czech Republic focused mainly on the approach of the respective authorities after emergency or permanent placements of children in foster care, since, they submitted, immediate active work with the biological families after the placement as well as the frequency of contact between the children and their biological parents appeared to be crucial factors in maintaining original family ties.", "179. They further stressed that when assessing the compliance of authorities with their obligations under Article 8 of the Convention, the situation of all members of the family must be taken into account. There was a broad consensus, including in international law, that in all decisions concerning children, their best interests must be paramount. However, the “best interests” principle was not designed to be a kind of “trump card”. Article 8 covered both the best interests of the child and the right of the parents to be assisted by the State in staying or being reunited with their children. The child welfare systems should not disregard the existence of the biological parents ’ rights, which should be duly taken into account and balanced against the best interests of the child, rather than minimised to the point of being ignored.", "180. In addition, the Government of the Czech Republic emphasised the importance of contact between biological parents and their child in public care and other measures to reunite the family, inter alia, in order to ensure that a taking into care remained a temporary measure: restrictions on contact could be the starting point of the child ’ s alienation from his or her biological family and, thus, of the impossibility for the family to reunite. In order for the effort to reunite the family to be serious, contact would have to occur several times a week, even under supervision or with assistance, and increase in time up to daily visits. If that were the case, it would be possible to talk about a slow establishment of a bond between the child and their biological parents. Speedy procedures were also required.", "181. As to adoption, they maintained that the Court must strike a balance between the rights of the biological and the adoptive parents. The best interests of the child had to be assessed on an ad hoc basis that sometimes conflicted with other interests involved: there were other rights that had to be taken into account when determining whether or not a child should be considered adoptable.", "( d ) The Government of Denmark", "182. The Government of Denmark argued that the domestic authorities had made a comprehensive and thorough evaluation of the matter, and the Court ’ s assessment should be limited to an assessment of the decision-making process. The Court should not, as had the Chamber minority, carry out a “forensic examination of the facts” and substitute its own assessment for that of the domestic courts, who had undertaken a balancing exercise in conformity with the criteria laid down in Article 8 of the Convention and the Court ’ s jurisprudence.", "183. The Chamber majority had made a correct assessment of the matter and there were no strong reasons why the Court should reassess the facts of the case as a fourth-instance tribunal several years after the incidents and based on documentary evidence presented to the Court. Reference was made to paragraph 28(c) of the Copenhagen Declaration. By expressing a dissenting opinion implying an entirely new assessment, the Chamber minority had attempted to don the mantle of a fourth-instance tribunal. The domestic authorities had clearly demonstrated that they had made a thorough assessment of the matter comprising a comprehensive balancing of opposing interests and had shown an understanding of the fact that the case concerned far-reaching intrusions into family and private life, and had also taken into account Article 8 of the Convention and loyally applied the criteria laid down in the Court ’ s jurisprudence.", "(e) The Government of Italy", "184. The Government of Italy submitted that the first applicant ’ s interests did not necessarily align with those of X. If the Court wanted to ensure that X ’ s interests were looked after, it could indicate to the respondent Government that counsel should be appointed for him. Moreover, the Italian Government argued that the decisions taken prior to that concerning X ’ s adoption had become final and if the Court were to re ‑ examine them now in connection with the complaint against the adoption decision, this would run counter to Article 35 of the Convention. Those prior decisions were only facts and ought to be treated as such.", "185. In addition, the Italian Government emphasised that there was no European consensus on the topic of protecting parents and children ’ s rights to respect for their family life; the Contracting Parties had a wide margin of appreciation. There were examples in the Court ’ s jurisprudence of cases that had been approached in contradiction to the general principles usually set out by the Court, cases where the Court had taken on a fourth - instance role and examined whether there existed circumstances justifying the removal of the child – which was linked to the idea of a “forensic examination of the facts” mentioned in the dissenting opinion in the Chamber judgment – as well as cases in which the Court had assumed that the best interests of the child coincided with those of his or her biological parents.", "186. As to the best interests of the child, the Italian Government emphasised that in the relevant international materials a child was considered to be neglected when the parents did not maintain the necessary relations for his or her upbringing or development, or provide psychological and material assistance. In that connection the Italian Government raised issues with long-term care; children in care lived in limbo between biological parents and substitute carers, with resulting problems such as loyalty conflicts. References were made to Barnea and Caldararu v. Italy, no. 37931/15, 22 June 2017 and Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24 January 2017. Specialists and experts had emphasised that it was not a rule that biological family ties should be preserved, and that should only be the case where it represented a benefit to the child in the specific case. Only the national decision-makers could carry out the necessary assessment of that individual question. The Court did not have the necessary tools to be a fourth - instance tribunal and carry out a “forensic examination of the facts”.", "( f ) The Government of Slovakia", "187. The Government of Slovakia submitted that the Court ’ s case-law was perfectly clear in that it primarily protected the biological family. Placing a child in foster care was an extreme measure and domestic authorities were required to adopt other measures if such were able to achieve the pursued aim. In particular, where a decision had been explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established. Simultaneously, taking a child into care should be regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measure of implementation should be consistent with the ultimate aim of reuniting the natural parent with his or her child.", "188. The Slovakian Government made further comments on a case in which Slovak citizens had been affected by child welfare measures and on international concern about child welfare measures adopted in the respondent State.", "(g) The Government of the United Kingdom", "189. The Government of the United Kingdom submitted that in cases such as the present the Court ought in principle to focus on the adequacy of the procedures and sufficiency of the reasons adopted by the domestic authorities, rather than undertake a de novo analysis of the facts.", "190. The Court had enumerated a number of identifiable factors that were likely to be relevant in a case such as the present. The UK Government noted, in particular, that permanency was an inherent part of any adoption decision, and that a balancing of interests was required, but guided by the paramountcy of the best interests of the child. The child ’ s bonds to his or her de facto family were therefore to be considered, and Article 8 of the Convention did not require that domestic authorities make endless attempts at family reunification.", "191. With respect to subsidiarity, the UK Government pointed to paragraph 28 of the Copenhagen Declaration. In cases such as the present, account should be taken of the relative expertise and involvement of the domestic authorities compared with the Court, the level of participation of the parties affected by the domestic process, and the level of consensus amongst Contracting States. The seriousness of the intervention at issue was also relevant, but a closer scrutiny could not entail a fresh assessment of the facts and particularly not if considerable time had elapsed since the decision under review. The Chamber minority could be understood as seeking to establish that the Court should undertake its own assessment of the underlying facts, rather than reviewing the decisions, particularly by its reference to the need for “a forensic examination of the facts” and by indications that the dissenting judges envisaged that the Court itself should render a “substantive” decision. The Grand Chamber was invited to reject this approach; as had been stated by the Chamber majority, the Court was required to consider whether the domestic authorities had adduced relevant and sufficient reasons for their decisions, but only the domestic authorities were in a position to determine what was in the child ’ s best interests.", "(h) ADF International", "192. ADF International submitted that family was internationally recognised as the fundamental group of society and of particular importance to children. According to the Court ’ s case-law, the Contracting Parties were required to organise their child welfare services in a manner aimed at facilitating family reunification, unless there was clear evidence of danger to the child ’ s welfare. Furthermore, ADF International emphasised the duty to maintain contact between parents and children and to provide practical assistance to families.", "( i ) The AIMMF", "193. The AIMMF emphasised the importance of personal participation of the natural parent, with legal assistance, before the domestic authorities, as had been the case for the first applicant. In addition to making some comments on the emergency decision, the organisation also highlighted the need for the child to have legal assistance in order to ensure that his or her best interests be protected.", "194. Furthermore, the AIMMF submitted that the multi-disciplinary composition of the County Social Welfare Board and the City Court was a particularly important aspect that had also been highlighted by the Court in Paradiso and Campanelli, cited above, § 212. Decision-makers with multi ‑ disciplinary competences formed a crucial aspect of a justice system adapted for children.", "195. Moreover, the organisation emphasised the importance of bearing in mind that this case concerned X specifically, and solutions had to be found for him in the light of his vulnerability and history, including the experiences with contact sessions and his ties to the foster parents. Based on the Chamber judgment, the Chamber majority had shown a greater understanding of X ’ s needs than what was reflected in the dissenting opinion. It was precisely on the basis of X ’ s individual circumstances and history that the domestic authorities had arrived at the conclusion that it was in his best interests to strengthen his relations with the foster parents.", "(j) The AIRE Centre", "196. The AIRE Centre invited the Court to reiterate that the Convention was a “living instrument” and that the evolving nature of children ’ s rights under the Convention on the Rights of the Child had to be taken into account.", "197. As to the assessment of the child ’ s best interests, the organisation emphasised the importance of family unity and the child ’ s right to be heard, as protected by Article 12 of the Convention on the Rights of the Child. With respect to the thresholds for removal and adoption of a child, the organisation reiterated the principles relevant to the questions of necessity and proportionality. It further pointed to the need for both legal certainty and flexibility, and highlighted “ adoption simple ” or long-term fostering as alternatives to a “closed” adoption. While it could be that in very exceptional circumstances it would not be in a child ’ s best interests to retain contact with the birth parents (for example, when those parents had been operating a paedophile ring or engaging in child trafficking or serial child abuse), this conclusion should not flow automatically from the decision that the child needed a stable, permanent home that was not with the birth parents.", "198. The AIRE Centre further submitted that children of parents with intellectual disabilities were commonly taken away as infants, with neglect such as slow weight gain, general failure to thrive, and lack of understanding of children ’ s needs, as the primary concern. Parents with intellectual disabilities had the right to support and, inter alia, General Comment No. 14 (2013) to the Convention on the Rights of the Child stressed this positive obligation.", "(k) The adoptive parents", "199. X ’ s adoptive parents submitted that his representation before the Court raised a crucial question in the case. The principle of the best interests of the child had also to be applied to the procedural rules of representation. Under the Court ’ s case-law, the rules relating to representation of children had been flexible and applied so as to ensure that all relevant interests would be brought to the Court ’ s attention. Allowing the natural parents to represent a child who had a protected family life with foster or adoptive parents did not ensure an effective protection of the child ’ s rights under the Convention.", "200. According to the Court ’ s case-law, “family life” was essentially a question of fact. Striking a fair balance between the public interest and the many different private interests at play had been emphasised by the Court as particularly important in a case where the child had developed family ties with two different families. Reference was made to, inter alia, Moretti and Benedetti v. Italy, no. 16318/07, 27 April 2010. Due regard also had to be given to other ties that had formed, for instance with siblings.", "201. Furthermore, the Court ’ s case-law had established the principle of the best interests of the child as the paramount consideration and the decisive factor in cases relating to the placement in public care and adoption of children. The Grand Chamber should seek to combine the case-law concerning family life between the child and the foster parents and that concerning the paramountcy of the best interests of the child in the instant case.", "4. The Court ’ s considerations", "(a) General principles", "202. The first paragraph of Article 8 of the Convention guarantees to everyone the right to respect for his or her family life. As is well established in the Court ’ s case-law, the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by this provision. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that is or are legitimate under its second paragraph and can be regarded as “necessary in a democratic society” (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 ‑ VII; and Johansen, cited above, § 52).", "203. In determining whether the latter condition was fulfilled, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli, cited above, § 179). The notion of necessity further implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests ( ibid., § 181).", "204. In so far as the family life of a child is concerned, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child ’ s interests must come before all other considerations (see Jovanovic, cited above, § 77, and Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX ).", "205. At the same time, it should be noted that regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible ( K. and T. v. Finland, cited above, § 178).", "206. In instances where the respective interests of a child and those of the parents come into conflict, Article 8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see, for instance, Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003 ‑ VIII (extracts)), and the references therein).", "207. Generally, the best interests of the child dictate, on the one hand, that the child ’ s ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child ’ s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see, among many other authorities, Neulinger and Shuruk, cited above, § 136; Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII; and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). An important international consensus exists to the effect that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child ( see Article 9 § 1 of the United Nations Convention on the Rights of the Child, recited in paragraph 134 above ). In addition, it is incumbent on the Contracting States to put in place practical and effective procedural safeguards for the protection of the best interests of the child and to ensure their implementation (see the United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, paragraphs 85 and 87, quoted at paragraph 136 above).", "208. Another guiding principle is that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child ( see, for instance, Olsson v. Sweden (no. 1), 24 March 1988, § 81, Series A no. 130). The above - mentioned positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child (see, for example, K. and T. v. Finland, cited above, § 178). In this type of case the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live (see, inter alia, S.H. v. Italy, no. 52557/14, § 42, 13 October 2015). Thus, where the authorities are responsible for a situation of family breakdown because they have failed in their above-mentioned obligation, they may not base a decision to authorise adoption on the grounds of the absence of bonds between the parents and the child ( see Pontes v. Portugal, no. 19554/09, §§ 92 and 99, 10 April 2012). Furthermore, the ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other (see Scozzari and Giunta, cited above, § 174; and Olsson ( No. 1), cited above, § 81). However, when a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited ( see K. and T. v. Finland, cited above, § 155).", "209. As regards replacing a foster home arrangement with a more far-reaching measure such as deprivation of parental responsibilities and authorisation of adoption, with the consequence that the applicants ’ legal ties with the child are definitively severed, it is to be reiterated that “such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child ’ s best interests” (see, for example, Johansen, cited above, § 78, and Aune, cited above, § 66). It is in the very nature of adoption that no real prospects for rehabilitation or family reunification exist and that it is instead in the child ’ s best interests that he or she be placed permanently in a new family ( see R. and H. v. the United Kingdom, no. 35348/06, § 88, 31 May 2011).", "210. In determining whether the reasons for the impugned measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the care of children and the rights of parents whose children have been taken into public care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, K. and T. v. Finland, cited above, § 154; and Johansen, cited above, § 64).", "211. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (see, for example, K. and T. v. Finland, cited above, § 15 5; and Johansen, cited above, § 64). However, this margin is not unfettered. For example, the Court has in certain instances attached weight to whether the authorities, before taking a child into public care, had first attempted to take less drastic measures, such as supportive or preventive ones, and whether these had proved unsuccessful (see, for example, Olsson (no. 1), cited above, §§ 72-74; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013, § 86; and Kutzner v. Germany, no. 46544/99, § 75, ECHR 2002 ‑ I ). A stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K. and T. v. Finland, cited above, ibid., and Johansen, cited above, ibid.).", "212. In cases relating to public - care measures, the Court will further have regard to the authorities ’ decision-making process, to determine whether it has been conducted such as to secure that the views and interests of the natural parents are made known to and duly taken into account by the authorities and that they are able to exercise in due time any remedies available to them (see, for instance, W. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121, and Elsholz, cited above, § 52). What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see, for example, W. v. the United Kingdom, cited above, § 64; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001 ‑ V (extracts); Neulinger and Shuruk, cited above, § 139; and Y.C. v. the United Kingdom, no. 4547/10, § 138, 13 March 2012). From the foregoing considerations it follows that natural parents ’ exercise of judicial remedies with a view to obtaining family reunification with their child cannot as such be held against them. In addition, in cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. Equally, effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere effluxion of time (see W. v. the United Kingdom. , cited above, § 65).", "213. Whether the decision-making process sufficiently protected a parent ’ s interests depends on the particular circumstances of each case (see, for example, Sommerfeld, cited above, § 68 ). With a view to its examination of the present instance, the Court observes that in the aforementioned case it was called upon to examine the issue of ordering a psychological report on the possibilities of establishing contact between the child and the applicant. It observed that as a general rule it was for the national courts to assess the evidence before them, including the means to ascertain the relevant facts (see Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 ‑ B ). It would be going too far to say that domestic courts are always required to involve a psychological expert on the issue of awarding contact to a parent not having custody, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sommerfeld, cited above, § 71).", "( b ) Application of those principles to the present case", "214. It is common ground between the parties, and the Court finds it unequivocally established, that the impugned decisions taken in the proceedings instituted by the first applicant on 29 April 2011 (see paragraph 81 above), starting with the Board ’ s decision of 8 December 2011 and ending with the Supreme Court Appeals Board ’ s decision of 15 October 2012, entailed an interference with the applicants ’ right to respect for their family life under the first paragraph of Article 8. It is further undisputed that they were taken in accordance with the law, namely the Child Welfare Act (see paragraph 122 above), and pursued legitimate aims, namely the “protection of health or morals” and “rights and freedoms” of X. The Court sees no reason to hold otherwise. The interference thus fulfilled two of the three conditions of justification envisaged by the second paragraph of Article 8. The dispute in the present case relates to the third condition: whether the interference was “necessary in a democratic society”.", "215. Bearing in mind the limitations on the scope of its examination as described in paragraphs 147 to 148 above, the Court will centre its examination on the City Court ’ s review as reflected in its judgment of 22 February 2012, which ultimately gained legal force on 15 October 2012 when the Supreme Court Appeals Board dismissed the first applicant ’ s appeal (see paragraphs 98-113, 118 and 121 above).", "216. At the outset the Court notes that the City Court ’ s bench was composed of a professional judge, a lay person and a psychologist. It held a three-day hearing that the first applicant attended together with her legal - aid counsel and in which twenty-one witnesses, including experts, gave testimony (see paragraph 98 above ). In addition, the Court notes that the City Court acted as an appeal instance and that proceedings similar to those before that court had previously been conducted, and similarly extensive reasons given, by the County Social Welfare Board, which had also had a composition similar to that of the City Court (see paragraphs 89-95 above). The City Court ’ s judgment was subject to review in leave - to - appeal proceedings before the High Court (see paragraphs 114-18 above), which were in turn examined by the Supreme Court Appeals Board (see paragraphs 119-21 above).", "217. In its judgment the City Court decided not to lift the care order for X, to deprive the first applicant of her parental responsibilities for him and to authorise his adoption by his foster parents, in accordance with sections 4-21 and 4-20 of the Child Welfare Act respectively (see paragraph 122 above). While observing that the City Court relied on several grounds in order to justify its decisions, the Court notes that under the aforementioned provisions a central condition for the imposition of the impugned measures related to the natural parent ’ s ability to assume care. Thus, pursuant to section 4-21, a precondition for revoking the care order was the high probability that the parent would be able to provide the child with proper care. Under section 4-20, consent to adoption could be given if it had to be regarded as probable that the parent would be permanently unable to provide the child with proper care.", "218. The City Court assessed that issue primarily in the part of its reasoning devoted to the applicant ’ s request to have the care order lifted, which can be summarised as follows. Her situation had improved in some areas (see paragraph 100 above). However, X was a vulnerable child who had shown emotional reactions in connection with the contact sessions (see paragraphs 101- 0 2 above). The evidence adduced had clearly shown that the first applicant ’ s fundamental limitations at the time of the High Court ’ s judgment in the previous set of proceedings still persisted. She had not improved her ability to handle contact situations; she had affirmed that she would fight until the child was returned to her; and she had stated that she did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term (see paragraphs 103- 0 4 above). Moreover, the experts who had testified in court, other than K.M., had advised against returning X to his mother (see paragraph 105 above). There was no reason to consider in further detail any other arguments regarding the first applicant ’ s ability to provide care, since returning X to her was in any event not an option owing to the serious problems it would cause him to be moved from the foster home (see paragraph 106 above).", "219. In deciding on the child welfare services ’ application for removal of the first applicant ’ s parental responsibilities in respect of X and authorisation of the latter ’ s adoption, the City Court endorsed the Board ’ s reasoning regarding the alternative criteria in letter (a) of section 4-20 of the Child Welfare Act, namely that it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, removing him could cause him serious problems (see paragraph 108 above). In so far as the question of caring skills is concerned, the following findings of the Board are noteworthy in this context. There was nothing to indicate that the first applicant ’ s caring skills had improved since the High Court ’ s judgment of 22 April 2010. She had not realised that she had neglected X and was unable to focus on the child and what was best for him. Whilst note had been taken of the information that the first applicant had married and had had a second child, this was not decisive in respect of her capacity to care for X. He was a particularly vulnerable child and had experienced serious and life-threatening neglect during the first three weeks of his life. The Board had also taken account of the experience during the contact sessions. Moreover, since X had lived in the foster home for three years and did not know the first applicant, returning him to her would require a great capacity to empathise with and understand him and the problems that he would experience. Yet the first applicant and her family were completely devoid of any such empathy and understanding (see paragraph 90 above).", "220. The Court is fully conscious of the primordial interest of the child in the decision-making process. However, the process leading to the withdrawal of parental responsibilities and consent to adoption shows that the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and his biological family (see paragraphs 20 7 and 20 8 above), but focused on the child ’ s interests instead of trying to combine both sets of interests, and moreover did not seriously contemplate any possibility of the child ’ s reunification with his biological family. In this context, the Court, in particular, is not persuaded that the competent domestic authorities duly considered the potential significance of the fact that at the time when the first applicant applied to have the care order lifted or, in the alternative, to be granted extended contact rights she was going through substantial changes in her life : in the same summer and autumn as the impugned proceedings commenced she married and had a second child. In this regard, as the City Court ’ s decision was largely premised on an assessment of the first applicant ’ s lack of capacity to provide care, the factual basis on which it relied in making that assessment appears to disclose several shortcomings in the decision - making process.", "221. The Court notes that the decisions under consideration had been taken in a context where there had only been very limited contact between the first applicant and X. The Board, in its decision of 2 March 2009, and the High Court, in its judgment of 22 April 2010 ( overturning the City Court ’ s judgment of 19 August 2009 ), had relied on the consideration that it was most likely that the foster care arrangement would be a long-term one, and that X would grow up in the foster home (see paragraphs 31, 43 and 75 above). The High Court stated that contact sessions could thus serve as a means of maintaining contact between the mother and son, so that he would be familiar with his roots. The purpose was not to establish a relationship with a view to the child ’ s future return to the care of his biological mother (ibid.). As regards the implementation of the contact arrangements, the Court also notes that these had not been particularly conducive to letting the first applicant freely bond with X, for example with regard to where the sessions had been held and who had been present. Although the contact sessions had often not worked well, it appears that little was done to try out alternative arrangements for implementing contact. In short, the Court considers that the sparse contact that had taken place between the applicants since X was taken into foster care had provided limited evidence from which to draw clear conclusions with respect to the first applicant ’ s caring skills.", "222. Furthermore, the Court regards it as significant that there were no updated expert reports since those that had been ordered during the previous proceedings between 2009 and 2010 relating to the taking into public care. Those were the report by psychologist B.S. and family therapist E.W.A, ordered by the child welfare services and concerning X ’ s reactions to the contact sessions in the beginning of September 2009 (see paragraph 58 above), and the report by psychologist M.S., who had been appointed by the High Court on 15 November 2009 (see paragraph 61 above). The former dated back to 20 February 2010 and the latter to 3 March 2010 (see paragraphs 62 and 63 above respectively). When the City Court delivered its judgment on 22 February 2012, both reports were two years old. Indeed, alongside other witnesses such as family members, psychologists B.S. and M.S. also gave evidence during the hearing held by the City Court in 2012 (see paragraph 98 above). However, the two psychologists had not carried out any examinations since those prior to their reports dating back to early 2010 and only one of the reports, the one by psychologist M.S., had been based on observations of the interplay between the applicants, and then only on two occasions ( see paragraph 63 above ).", "223. The Court does not overlook the fact that the child welfare services had sought information from the first applicant concerning her new family that she apparently refused to provide (see paragraphs 85 and 115 above). At the same time it notes that counsel for the first applicant had expressly requested that a new expert assessment be made but that the High Court dismissed the request (see paragraphs 114 and 118 above). Nor had the City Court ordered a new expert examination proprio motu in the course of the proceedings before it. While it would generally be for the domestic authorities to decide whether expert reports were needed (see, for example, Sommerfeld, cited above, § 71), the Court considers that the lack of a fresh expert examination substantially limited the factual assessment of the first applicant ’ s new situation and her caring skills at the material time. In those circumstances, contrary to what the City Court seems to suggest, it could not reasonably be held against her that she had failed to appreciate that repeated legal proceedings could be harmful for the child in the long run (see paragraphs 104 and 21 8 above).", "224. In addition, from the City Court ’ s reasoning it transpires that in assessing the first applicant ’ s caring skills it had paid particular regard to X ’ s special care needs, seen in the light of his vulnerability. However, whereas X ’ s vulnerability had formed a central reason for the initial decision to place him in foster care (see, for instance, paragraphs 31 and 42 above), the City Court ’ s judgment contained no information on how that vulnerability could have continued despite the fact that he had lived in foster care since the age of three weeks. It also contained barely any analysis of the nature of his vulnerability, beyond a brief description by experts that X was easily stressed and needed a lot of quiet, security and support, and stating his resistance to and resignation toward having contact with the first applicant, notably when faced with her emotional outbursts (see paragraphs 101 to 102 above). In the view of the Court, having regard to the seriousness of the interests at stake, it was incumbent on the competent authorities to assess X ’ s vulnerability in more detail in the proceedings under review.", "225. Against this background, taking particular account of the limited evidence that could be drawn from the contact sessions that had been implemented (see paragraph 22 1 above), in conjunction with the failure – notwithstanding the first applicant ’ s new family situation – to order a fresh expert examination into her capacity to provide proper care and the central importance of this factor in the City Court ’ s assessment (see paragraphs 22 2 - 3 above) and also of the lack of reasoning with regard to X ’ s continued vulnerability (see paragraph 22 4 above), the Court does not consider that the decision -making process leading to the impugned decision of 22 February 2012 was conducted so as to ensure that all views and interests of the applicants were duly taken into account. It is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake.", "226. In the light of the above factors, the Court concludes that there has been a violation of Article 8 of the Convention in respect of both applicants.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "227. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "228. The applicants each claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage.", "229. The Government asked the Court, in the event of a finding of a violation, to afford just satisfaction within the limits of Article 41 of the Convention.", "230. The Court considers that awarding damages to the first applicant is appropriate in this case, having regard to the anguish and distress that she must have experienced as a result of the procedures relating to her claim to have X returned and the child welfare services ’ application to have her parental responsibilities for X withdrawn and his adoption authorised. It awards the first applicant EUR 2 5,000 under this head. In respect of X, having regard to his age at the relevant time and to the fact that he did not experience the procedures in question in the same way as the first applicant, the Court finds that a finding of violation can be regarded as sufficient just satisfaction.", "B. Costs and expenses", "231. The applicants also claimed EUR 50,000 for the costs and expenses incurred before the domestic authorities and the Chamber and EUR 9,564 for those incurred before the Grand Chamber.", "232. The Government asked the Court, in the event of a violation, to afford just satisfaction within the limits of Article 41 of the Convention.", "233. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "234. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and before the Chamber, since the applicants have not shown that these expenses were actually incurred. As to the costs and expenses before the Grand Chamber, the Court observes that apart from travel expenses, the claim is submitted with reference to a contingency (no-win no-fee) arrangement, according to which the first applicant is obliged to pay counsel EUR 9,000 in the event of “success before the European Court of Human Rights”. Agreements of this nature – giving rise to obligations solely between lawyer and client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs are actually incurred but also to whether they have been reasonably incurred (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000 ‑ XI). Accordingly, the Court must as a basis for its assessment examine the other information provided by the applicants in support of their claim. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see, inter alia, A, B and C v. Ireland [GC], no. 25579/05, § 281, ECHR 2010). In the instant case, the Court, taking into account that the claim has not been contested, considers it reasonable to award the sum of EUR 9, 35 0 for the proceedings before the Grand Chamber. In the circumstances, it is appropriate to award this compensation to the first applicant only.", "C. Default interest", "235. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant, Mr K.O., was born in 1974 and the second applicant, Ms V.M., was born in 1986.", "A. Emergency decision", "7. On 1, 10 and 22 December 2014 the child-welfare services received notifications of concern ( bekymringsmeldinger ) about A, an as yet unborn child. Two of the notifications came from the police and concerned suspicions that the first applicant had physically mistreated the second applicant. The third notification came from the preventive-mental-health services ( forebyggende psykisk helsetjeneste ) and contained information about the second applicant ’ s history of anxiety, depression and drug use.", "8. In addition, the child-welfare services received three notifications from private parties, two of which were anonymous. These expressed serious concerns as to how the second applicant was being controlled and manipulated by the first applicant. According to the notifications, the first applicant had forced the second applicant to use amphetamines, and he had cut up her clothes and put her shoes in water in order to hinder her from leaving their home. Moreover, the second applicant had been excluded from contact with her family and network, either as she had been manipulated into distancing herself from them, or because they had been threatened and frightened by the first applicant. According to the notifications, the second applicant had tried to leave the first applicant several times, but had always returned.", "9. A, a girl, was born on 13 January 2015. On the same day, the child-welfare services received an anonymous notification of concern which stated that the first applicant was violent and that he had pressured the second applicant into taking drugs. On 14 January 2015 the second applicant ’ s grandmother sent a notification of concern where she stated that the first applicant was manipulative, controlling and that he had been selling amphetamines. On 15 January 2015 the child-welfare services received information from other public authorities about the first applicant ’ s criminal convictions and the second applicant ’ s mental-health problems and her history of drug abuse. The same day the child-welfare services arranged for the second applicant and the child to stay at a family centre, with the second applicant ’ s consent. The first applicant was informed of the decision, but not of their whereabouts, due to the concerns that had been expressed in the notifications.", "10. On 22 January 2015 the child-welfare services considered that the second applicant had withdrawn her consent to stay at the family centre. It therefore adopted an emergency decision under section 4-6 of the Child Welfare Act (see paragraph 43 below) to place A in public care; to grant the applicants contact rights of one hour every second week, under supervision; and not to inform the applicants of A ’ s address. The child-welfare services found that there was a risk that A would suffer considerable harm if she were to stay with the applicants. Reference was made to the notifications concerning mental-health problems, drug abuse and suspicions of violence, and to the fact that the applicants had not agreed to cooperate with the child-welfare services prior to A ’ s birth.", "11. The applicants appealed against the emergency decision to the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ). On 2 February 2015 the Board upheld the decision. It noted the notifications received by the child-welfare services prior to A ’ s birth; that the applicants had refused to cooperate with the child-welfare services before the birth; and that the second applicant had withdrawn her consent to stay at the family centre.", "12. The applicants challenged the Board ’ s decision before the City Court, which on 26 March 2015 upheld the placement of A in emergency public care. It held that there was a considerable risk that A, a three-and-a-half-month-old infant, would suffer serious harm if she were returned to the applicants.", "13. The City Court attached considerable weight to the high level of conflict in the family, which could be harmful for a small child. The applicants had acknowledged that they had argued at times, and had stated that these arguments had often begun as disagreements over trivial matters which had escalated. They had not contested that the second applicant had left the family home several times during the pregnancy and that she had, on one occasion, been thrown out by the first applicant after an argument. The police had been called to their home several times during the pregnancy, both by neighbours and by the second applicant, after loud disagreements. The applicants had stated that they would adapt to the new situation with an infant and that they would not argue in the presence of the child. In the City Court ’ s opinion there was a high risk of continued strife due to the high level of conflict that had existed between the applicants over time – both before and during the pregnancy – and on account of the added stresses that would result from the demanding task of taking care of a small child.", "14. The City Court also found that the second applicant lacked proper impulse control and the ability to handle conflicts in an adequate manner. In 2014 she had pretended to be suicidal, which had resulted in her being admitted to a psychiatric institution. Her general practitioner ( fastlege ) had testified that she had not considered the second applicant to be suicidal and that the compulsory placement had been an error. The City Court noted that the second applicant ’ s mental health had not been examined, but that it was a matter of grave concern given its potential effect on her ability to provide adequate care.", "15. Based on an overall assessment, the City Court found that there was a qualified risk that A would suffer material harm if the emergency placement order were lifted. Less restrictive assistance measures could not adequately safeguard her against the dangers she would be exposed to if she were returned to the applicants. In reaching this conclusion the City Court emphasised the complexity of the family ’ s problems and the fact that previous attempts to help the applicants deal with their various health and drug related problems had been unsuccessful. It therefore concluded that the applicants would need extensive and long-lasting assistance before A could be returned.", "16. The applicants appealed against the City Court ’ s judgment on the emergency decision, but later withdrew the appeal, as the child-welfare services had instigated proceedings in order to obtain a care order (see below).", "B. Placement decision", "1. County Social Welfare Board", "17. Prior to the City Court ’ s judgment on the emergency care order, on 6 March 2015 the child-welfare services applied to the County Social Welfare Board for a decision to place A in public care under section 4-12 of the Child Welfare Act (see paragraph 43 below). The Board, composed of a chairperson qualified to act as a professional judge, two psychologists and two laypeople, held oral hearings for two days and heard testimony from eleven witnesses. The applicants were present and were represented by counsel.", "18. On 20 May 2015 the Board decided that A should be placed in a foster home and that the applicants should not be informed of her whereabouts, in accordance with section 4-19 of the Child Welfare Act (see paragraph 43 below), due to concerns that they would try to find A, and even try to kidnap her. The Board decided not to deprive the applicants of their parental responsibilities in respect of A.", "19. The Board found that the applicants, individually and together, had several traits which gave rise to concern as to their ability to provide adequate care for A. The first applicant had been diagnosed with post-traumatic stress disorder (PTSD) and attention-deficit disorder (ADHD) and had an extensive criminal history, including convictions for battery and for issuing threats. The second applicant had a long and extensive history of psychiatric illness and drug abuse. The police had been called to the applicants ’ house several times during 2013 and 2014 on account of domestic disputes. The second applicant had gone to a crisis centre twice during the pregnancy.", "20. While the first applicant had two cousins and an aunt living nearby, the Board considered that this support network would not be sufficient to ensure that the child would receive adequate care. The Board held that assistance measures, for example counselling, would not be sufficient to ensure adequate conditions for the child. Neither of the applicants had, over time, taken advantage of offers to assist them with their mental-health issues or their substance abuse. The Board therefore held that it would be in the best interests of the child to be placed in a foster home.", "21. As to the question of contact rights, the Board noted that no attachment had been established between A and the applicants, as she had been placed in public care shortly after birth. The placement in foster care would most likely be long-term. The purpose of visits with the applicants would therefore be for the applicants and A to get to know each other. While it would be important for A to have order and stability in the foster home, the Board found that it was not necessary to restrict the contact rights to the degree proposed by the child-welfare services – one hour, once a year. Instead it granted contact rights of one hour, four times a year. The child-welfare services would be allowed to supervise the visits.", "2. City Court", "22. The applicants challenged the County Social Welfare Board ’ s decision before the City Court. They asked for the decision to place A in public care to be overturned or, if the City Court upheld the placement, for their contact rights to be increased. The applicants also requested a suspension of the Board ’ s decision as far as the limited contact rights were concerned. The City Court refused the request for a suspension on 6 July 2015.", "23. The City Court, composed of one professional judge, one lay person and one psychologist, heard testimony from the applicants and ten other witnesses, including a court ‑ appointed expert, also a psychologist, from 24 to 26 November 2015.", "24. In its judgment of 17 December 2015, the City Court upheld the decision to place A in public care, but increased the applicants ’ contact rights to two hours, six times a year. The City Court found that while the applicants were loving parents who wanted the best for A, the evidence had revealed numerous risk factors relating to their ability to provide adequate care.", "25. The City Court noted that the first applicant had previously been convicted of serious violent crimes of an antisocial character ( alvorlige voldsforbrytelser, av asosial karakter ). He had been convicted of assault at least six times and had in total been sentenced to fifteen years ’ imprisonment. In 2005 a court of first instance had ordered his preventive detention ( forvaring ), but this had, upon appeal, been altered to a prison sentence. Most of his criminal acts had been carried out while he had been a member of a motorcycle club, partly as a result of his role as a debt collector for the club. Acting in this capacity he had, inter alia, administered beatings and issued threats. According to the police he had been listed 100 times in the register of criminal complaints ( anmeldelsesregisteret ). Some of the complaints against him were still pending. The second applicant ’ s mother had for example reported him to the police for threatening her.", "26. In the City Court ’ s view, the first applicant ’ s history showed that he had exhibited antisocial behaviour over a considerable period of time. Moreover, he appeared to have little confidence in, or patience with, the public authorities, including the child-welfare services. The manager of the municipal child-welfare service had obtained a restraining order against the first applicant due to the frightening or threatening messages he had posted on social media. In the City Court ’ s opinion this demonstrated that the first applicant had a worrying inability to learn from his past actions, and it therefore questioned to what extent he would be able to change his behaviour in the future. During the court proceedings he had acted aggressively and impulsively towards the lawyer representing the child-welfare services and had been unable to control himself in a normal manner.", "27. The City Court did take note of positive aspects of the first applicant ’ s character that had been emphasised by his psychologist and by the court-appointed expert. However, the psychologist had also noted that the first applicant ’ s state of health had been complex, as he had been diagnosed with ADHD and had showed symptoms of PTSD, and had expressed concern on account of the first applicant “self-medicating” with cannabis on a daily basis.", "28. The expert had not found any indications that the second applicant had been suffering from any serious mental illness. The City Court also noted that it was positive that she had been able to refrain from using drugs for a longer period of time. However, it also considered that she was vulnerable. She had broken off contact with her family and appeared to be dependent on the first applicant and his network. Furthermore, the City Court considered her to have several unstable character traits which could affect her ability to provide adequate care, including, inter alia, her long history of psychiatric problems, her inability to finish the treatment that had been offered to her, and her impulsivity.", "29. Several witnesses, including representatives from the police, had stated that they had suspected that the first applicant had physically mistreated the second applicant. The City Court found it difficult to establish whether the second applicant had in fact been subjected to violence or whether she had exaggerated her fear of the first applicant to friends and the authorities to gain sympathy and attention. It stated that the most plausible conclusion lay somewhere in between.", "30. The City Court found that A was a normally functioning child, whose development was adequate for her age, but noted that she had already experienced two separations from her caregivers: the first when she was taken from her mother to the emergency care home; and a second time when she was moved to the foster home. The City Court held that while making her move again would come at a psychological cost, it would not be impossible to do so if her new caregivers could provide her with optimal care.", "31. The City Court agreed with the applicants that there were grounds for criticising the child-welfare services ’ handling of the case in the period leading up to the emergency care decision. The child-welfare services should have gathered more information about the parents before concluding that a stay at the family centre was necessary. The City Court found that it was unclear whether the second applicant had in fact retracted her consent to stay at the centre. However, it held that it was understandable that the child-welfare services had found it necessary to take steps in response to the notifications of concern that they had received. The fact that there were grounds for criticising some of their decisions did not entail that it would be in the child ’ s best interests to end her public care at the time of the City Court ’ s decision.", "32. The City Court concluded that the applicants, considered both individually and together, presented a number of risk factors which made it inadvisable to return A to them. The first applicant ’ s daily drug use was a factor of great concern. Both the psychologist and the expert had noted that the process of stabilising and rehabilitating the first applicant would take several months and potentially more than a year. The applicants had been unable to make use of the assistance measures that had previously been offered to them to help them deal with their psychological issues and drug dependency. Their history of domestic disputes, which had continued throughout the pregnancy, also illustrated that their relationship was vulnerable. Between 2013 and 2014 the police had had to intervene at the couple ’ s home seven times on account of domestic disturbances ( husbråk eller lignende ).", "33. The court-appointed expert and the second applicant ’ s general practitioner had spoken in favour of returning A to the applicants. The City Court however considered that they had not taken sufficient account of the above-mentioned risk factors, particularly in the light of the decisive weight to be given to the best interests of the child.", "34. The City Court found that assistance measures would not be adequate to create appropriate conditions for A if she were returned to the applicants, as the level of assistance that would be required would be too extensive to be practically feasible. Furthermore, the applicants ’ difficulties with cooperating with the authorities were a factor to be considered in this regard. The City Court observed, inter alia, that on account of the first applicant ’ s behaviour the police had advised the child-welfare services not to visit the applicants ’ home without the police being present.", "35. As to the question of contact rights, the City Court noted that an extensive ( omfattende ) contact scheme should only be implemented where the placement in public care was considered to be short-term, so as to facilitate an expedient return of the child. In the instant case the City Court considered that the placement would be long-term, and it would therefore not be in the child ’ s best interests for the applicants to be given extensive contact rights. However, because the applicants ’ interactions with A during visits had been described in positive terms, it found that their contact rights should be increased to two hours, six times a year. The child-welfare services were allowed to supervise the visits.", "3. Leave-to-appeal proceedings", "36. The applicants appealed against the City Court ’ s judgment. On 1 March 2016 the High Court ( lagmannsrett ) refused leave to appeal, noting that the case had been thoroughly examined by the City Court and that the judgment had been adequately reasoned. No new evidence had been submitted which could merit a re-examination of the case.", "37. The applicants appealed against the High Court ’ s decision. On 4 May 2016 the Supreme Court ’ s Appeals Leave Committee ( Høyesteretts ankeutvalg ) refused the applicants leave to appeal, unanimously finding that their appeal had no prospects of success.", "C. Subsequent developments", "38. While their application to the Court was still pending, the applicants, with reference to section 4-21 of the Child Welfare Act (see paragraph 43 below), asked the County Social Welfare Board to lift the care order. The municipality supported the applicants ’ claim. On 16 February 2018 the Board declined the request.", "39. The applicants appealed against the Board ’ s decision to the City Court. The municipality upheld its assessment that A should be returned to her parents, particularly on account of the applicants having agreed to assistance measures. Both the applicants and the municipality consented to the City Court ’ s deciding the matter without an oral hearing.", "40. On 19 March 2018 the City Court allowed the joint claim to lift the care order. It noted that two expert witnesses who had appeared before the Board had evaluated the applicants ’ care capacity as being stable and good, and that the applicants had consented to the implementation of assistance measures. The City Court accordingly saw no reason to depart from the municipality ’ s assessment that the care order should be lifted.", "41. In his letter to the Court 1 June 2018, the applicants ’ representative stated that A had been returned to her parents in accordance with the City Court ’ s judgment." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "42. Articles 102 and 104 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in May 2014, read as follows:", "Article 102", "“Everyone has the right to the respect of their privacy and family life, their home and their communication. Search of private homes shall not be made except in criminal cases. The authorities of the state shall ensure the protection of personal integrity.”", "Article 104", "“Children have the right to respect for their human dignity. They have the right to be heard in questions that concern them, and due weight shall be attached to their views in accordance with their age and development.", "For actions and decisions that affect children, the best interests of the child shall be a fundamental consideration.", "Children have the right to protection of their personal integrity. The authorities of the State shall create conditions that facilitate the child ’ s development, including ensuring that the child is provided with the necessary economic, social and health security, preferably within their own family.”", "It follows from the Supreme Court ’ s case-law – for instance its judgment of 29 January 2015 ( Norsk Retstidende ( Rt .) 2015 page 93, paragraphs 57 and 67) – that the above provisions are to be interpreted and applied in the light of their international law models, which include the Convention and the case-law of the European Court of Human Rights.", "B. Child Welfare Act", "43. The relevant sections of the Child Welfare Act of 17 July 1992 ( barnevernloven ) read as follows:", "Section 4-1. Consideration of the child ’ s best interests", "“When applying the provisions of this chapter, decisive importance shall be attached to finding measures which are in the child ’ s best interests. This includes attaching importance to giving the child stable and good contact with adults and continuity in the care provided ...”", "Section 4-6. Interim orders in emergencies", "“If a child is without care because the parents are ill or for other reasons, the child-welfare service shall implement such assistance as is immediately required. Such measures may not be maintained against the will of the parents.", "If there is a risk that a child will suffer material harm by remaining at home, the head of the child-welfare administration or the prosecuting authority may immediately make an interim care order without the consent of the parents.", "In such a case, the head of the child-welfare administration may also make an interim order under section 4-19.", "If an order has been made under the second paragraph, an application for measures as mentioned in section 7-11 shall be sent to the county social welfare board as soon as possible, and within six weeks at the latest, but within two weeks if it is a matter of measures under section 4-24.", "If the matter is not sent to the county social welfare board within the time-limits mentioned in the fourth paragraph, the order lapses ...”", "Section 4-12 Care orders", "“A care order may be issued", "(a) if there are serious deficiencies in the day-to-day care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development,", "(b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required,", "(c) if the child has been mistreated or subjected to other serious abuse at home, or", "(d) if it is highly probable that the child ’ s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child.", "An order may only be made under the first paragraph when necessary based on the child ’ s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by measures of assistance under section 4-4 or measures under section 4-10 or section 4-11.", "An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7...”", "Section 4-19. Contact rights. Secret address", "“Unless otherwise provided, children and parents are entitled to have contact with each other.", "When a care order has been made, the county social welfare board shall determine the extent of contact, but may, for the sake of the child, also decide that there should be no contact. The county social welfare board may also decide that the parents should not be entitled to know the child ’ s whereabouts.", "...", "The private parties may not demand that a case regarding contact should be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months ...”", "Section 4-21. Revocation of a care order.", "“The county social welfare board shall revoke a care order where it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons [where he or she is living] and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child ’ s foster parents shall be entitled to state their opinion.", "The parties may not demand that a case concerning revocation of a care order shall be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a demand for revocation of the previous order or judgment was not upheld with reference to the first paragraph, second sentence of section 4-21, new proceedings may only be demanded where documentary evidence is provided to show that significant changes have taken place in relation to the child ’ s situation.”", "C. Case-law in respect of the Child Welfare Act", "44. There are several Supreme Court judgments concerning the determination of contact rights under the Child Welfare Act. In its judgment of 10 January 2001 ( Rt. 2001 page 14) the Supreme Court noted that the High Court had limited a mother ’ s contact rights with her child, who had been placed in public care, to two hours, twice a year. In the Supreme Court ’ s opinion, special reasons ( særlige grunner ) had to be adduced for such stringent limitations to be placed on the parent ’ s right to see her child, particularly in the light of her rights under the Convention. It therefore expanded the contact rights to three hours, four times a year.", "45. The Supreme Court again considered the question of contact rights in its judgment of 6 December 2012 ( Rt. 2012 page 1832). It distinguished the extent of contact rights to be established in short-term and long-term placements. Where the placement was short-term, the biological parents should be granted more frequent contact so as to facilitate the return of the child. Where the placement would be long-term, the contact should be less frequent so as to give the child the stability and continuity required to establish a good relationship with his or her foster parents. The Supreme Court cited the travaux préparatoires to the Child Welfare Act, which stated that the purpose of establishing contact rights in such cases was to allow the child to gain a cognitive and intellectual understanding of who his or her biological parents were, not to create or maintain an emotional connection.", "46. In its judgment of 4 May 2015 ( Rt. 2015 page 467) the Supreme Court noted, with reference to its previous decisions, that where it had held that a child ’ s placement in public care must be foreseen to be long-term, it had granted visits from three to six times per year. In its judgment of 23 October 2017 (HR-2017-2015-A), the Supreme Court reiterated, with reference to its 2012-judgment (see paragraph 45 above), that the purpose of establishing contact rights in cases involving long-term placement in care was to allow the child to gain a cognitive and intellectual understanding of who his or her biological parents were, not to create or maintain an emotional connection.", "III. THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "47. The applicants complained that the taking of their child into public care and the granting of limited contact rights had violated their right to respect for family life as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "48. The Government contested that argument.", "A. Admissibility", "49. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "50. The applicants argued that the decision to place A in public care and to award them limited contact rights had represented a disproportionate interference with their right to respect for their family life.", "51. The child-welfare services had had no contact with the applicants prior to A ’ s birth and had never assessed the possibility of implementing assistance measures, apart from the five days that the second applicant had spent at the family centre. No expert had been appointed during the proceedings before the County Social Welfare Board; in that respect the proceedings in the instant case had suffered from shortcomings similar to those identified by the Grand Chamber in the case of Strand Lobben and Others v. Norway ([GC], no. 372823/13, 10 September 2019). During the proceedings before the City Court, the court-appointed expert had concluded that the applicants could provide A with adequate care. Despite the expert ’ s conclusion, which had been based on extensive conversations with the applicants as well as observations, the City Court had upheld the Board ’ s decision to place A in public care. The authorities had failed to adequately consider whether less intrusive measures could have been implemented instead, and had not carried out a genuine balancing exercise in respect of the competing interests at stake in the case.", "52. The applicants had been awarded very limited contact rights because the domestic authorities had considered that A ’ s placement in foster care would be long-term; also in that connection the case bore similarities to that of Strand Lobben and Others, cited above The authorities had not had an adequate evidentiary basis for their conclusion concerning the length of the placement. The extent of the contact rights had been established with a view to providing A with knowledge of her biological origin, rather than facilitating a future reunification of the family.", "(b) The Government", "53. The Government submitted that the decisions to place A in public care and limit the applicants ’ contact rights had been proportional and justified in the circumstances of the case. The Court ’ s judgment in the case of Strand Lobben and Others v. Norway ([GC], no. 372823/13, 10 September 2019) had limited relevance, in particular since that judgment had concerned adoption.", "54. Both the County Social Welfare Board and the City Court had taken the various relevant factors into account and had made detailed references to the available evidence, including the expert ’ s report. The City Court had considered the possibility of assistance measures but had found that they could not be successfully implemented at the time of the decision. The City Court ’ s decision had been informed by its direct access to the parties and the evidence including, inter alia, first-hand observations of the first applicant ’ s conduct during the oral hearing. The applicants had been afforded adequate procedural safeguards. They had been represented by a lawyer throughout the proceedings. Both the Board and the City Court had held oral hearings. The City Court had thoroughly assessed the updated information regarding the applicants ’ positive developments. The fact that no expert had been appointed during the Board ’ s evaluation of the case had not violated the Convention, particularly since an expert had been appointed during the proceedings before the City Court.", "55. The City Court ’ s assessment that the placement would be long-term had been justified in the light of the evidence, and the extent of the applicants ’ contact rights had been determined in the light of the child ’ s need to develop a stable relationship with her foster parents.", "(c) Third-party intervention", "56. The Government of the Czech Republic and the Government of the Slovak Republic emphasised that the taking of a child into public care should normally be considered a temporary measure which should be discontinued as soon as the circumstances permit. The granting of very limited contact rights from the outset of the child being taken into public care could lead to the alienation of the child from his or her biological parents and reduce the possibility that the care order would be rescinded at a later date. The third-party intervenors maintained that the granting of limited contact rights in the instant case was indicative of a systemic practice in Norway which was problematic in the light of the obligation to implement childcare measures in such a way as to facilitate the reunification of the family as soon as possible.", "2. The Court ’ s assessment", "57. It has not been contested by the Government that taking the child into public care and restricting the applicants ’ contact with their daughter had amounted to an “interference” with the applicants ’ right to respect for their family life under Article 8 of the Convention. Nor have the applicants disputed that the measure complained of had been “in accordance with the law” and adopted with the aim of ensuring A ’ s “rights and freedoms” and her “health and morals” under the second paragraph of that provision.", "58. On the basis of the material submitted to it, the Court finds no reason to conclude otherwise, and will accordingly examine whether the interference complained of was “necessary in a democratic society”.", "(a) General principles", "59. The general principles applicable to child welfare measures such as those at issue in the instant case are well-established in the Court ’ s case-law and were recently extensively set out in the case of Strand Lobben and Others v. Norway ([GC], no. 372823/13, §§ 202-13, 10 September 2019, to which reference is made).", "60. In the present case, the Court reiterates that regard to family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8 of the Convention. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible. Moreover, any measure implementing such temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Furthermore, the ties between members of a family, and the prospect of their successful reunification will perforce be weakened if impediments are placed in the way their having easy and regular access to each other ( see Strand Lobben and Others, cited above, §§ 205 and 208).", "(b) Application of those principles to the present case", "61. The Court notes that what is to be examined in the present case is A ’ s placement in care and the determination of the applicants ’ contact rights, decided in the course of the same proceedings.", "62. Starting with the procedure, the Court notes that the case was heard over several days by both the County Social Welfare Board, composed of a lawyer qualified to act as a professional judge, two psychologists and two laypeople, and the City Court, composed of a professional judge, a psychologist and a layperson (see paragraphs 17 and 23 above). An expert was appointed by the City Court, who gave evidence during the proceedings and whose report was extensively referenced in the judgment (see paragraphs 23 and, inter alia, 28 and 33 above). The applicants, both of whom were represented by counsel, were allowed to present evidence and give testimony before both the Board and the City Court. Taking all this into account, the Court finds that the domestic decision-making process was comprehensive and that the applicants were provided with the requisite protection of their interests and fully able to present their case. It further notes that under section 4-21 of the Child Welfare Act (see paragraph 43 above), the applicants could lodge an application to have the care order lifted twelve months after the case had been considered by the courts, and their subsequent application to that effect was successful (see paragraph 40 above). The national procedure accordingly provided the applicants with the requisite protection of their interests.", "63. Turning to the merits of the decision to place A in public care, the Court notes that the City Court found that both applicants had had a history of drug abuse, and that it had been established during the proceedings before it that the first applicant had been “self-medicating” with cannabis on a daily basis (see paragraphs 27 and 32 above). The applicants had been found to be suffering from various psychological problems (see, inter alia, paragraphs 27, 28 and 32), and particularly the treatment of the first applicant was expected to take a considerable amount of time (see paragraph 32 above) The first applicant had also been convicted of serious criminal offences of an antisocial character, including violence and threats, and the City Court held that he had demonstrated a worrying inability to learn from his past actions (see paragraphs 25-26 above). The relationship between the applicants had been volatile both before and during the pregnancy, the police having been called to their home a number of times on account of domestic disturbances. The second applicant had twice sought assistance at a crisis centre while she had been pregnant (see paragraph 19 above).", "64. The Court further observes that the domestic authorities considered whether less intrusive measures could have been utilised, but that they concluded that this would have been impractical since previous attempts to help the applicants overcome their problems concerning drug dependency and mental health had been unsuccessful, and because of the applicants ’ difficulties in cooperating with the child-welfare services (see, inter alia, paragraphs 20 and 34 above, on the Board ’ s decision and the City Court ’ s judgment, respectively). The Court notes in particular that the manager of the municipal child-welfare services had obtained a restraining order against the first applicant due to frightening or threatening messages that he had posted on social media, and that the police had advised the child-welfare services not to visit the applicants ’ home if the police were not present (see paragraphs 26 and 34 above).", "65. Having regard to the detailed reasons given by the County Social Welfare Board and the City Court, the Court is satisfied that the authorities conducted an in-depth examination of the factors relevant to the case. Bearing in mind the margin of appreciation to be afforded to the domestic authorities in cases concerning placement in foster care, the Court finds that relevant and sufficient reasons were adduced for taking A into public care and that the interference with the applicants ’ right to family life was not in that regard disproportionate.", "66. On the basis of the above, the Court finds that there has been no violation of Article 8 of the Convention in respect of the placement of A in public care.", "67. Proceeding to the question of the applicants ’ contact rights, the Court notes that according to the emergency decision taken by the child ‑ welfare services and upheld by the County Social Welfare Board, the applicants were allowed to visit their child for one hour, every other week (see paragraph 10 above). In its later decision regarding the placement of A in foster care, the Board reduced the number of visits to four per year. It found that the foster care would most likely be long-term and that the purpose of the visits with the applicants would therefore be for the applicants and A to get to know each other (see paragraph 21 above). The City Court also considered that the placement would be long-term and that it would therefore not be in A ’ s interests for the applicants to be given extensive contact rights. Emphasising the positive descriptions that had been given of the applicants ’ interactions with A during the contact sessions until then, it increased the duration and number of visits to two hours, six times a year (see paragraph 35 above).", "68. The Court acknowledges that, in the above-mentioned assessments, the domestic authorities adjusted the number and duration of visits in the light of the evidence available to them at the different stages of the proceedings. At the same time, in determining the extent of the applicants ’ contact rights, both the County Social Welfare Board and the City Court largely based their decisions on the consideration that the placement in care would be long ‑ term and that A would therefore require stability in her foster home. It would appear to the Court that, instead of carrying out serious contemplation of the possibility of reunification of the family (see, in particular, Strand Lobben and Others, cited above, § 220), the Board and the City Court implicitly gave up reunification as the ultimate goal at a very early stage, without demonstrating why the ultimate aim of reunification was no longer compatible with A ’ s best interests.", "69. Moreover, it is crucial that the regime of contact effectively supports the goal of reunification until – after careful consideration and also taking account of the authorities ’ positive duty to take measures to facilitate family reunification – the authorities are justified in concluding that the ultimate aim of reunification is no longer compatible with the best interests of the child. The Court emphasises that family reunification cannot normally be expected to be sufficiently supported if there are intervals of weeks, or even – as in the instant case – as much as months, between each contact session. While the domestic authorities were obliged to facilitate contact to the extent possible without exposing A to undue hardship, in order to guard, strengthen and develop family ties, thus enhancing the prospect of being able to reunify the family in the future, the decisions on contact rights in this case aimed instead only at upholding A ’ s cognitive and intellectual understanding of who her parents were (see paragraphs 21 and 35 above). Moreover, and bearing in mind the overarching purpose of contact visits in facilitating the strengthening of family ties, the decision to permit such visits to be invariably supervised by the child care authorities must be justified on special grounds in every case.", "70. The Court does not overlook the fact that the decisions on contact rights taken by the County Social Welfare Board and the City Court did not formally prevent the child-welfare services from organising contact beyond the applicants ’ legal rights, and bears in mind that A was ultimately returned to the applicants. Furthermore, the Court is mindful that in cases such as the present one, there will inevitably be particular circumstances that need to be accommodated, and takes into account that it falls to the domestic authorities to make the proper assessment to that end. However, in the instant case, the Board and the City Court – which had found that A was a normally functioning child whose development was adequate for her age (see paragraph 30 above) and that positive descriptions had been given of the applicants ’ interactions with A during previous visits (see paragraph 35 above) – did not explain, other than with very general references to the child ’ s need for stability, why it would be contrary to A ’ s best interests to see the applicants more than only four or six times a year.", "71. On the basis of the above, the Court finds that there has been a violation of Article 8 of the Convention in respect of the restrictions on contact between the applicants and A.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "72. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "73. The applicants claimed 10,000 euros (EUR) each in respect of non ‑ pecuniary damage.", "74. The Government stated that since an award of non-pecuniary damage was intended to compensate for the actual harmful consequences of a violation, such as distress and frustration, the applicants should be requested to specify the form of non-pecuniary harm at issue.", "75. The Court finds that the applicants must have sustained non ‑ pecuniary damage through distress, in view of the violation found above. It awards them each EUR 10,000 in respect of that damage.", "B. Costs and expenses", "76. The applicants also claimed EUR 2,300 for their lawyer ’ s work in the proceedings before the Court, not including value-added tax (VAT).", "77. The Government did not object to the applicants ’ claim for reimbursement of legal costs.", "78. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the fact that the sums claimed have not been disputed by the Government and the above criteria, the Court considers it reasonable to award the sum of EUR 2,300, not including VAT, to cover costs and expenses for the proceedings before the Court.", "C. Default interest", "79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The first and second applicants reside in Norway. The first applicant was born in 1987 and the second applicant in 1994. The third applicant is their child, X, born in mid-January 2015, and the fourth applicant is the first applicant’s mother, who resides in Slovakia and who was born in 1961. They were represented before the Court by Ms D. Boková, a lawyer practising in Prague.", "3. The Norwegian Government (“the Government”) were represented by Mr M. Emberland of the Attorney General’s Office (Civil Matters) as their Agent, assisted by Ms T. Oulie-Hauge, attorney at the same office.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. On 26 March 2015 the third applicant was taken into emergency foster care. It appears from the decision that the hospital had contacted the child welfare services after the first and second applicants had left the hospital with the child even though the hospital had explained that there were indications that the child needed treatment and was not ready to leave. The child welfare services had since offered a close follow-up to the family, who had needed a lot of practical guidance with regard to the child’s needs concerning food, nursing, sleep and routines. It had been challenging to offer sufficiently concrete guidance and even though the first and second applicants felt more secure in respect of practical matters, they still did not ensure the child’s safety. The first and second applicant still left the child alone at the nursing table or in a sofa and it occurred that the first applicant switched off an alarm which (by vibrating) informed the second applicant that the child was crying. The first applicant had shooed the child when she cried. In addition to the assistance measures attempted, the family had been offered a stay at a family centre, but had refused. The decision also contained a description of how the child had started to develop irregularly because of a lack of interaction with and social stimuli from her caregivers. It was decided not to disclose the foster home’s address to the child’s family, and the first and second applicants were granted rights to contact with the child for one hour every fourteen days, under supervision (see, for further details, paragraph 16 below).", "6. On 31 March 2015 the emergency placement decision was confirmed by the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ). It appears from the Board’s decision that the child welfare services had argued that there were conflicting interests to be balanced concerning the level of contact that should be set, and that they had proposed that the first and second applicants should be given contact rights of one hour every fourteen days.", "7. The emergency placement decision was upheld on review by the District Court ( tingrett ) on 25 June 2015. From the District Court’s judgment it appears that the municipal child welfare services had argued before the court that the second applicant’s contact rights should be reduced to once a month, and that the first applicant should be refused all contact with the child.", "8. The emergency placement decision became final with a decision from the High Court ( lagmannsrett ) of 30 October 2015, in which the first and second applicants were not granted leave to appeal against the District Court’s judgment.", "9. The emergency placement was followed by an application to the Board for a care order on 7 May 2015.", "10. On 26 November 2015 the child welfare services decided to reduce the first and second applicants’ right to contact with the child to one hour every sixth week. That decision was upheld by the Board on 3 February 2016.", "11. The Board rejected the application for a care order on 7 March 2016. It appears from the Board’s decision that the child welfare services had argued that it would be a long-term placement and that special reasons existed for limiting the first and second applicants’ contact with the child to twice a year or less. Following the Board’s decision, the child welfare services increased the level of contact between the first and second applicants and the third applicant to one hour every third week.", "12. On 27 June 2016 the District Court decided that implementation of the Board’s decision should be suspended, before it subsequently, on 26 September 2016, upheld the decision. It appears from the District Court’s judgment that the child welfare services had again argued that it would be a long-term placement and that that consideration had to have consequences for the contact rights. They had maintained that when compelling reasons so required, contact rights could be set at one to two times yearly, and argued that the extent of contact that had been practised until then had to be reduced.", "13. On 4 November 2016 the High Court quashed the District Court’s judgment on procedural grounds, as it considered that one of the judges had been biased. A further appeal to the Supreme Court ( Høyesterett ) was dismissed by the Supreme Court’s Appeals Committee ( Høyesteretts ankeutvalg ) on 13 January 2017.", "14. The case was accordingly to be retried before a first-instance court. It was sent to a different District Court, which held a hearing from 9 to 13 October 2017. The first and second applicants were present, each with legal aid counsel, and gave evidence. Twenty witnesses were heard and an expert psychologist appointed by the District Court attended the hearing and gave a statement. The first and second applicants also called an expert witness. The court-appointed and the privately-appointed experts each provided a written report, which had been submitted to the Commission of Child Welfare Experts ( Barnesakkyndig kommisjon ) for quality checks. The Commission made no significant remarks in respect of the report from the court-appointed expert, whereas it stated that the report from the privately-appointed expert displayed major and serious shortcomings, to the extent that it could only contribute to elucidating the case to a limited degree.", "15. In a judgment of 16 November 2017 the District Court took note of the fact that the third applicant had been in emergency foster care since March 2015 until the time of the court’s judgment. While the case formally concerned placement in public care, regard should therefore also be had to the rules governing the discontinuation of care orders.", "16. The District Court went on to examine and assess the situation of the third applicant, the child; it considered her personality, history, development and possible physical, mental, social and emotional challenges. It observed that there had been no concerns at birth. Two weeks after the birth a midwife had made a note of concerns and, from approximately the same time, a health visitor who had had weekly contact with the family expressed concern as the child did not develop and progress. The health visitor had shown the third applicant to a doctor, who had observed that she made little eye contact and assessed that this did not have physiological causes. The child welfare services had visited the family around late January-early February 2015, and considered that the care situation was adequate. They were concerned, however, about the lack of interaction between the parents and the child.", "17. The District Court and the court-appointed expert agreed with the child welfare services that there were problems in respect of interaction between the parents and the child. Among other evidence, a video recording of interaction between the parents and the child was played before the court, and the court stated in that context that it was aware that it could be challenging to interact with a child when under supervision by strangers. The second applicant also had a hearing disability and used sign language when communicating with the child welfare service staff. The District Court did not consider, however, that the second applicant dealt with X particularly differently when observed and when not. Nor did it consider that her hearing disability had any particular impact on her interaction with the child.", "18. In addition, the District Court took note of the development of the child’s motor skills, which had been delayed at the time when she had been placed in care, a delay that had not yet been fully compensated for. For that reason, referring to the assessments of the court-appointed expert, it considered that the third applicant had elevated care needs. The delay in the development of her motor skills was also a matter which required particular follow-up by her caregivers. The District Court went on to examine the first and second applicants’ caring skills and noted that, while the second applicant had expressed sound opinions on how to care for children in general, she had, according to the court-appointed experts, certain difficulties in understanding X’s needs.", "19. The court-appointed expert had stated that the second applicant had a reduced level of caring skills and she assumed that that was related to the second applicant’s own psychological functioning, possibly due to difficult and traumatic experiences in her own upbringing. She did not find that the second applicant’s hearing difficulties had any impact. The District Court agreed with the expert on those points. As for the first applicant, the expert had assessed him as also having reduced caring skills, which were insufficient to meet X’s needs. The expert had been particularly concerned with the first applicant’s understanding of X’s situation and needs, and his capacity to reflect and cooperate. The District Court stated that both the expert and the child welfare services had found it particularly challenging that the first applicant was intense and invasive towards X.", "20. The District Court further found that circumstances had improved with the contact sessions that had been carried out. X nonetheless still suffered adverse reactions after the contact sessions, a considerable part of which had to be attributed to the first and second applicants’ conduct during the sessions. The court also took into account that the first and second applicants had received extensive assistance and guidance, in particular with respect to how to act sensitively towards X. They had not been capable of benefiting from these measures.", "21. Overall, the District Court found that there would be serious deficiencies in X’s care if she were returned to the first and second applicants.", "With regard to the question of contact rights, the District Court stated the following:", "“ Contact", "The first paragraph of section 4-19 of the Child Welfare Act states that parents and children are generally entitled to have contact with each other. In our case, there is also no disagreement that the child should have contact with her biological parents if the court decides to take the child into care, but the disagreement concerns the extent of the contact. The municipality has entered a statement of claim that the contact be set at three times a year for one hour at a time, while the parents have requested that the contact be as extensive as possible.", "When it comes to the further determination of the contact, it must be based on section 4-1 of the Child Welfare Act, which states that decisive importance shall be attached to the child’s best interests. A key factor in this assessment is the purpose of the care decision and its estimated duration. The Supreme Court’s judgment in Rt. 1998 page 787, states the following about the importance of the expected duration of the care order:", "‘In cases where the care order is assumed to be temporary and return is expected to take place within a reasonable time, care should be taken to maintain the best possible contact between the biological parents and the child, see the statements in the Official Norwegian Report (NOU) 1985: 18, page 162. This indicates gradually more frequent contact of a somewhat longer duration. If return cannot be expected or a return lies far ahead in time, contact is to be aimed at making the child aware of his or her biological origin with a view to a possible later attachment as the child grows up. The main objective over time must be that also more limited contact works in the best interests of the child based on the child’s feelings, interests and needs.’", "The court finds that for [X] it is a matter of permanent placement, for growing up. Almost three years have elapsed since the emergency decision, and as mentioned before, the parents have not come in a position in which they can exercise caring responsibilities for [X] despite long-standing and comprehensive guidance.", "The purpose of contact in our case will then be to maintain a relationship between [X] and the parents, taking into account [X]’s need to further develop a good attachment to the foster home, and to ensure her stability and security. The evidence presented at the main hearing has shown that the contact sessions have been of varying quality, and [X] has, as mentioned, shown reactions after contact. The court agrees with the expert that contact every three weeks, as it has been taking place so far, is too frequent. [X] needs calm and stability to continue to form an attachment to her caregivers. It is of the utmost importance that [X] develop as much as possible undisturbed by the stresses caused by contact. Her development since the foster home placement has been positive, and the court considers it of fundamental importance that [X] be spared frequent stress factors that will have a negative impact on her development. [X] is a vulnerable child in need of calm and predictability, and the court refers to the descriptions of her above. In addition, the parents’ skills relating to contact are limited. The court has previously described contact sessions that have been very stressful for [X], because they become intense and the parents show little sensitivity to [X]’s needs.", "The court has therefore concluded that the number of annual contact sessions should be set at three per year for one hour at time.", "The child welfare services are given the opportunity to supervise. This is primarily because it still seems that the parents are unable to avoid subjecting [X] to the stresses described above, and because the parents, especially the father, are highly antagonistic towards the child welfare service. The court is not confident that the parents are able to adequately protect [X] during contact.”", "22. The District Court also authorised the non ‑ disclosure of the foster home’s address by reference to:", "“... the pressure that remains in the case from the parents and the circle around them, and to [X]’s need for peace and quiet. The court considers it a necessary protection for the foster family that their address and identity are not known to the parents, while the court does not find the parents’ need to know the address and identity to be sufficiently compelling.”", "23. Lastly, the District Court decided that the contact arrangement which it had decided on in the judgment should take effect immediately, that is, before the judgment would otherwise become final.", "24. On 20 March 2018 the High Court refused leave to appeal against the District Court’s judgment, and on 12 June 2018 the Supreme Court’s Appeals Committee dismissed the first and second applicants’ appeal against the High Court’s decision." ]

[ "RELEVANT LEGAL FRAMEWORK", "25. Under section 4-12 of the Child Welfare Act of 1992 ( barnevernloven ), a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security needed by the child according to his or her age and development. Under section 4-21 the parties may request the County Social Welfare Board to discontinue public care provided that at least twelve months have passed since the Board or the courts last considered the matter. Contact rights between a child in public care and his or her parents are regulated by section 4-19, in accordance with which the extent of contact rights is decided by the Board. By virtue of the same provision, the private parties can require that contact rights also be reconsidered by the Board, provided that at least twelve months have passed.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "26. The applicants complained that the proceedings concerning public care of the third applicant, X, and the measures adopted therein, notably the care order in respect of X and the limitations imposed on the first and second applicants’ right to contact with X, had violated their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "The parties’ submissions", "(a) The Government", "27. The Government argued that the fourth applicant had not satisfied the admissibility criteria in Articles 34 and 35 of the Convention. They observed that the fourth applicant had never been a party to any of the domestic proceedings complained of, nor had she ever attempted to become a party. Although the Government did not formally contest the admissibility of the complaint lodged on behalf of the child, the third applicant, they further emphasised that there was a conflict of interest between her and the other applicants, which the Court should take into consideration.", "(b) The applicants", "28. The applicants argued that there was no conflict of interest between the third applicant and the other applicants. As to the fourth applicant, they stated that she could only have applied for contact rights after the decisions complained of had become final. However, she would not have had a legal right to contact and it was not clear whether she would have been given legal aid had she sought to institute any proceedings. The fourth applicant had also been afraid that instituting proceedings might have been to the detriment of the first and second applicants in their proceedings.", "(c) The Court’s assessment", "29. The Court finds that, as to the application having been lodged on behalf of the third applicant by her parents, the first and second applicants, its findings in Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 156-59, 10 September 2019) apply also to the present case, the differences in the type of childcare measures at issue in this case and in Strand Lobben and Others notwithstanding. The Court discerns no conflict of interest in the present case that would require it to dismiss the first and second applicants’ application on behalf of the third applicant and there are accordingly no grounds for declaring the application lodged on behalf of the child inadmissible.", "30. With regard to the fourth applicant, the Court notes that in so far as she was not a party to the domestic proceedings complained of and did not seek to become a party to those proceedings, and as she has also failed to institute other proceedings or in any other manner to bring her Convention grievances before the domestic authorities, she cannot be considered to have exhausted all domestic remedies within the meaning of Article 35 of the Convention. The application in so far as it concerns the fourth applicant must accordingly be declared inadmissible.", "31. The complaint lodged under Article 8 of the Convention is otherwise neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention and must be therefore be declared admissible in respect of the first to third applicants.", "MeritsThe parties’ and third parties’ submissions", "The parties’ and third parties’ submissions", "The parties’ and third parties’ submissions", "(a) The applicants", "32. The applicants submitted that the proceedings had not been conducted in accordance with normal procedures as set out in domestic guidelines on dealing with child welfare cases where children had a connection to other countries, particularly as the domestic authorities had not investigated the situation of the child’s relatives in Slovakia and whether the child could have been sent to live with relatives in Slovakia.", "33. The applicants further argued that there had not been any evidence to show that the parents had posed a risk to the child’s health or development. They also pointed out that the parents had planned to be supported by the child’s grandmother – the fourth applicant – who had had medical education.", "34. With regard to contact rights, the applicants emphasised that the present case differed from Levin v. Sweden (no. 35131/06, 15 March 2012) and S.J.P. and E.S. v. Sweden (no. 8610/11, 28 August 2018). They also argued that there had been no need to protect the third applicant from her parents in this case.", "(b) The Government", "35. The Government emphasised that domestic authorities are faced with an extremely difficult dilemma, in so far as failures to act in order to protect children could result in violations of the children’s rights, while interferences in family life in order to protect children could also raise difficult questions.", "36. In the instant case, the emergency placement of X had been necessary owing to the serious deficiencies in the care provided by the first and second applicants and the fact that assistance measures had proved unsuccessful. The domestic authorities, having carefully considered all aspects of the case and having focused on the child’s best interests, had provided relevant and sufficient reasons to show the necessity for the placement.", "37. The Government also maintained that relevant and sufficient reasons had been provided in respect of the limitations on contact rights. The placement in foster care had been considered to be a long term one because the parents, despite long-standing and comprehensive guidance, had not put themselves in a position where they could exercise caring responsibilities with regard to X. Sufficient reasons had also been provided for the decision to authorise the municipality to supervise the contact sessions, as the parents had been found to be unable to avoid subjecting X to stress, and as they, especially the child’s father, had behaved highly antagonistically towards the child welfare services. It had also been necessary to place X in a foster home at an undisclosed address because of the pressure that remained in the case from the parents and the people close to them, and the child’s need for peace and quiet.", "38. The Government further argued that the domestic authorities had not planned for X not to be returned to her parents. The District Court’s finding that the placement was “permanent” and “for growing up” did not mean that it had given up on the possibility of reunification. The level of contact had been decided on the basis of a concrete assessment at the time of the judgment, and the child welfare services had a continuous obligation to consider if new circumstances required a change to the previous assessments.", "39. In addition, the Government submitted that the decision-making process had been fair and had afforded due respect to the applicants’ rights under Article 8 of the Convention. In-depth examinations had been carried out in the course of the proceedings, in which the applicants had been fully involved and in which, among other things, various specialists had been involved.", "(c) The third-party interveners", "40. The Government of the Slovak Republic submitted that they had welcomed the Court’s judgment in Strand Lobben and Others (cited above), and the general principles stated therein, which had been applied to subsequent cases concerning child welfare measures adopted by the authorities of the respondent State. They further made reference to a number of measures that the Slovak authorities had taken towards the Norwegian authorities in the context of the instant case. Stating that they fully respected the competence of the Norwegian authorities with regard to the childcare issue in this case, the Slovak Government submitted that it was important to assess the facts in terms of the duty on the authorities to perform a genuine balancing exercise between the interests of the child and her biological family, and especially in terms of the positive duty on the authorities to take measures to facilitate family reunification as soon as reasonably feasible.", "41. The other third-party interveners – the Government of the Czech Republic and the Ordo Iuris Institute for Legal Culture – primarily made submissions with regard to the general principles on the basis of which complaints about proceedings concerning childcare measures are to be examined. Ordo Iuris also made a comparative study of public childcare practices in Norway and Poland.", "The Court’s assessment", "(a) Interference, accordance with the law and legitimate aim", "42. The Court finds that it cannot be called into question that the proceedings complained of and the measures adopted therein entailed an “interference” with the first to third applicants’ right to respect for their family life as guaranteed by Article 8 of the Convention, that that interference was in accordance with the law, namely the Child Welfare Act (see paragraph 25 above), and that it pursued the legitimate aim of protecting the third applicant’s “health” and her “rights”. The remaining question is whether the interference was proportionate and “necessary in a democratic society” within the meaning of the second paragraph of Article 8.", "(b) Necessary in a democratic society", "43. The Court notes that the general principles applicable to cases involving child welfare measures (including measures such as those at issue in the present case) are well established in the Court’s case-law, and were extensively set out in Strand Lobben and Others (cited above, §§ 202-213), to which reference is made. The principles have since been reiterated and applied in, inter alia, K.O. and V.M. v. Norway (no. 64808/16, §§ 59-60, 19 November 2019); A.S. v. Norway (no. 60371/15, §§ 59-61, 17 December 2019); Pedersen and Others v. Norway (no. 39710/15, § 60-62, 10 March 2020); Hernehult v. Norway (no. 14652/16, § 61-63, 10 March 2020); M.L. v. Norway (no. 64639/16, §§ 77-81, 22 December 2020); and Abdi Ibrahim v. Norway ([GC], no. 15379/16, § 145, 10 December 2021).", "44. As the Court held in Strand Lobben and Others, cited above, § 203, in determining whether the measures complained of were necessary in a democratic society, the Court considers whether, in the light of the case as a whole, the reasons adduced to justify those measures were relevant and sufficient for the purposes of paragraph 2 of Article 8, whether they corresponded to a pressing social need and whether they were proportionate to the legitimate aim pursued. As regards the decisions taken by the District Court, which gave what became the final judgment on the merits, to issue a care order and limit the first and second applicants’ contact rights to one hour, three times yearly, the Court will examine both decisions in turn (see, similarly, for example K.O. and V.M. v. Norway, cited above), but keeps in mind that the two decisions are interrelated as well as both intrinsically linked to how the child welfare case had proceeded until then (see, mutatis mutandis, Hernehult, cited above, § 64, and paragraph 46 below).", "45. Turning to the facts of the instant case, the Court observes that the impugned care order in respect of the third applicant, X, was, because the child welfare services’ application for the order had originally been dismissed by the County Social Welfare Board on 7 March 2016 (see paragraph 11 above), first issued by the District Court in its judgment of 16 November 2017, which also became the final decision on the merits (see paragraph 24 above). That judgment was given after the District Court had conducted an extensive hearing where numerous witnesses had given evidence and two experts had participated (see paragraph 14 above). The Court does not find any basis for considering that the first and second applicants, who attended with their legal aid counsel and gave evidence, were not allowed to fully participate in that decision-making process or that that process did not sufficiently protect their interests.", "46. Furthermore, as concerns the merits of that judgment, the Court takes note that the District Court essentially found that a care order was necessary because the child lagged behind in development, which was deemed to have a connection with insufficient parent-child interaction (see paragraphs 16-17 above). The District Court also found that there would be serious deficiencies in X’s care if she were returned to the first and second applicants (see, inter alia, paragraph 21 above). In making those findings, the District Court relied on psychological expertise (see, inter alia, paragraphs 14, 17 and 19 above). Bearing in mind the wide margin of appreciation afforded to domestic authorities in respect of care orders, and taking into account the fact that the national authorities had the benefit of direct contact with all the persons concerned at the very stage when the measures were envisaged and implemented, the Court finds that the reasons advanced in respect of the care order were relevant and, if viewed in isolation, sufficient. In its overall assessment, the Court takes note however that the care order was issued after a long period during which a far-reaching interference with the applicant family’s right to respect for their family life had already been in place, in particular in so far as an emergency care order accompanied by a decision to limit parent-child contact to one hour every fourteen days had been issued already some two and a half months after the child was born (see paragraph 5 above).", "47. Turning to the issue of contact rights, the Court notes that in its judgment of 16 November 2017, the District Court set the first and second applicants’ contact rights at one hour, three times yearly, under supervision (see paragraph 21 above).", "48. As a starting point, the Court has found that such severe limitations imposed on contact between parents and children in the context of childcare measures are normally incompatible with the aim of reunification and the principle that care orders should seek as far as possible to be temporary measures. It has emphasised that it is crucial that the contact regime, without exposing the child to any undue hardship, effectively supports the goal of reunification until – after careful consideration, and taking account of the authorities’ positive duty to take measures to facilitate family reunification – the authorities are justified in concluding that the ultimate aim of reunification is no longer compatible with the best interests of the child. Family reunification cannot normally be expected to be sufficiently supported if there are intervals of weeks, or even months, between each contact session (see K.O. and V.M. v. Norway, cited above, § 64, and M.L. v. Norway, cited above, § 79).", "49. Indeed, the Court reiterates that it is mindful that in cases such as the present one, there will inevitably be particular circumstances that need to be accommodated, and takes into account that it falls to the domestic authorities to make the proper assessment to that end (see, for example, K.O. and V.M. v. Norway, cited above, § 70). In that context, the Court observes that, in the instant case, the first and second applicants had had more extensive contact rights during the emergency placement, which had lasted for a prolonged period because the District Court’s judgment, in which it upheld the Board’s refusal to issue a care order, was quashed due to a problem of judicial bias and the case therefore had to be reheard (see paragraphs 11-14 above).", "50. However, the fact remains that when the care order was issued, the District Court, in imposing the limitations in question on the first and second applicants’ contact rights, contrary to the starting point mentioned above (see paragraph 47), appears rather to have proceeded on the basis that the purpose of future contact would only be to maintain a relationship between X and her parents and only to the degree that it would not prevent X from growing attached to her foster parents – instead of examining whether any other arrangement could have contributed to avoiding the permanency that it envisioned. In the District Court’s view, X was to grow up in foster care (see paragraph 21 above).", "51. In the light of the above, the Court notes the similarity between the facts of this case, with regard to the justifications given for the decision to severely limit the right to contact between the parents and their child, and those given in other cases against the respondent State in which shortcomings relating to justifications provided by the domestic authorities for the establishment of particularly restrictive contact regimes based on conclusions already reached when children have been taken into care, to the effect that the care orders are likely to be long term, have either in themselves led to the finding of a violation (see K.O. and V.M. v. Norway, cited above, §§ 67-71) or formed important parts of the context in which violations have occurred (see Strand Lobben and Others, cited above, §§ 221 and 225; Pedersen and Others, cited above, §§ 67-69; Hernehult, cited above, §§ 73-74; and M.L. v. Norway, cited above, §§ 92-94). Against that background, the Court does not find that the decision on contact rights in this case stands up to the “stricter scrutiny” that is required by the Court in cases where such far-reaching measures as those adopted in this case have been imposed (see, for example, Strand Lobben and Others, cited above, § 211). Accordingly, the Court finds that there has been a violation of Article 8 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "52. The applicants complained that the proceedings had not been carried out in accordance with the “reasonable time” requirement as provided in Article 6 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "53. The applicants argued that the proceedings had taken an unreasonably long time. They pointed out that the periods of time in between decisions taken had been disproportionate in a case involving a small child.", "54. The Government submitted that although the lapse of time in the domestic proceedings had exceeded that of a standard care order case, that was due to the circumstances and, in part, to the conduct of the first and second applicants. There had in any event not been any inactivity on part of the domestic authorities.", "55. The Court reiterates that the reasonableness of the length of proceedings is to be determined in the light of the circumstances of the case and with reference to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Silva Pontes v. Portugal, 23 March 1994, § 39, Series A no. 286-A).", "56. With regard to the instant case, the Court observes that the emergency placement decision was taken on 26 March 2015 (see paragraph 5 above). The first and second applicants appealed against the decision and while the appeal was pending, the child welfare services applied for a care order on 7 May 2015. The care order proceedings became final with the Supreme Court’s decision of 12 June 2018 (see paragraph 22 above). Due to the close connection between the emergency placement decision and the care order proceedings in the instant case, the Court considers that the period to be taken into account should span from the emergency decision to the final decision in the care order proceedings, that is somewhat short of three years and three months.", "57. The Court further notes that the proceedings concerned matters where the daily care of the first and second applicants’ young child was at stake, but considers at the same time that the proceedings concerned a case of considerable complexity and notes that it involved, for example, observations of the parents and the child by experts (see paragraph 14 above). During the relevant time period, the emergency placement decision was reviewed on appeal at several levels of jurisdiction, as was the care order, on all occasions on the basis of the situation at the time of the relevant decision. Furthermore, the Court does not find that the applicant has shown any periods of real inactivity as such; the reason why the childcare case took a longer time than expected was essentially the High Court’s finding that one of the judges on the District Court’s bench had been biased – a finding that the first and second applicants appealed against to the Supreme Court – which entailed the District Court having to conduct a second hearing (see paragraph 13 above). Whereas there was accordingly a procedural error that contributed to the length of the proceedings, the authorities responded to that error in an acceptable manner.", "58. Viewing the circumstances of the case as they have been presented to the Court by the parties, the Court does not find that the application discloses any appearance of a violation of Article 6 of the Convention as concerns the length of the proceedings. It follows that the complaint under Article 6 is inadmissible for being manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "59. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "60. The applicants claimed 50,000 euros (EUR) each in respect of non-pecuniary damage.", "61. The Government stated in response that they were satisfied that the Court, in the event of it finding a violation, would ensure that any award of just satisfaction would be in accordance with its case-law.", "62. The Court considers that the first and second applicants must have sustained non-pecuniary damage through distress, in view of the violation found above (see paragraphs 43-51). It awards them jointly EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. In respect of X, having regard to her age at the relevant time and to the fact that she did not experience the procedures in question in the same way as the first and second applicants, the Court finds that a finding of violation can be regarded as sufficient just satisfaction.", "Costs and expenses", "63. In respect of costs and expenses, the applicants requested, firstly, recovery of EUR 8,399.32 for what was stated as “legal representation in Norway”. In addition, they requested EUR 675 for what was stated as “representation before the Court”, in addition to the expenses covered by the Court’s legal aid scheme. The applicants also requested that a sum amounting to 15 per cent of the award in respect of non-pecuniary damage be awarded to them because of an agreement with counsel. They asked for EUR 2,949.78 to be awarded in respect of “cash expenses”, most of which apparently related to proceedings in Norway, including expenses for persons who had given evidence before the domestic courts, but also to translation of the Government’s observations before the Court that had been submitted in English.", "64. The Government submitted that it did not appear from the applicants’ claim whether the “legal representation in Norway” was actually connected to the case before the Court. They further stated that they had not had any possibility to examine the agreement between the applicants and counsel. The Government additionally maintained that they were satisfied that the Court would ensure that the applicants’ recovery of costs and expenses in the event of a violation would align with what was necessary and reasonable.", "65. As concerns the costs relating to “legal representation in Norway”, the Court observes that the first and second applicants were granted legal aid by the domestic authorities and notes that the applicants have not provided any explanation as to why they would have had further costs. It accordingly does not have any basis for concluding that the applicants’ claim may be met in so far as it refers to domestic proceedings, whether it concerns lawyers’ fees or other expenses. Furthermore, the Court notes that the applicants, under the heading “legal representation in Norway”, have submitted a bill addressed to the fourth applicant amounting to 46,093.75 Norwegian kroner (NOK) (approximately EUR 4,700), which refers principally to exchanges of emails with Norwegian lawyers in June and July 2018. While the Court observes that the bill has been labelled “application to the European Court of Human Rights”, it is nonetheless, without any further explanation, unable to decide that these are costs that have reasonably and necessarily been occurred by the first and second applicants in connection with the application now decided.", "66. With regard to the agreement between the applicants and counsel, the Court is not bound by it (see, mutatis mutandis, Strand Lobben and Others, cited above, § 234), and, taking into account, inter alia, that it does not appear to have any connection to actual costs or expenses, the Court does not find that the “success fee” it includes can reasonably be awarded.", "67. Turning to the costs relating to fees for “representation before the Court”, the Court notes that the bills submitted to support the claim include, for example, costs for work carried out in 2017, when the domestic proceedings were still pending. On the basis of the documents provided to it, the Court finds that it is necessary and reasonable to award EUR 500 out of the EUR 675 claimed in this respect, payable to the first and second applicants.", "68. It follows that the Court will award EUR 500 in respect of costs and expenses jointly to the first and second applicants, plus any tax that may be chargeable to them.", "Default interest", "69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "A. The applicant ’ s punishment", "9. Mr. Anthony M. Tyrer, a citizen of the United Kingdom born on 21 September 1956, is resident in Castletown, Isle of Man. On 7 March 1972, being then aged 15 and of previous good character, he pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his school. The assault, committed by the applicant in company with three other boys, was apparently motivated by the fact that the victim had reported the boys for taking beer into the school, as a result of which they had been caned. The applicant was sentenced on the same day to three strokes of the birch in accordance with the relevant legislation (see paragraph 11 below).", "He appealed against sentence to the Staff of Government Division of the High Court of Justice of the Isle of Man. The appeal was heard and dismissed on the afternoon of 28 April 1972; the court considered that an unprovoked assault occasioning actual bodily harm was always very serious and that there were no reasons for interfering with the sentence. The court had ordered the applicant to be medically examined in the morning of the same day and had before it a doctor ’ s report that the applicant was fit to receive the punishment.", "10. After waiting in a police station for a considerable time for a doctor to arrive, Mr. Tyrer was birched late in the afternoon of the same day. His father and a doctor were present. The applicant was made to take down his trousers and underpants and bend over a table; he was held by two policemen whilst a third administered the punishment, pieces of the birch breaking at the first stroke. The applicant ’ s father lost his self-control and after the third stroke \"went for\" one of the policemen and had to be restrained.", "The birching raised, but did not cut, the applicant ’ s skin and he was sore for about a week and a half afterwards.", "11. The applicant was sentenced pursuant to section 56 (1) of the Petty Sessions and Summary Jurisdiction Act 1927 (as amended by section 8 of the Summary Jurisdiction Act 1960) whereby:", "\"Any person who shall -", "(a) unlawfully assault or beat any other person;", "(b) make use of provoking language or behaviour tending to a breach of the peace, shall be liable on summary conviction to a fine not exceeding thirty pounds or to be imprisoned for a term not exceeding six months and, in addition to, or instead of, either such punishment, if the offender is a male child or male young person, to be whipped.\"", "The expressions \"child\" and \"young person\" mean, respectively, an individual of or over the age 10 and under 14 and an individual of or over the age of 14 and under 17.", "12. Execution of the sentence was governed by the following provisions:", "(a) Section 10 of the Summary Jurisdiction Act 1960", "\"(a) the instrument used shall, in the case of a child, be a cane, and in any other case shall be a birch rod;", "(b) the court in its sentence shall specify the number of strokes to be inflicted, being in the case of a child not more than six strokes, and in the case of any other person not more than twelve strokes;", "(c) the whipping shall be inflicted privately as soon as practicable after sentence and in any event shall not take place after the expiration of six months from the passing of the sentence;", "(d) the whipping shall be inflicted by a constable in the presence of an inspector or other officer of police of higher rank than a constable, and, in the case of a child or young person, also in the presence if he desires to be present, of the parent or guardian of the child or young person.\"", "(b) Directive of the Lieutenant-Governor, dated 30 May 1960", "\"l. The instruments to be used shall be: -", "(i) in the case of a male child who is under the age of 14 years, a light cane not exceeding four feet in length and not exceeding half an inch in diameter,", "and", "(ii) in the case of a male person who is of the age of 14 years but is under the age of 21 years a birch rod of the following dimensions:", "Weight not exceeding 9 ounces", "Length from end of handle to tip of spray 40 inches", "Length of handle 15 inches", "Circumference of spray at centre 6 inches", "Circumference of handle at top of binding 3 1/2 inches", "Circumference of handle 6 inches from end 3 1/4 inches", "2. In all cases where a Court is empowered to impose a sentence of whipping a medical report as to whether the offender is fit to receive the punishment will be made available to the Magistrates before they consider sentence. Arrangements for this report will be made by the Clerk of the Court.", "3. The whipping shall be inflicted on the posterior over the child ’ s ordinary cloth trousers.", "4. A medical practitioner shall be present during a birching and may at his discretion order the stopping of the punishment at any time. Where a birching has been stopped on medical grounds a report of the facts shall be forwarded immediately to His Excellency.\"", "With reference to paragraph 3 of the Directive, the Court was advised at the hearing on 17 January 1978 that, in the light of the Commission ’ s report, an amendment had recently been made by the Isle of Man Government whereby the punishment is to be administered over ordinary cloth trousers in all cases irrespective of the offender ’ s age.", "B. General background", "13. The Isle of Man is not a part of the United Kingdom but a dependency of the Crown with its own government, legislature and courts and its own administrative, fiscal and legal systems. The Crown is ultimately responsible for the good government of the Island and acts in this respect through the Privy Council on the recommendation of Ministers of the United Kingdom Government in their capacity as Privy Counsellors. In that capacity, the Home Secretary is charged with prime responsibility for Isle of Man affairs.", "Prior to October 1950, the United Kingdom Government regarded international treaties applicable to the United Kingdom as extending, in the absence of contrary provision, to the Isle of Man. Thereafter, they no longer so regarded such treaties unless there were an express inclusion and they treated the Island as a territory for whose international relations they were responsible. In fact, by letter dated 23 October 1953 addressed to the Secretary-General of the Council of Europe, the Government of the United Kingdom declared, in accordance with Article 63 (art. 63) of the Convention, that the Convention should extend to a number of such territories, including the Isle of Man.", "The Island ’ s parliament, the Court of Tynwald, is one of the oldest in Europe. It consists of a Lieutenant-Governor appointed by and representing the Crown, an Upper House (the Legislative Council) and a Lower House (the House of Keys). Tynwald legislates in domestic matters, the laws it adopts requiring ratification by the Queen in Council; the Home Secretary is responsible for advising the Privy Council whether or not to recommend that the Royal Assent be given.", "In strict law, the United Kingdom Parliament has full power to pass laws applicable to the Isle of Man but, by constitutional convention, does not in the ordinary course legislate on the Island ’ s domestic affairs, such as penal policy, without its consent. This convention would be followed unless it were overridden by some other consideration, an example of which would be an international treaty obligation.", "14. Judicial corporal punishment of adults and juveniles was abolished in England, Wales and Scotland in 1948 and in Northern Ireland in 1968. That abolition followed upon the recommendations of the Departmental Committee on Corporal Punishment (known as the Cadogan Committee) which issued its report in 1938. The standing Advisory Council on the Treatment of Offenders, in its report of 1960 (known as the Barry report), endorsed the findings of the Cadogan Committee and concluded that corporal punishment should not be reintroduced as a judicial penalty in respect of any categories of offencers or of offenders.", "15. The punishment remained in existence in the Isle of Man. When Tynwald examined the question in 1963 and 1965, it decided to retain judicial corporal punishment, which was considered a deterrent to hooligans visiting the Island as tourists and, more generally, a means of preserving law and order.", "In May 1977, by thirty-one votes for and only one against, Tynwald passed a resolution, inter alia,", "\"that the retention of the use of judicial corporal punishment for crimes of violence to the person is a desirable safeguard in the control of law and order in this Island and Tynwald hereby re-affirms its policy to retain the use of judicial corporal punishment for violent crimes to the person committed by males under the age of 21\".", "At the hearing on 17 January 1978, the Attorney-General for the Isle of Man informed the Court that recently a privately organised petition in favour of the retention of judicial corporal punishment had obtained 31,000 signatures from amongst the approximate total of 45,000 persons entitled to vote on the Island.", "16. While under various provisions judicial corporal punishment could be imposed on males for a number of offences, since 1969 its application has apparently been restricted in practice to offences of violence.", "During his address to the Court, the Attorney-General for the Isle of Man indicated that the Manx legislature would shortly be considering the Criminal Law Bill 1978 which contained a proposal to limit the use of judicial corporal punishment to young males for certain specified offences only, on the whole the more serious offences of violence. The offence with which the applicant was charged had been omitted from the specified list of offences.", "17. The name and address of a juvenile sentenced in the Isle of Man, whether to corporal punishment or otherwise, are not published.", "18. According to figures cited before the Court by the Attorney- General for the Isle of Man, judicial corporal punishment was inflicted in 2 cases in 1966, in 4 cases in 1967, in 1 case in 1968, in 7 cases in 1969, in 3 cases in 1970, in 0 cases in 1971, in 4 cases in 1972, in 0 cases in 1973, in 2 cases in 1974, in 1 case in 1975, in 1 case in 1976 and in 0 cases in 1977. The average number of crimes of violence to the person per annum was: between 1966 and 1968 - 35; between 1969 and 1971 - 52; between 1972 and 1974 - 59; and between 1975 and 1977 - 56. In 1975 there were 65 crimes of violence to the person, in 1976 58 and in 1977 approximately 46.", "In the three years 1975 to 1977, only one young male was convicted of a crime of violence.", "At the 1976 census, the Island ’ s population stood at 60,496." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "19. In his application, lodged with the Commission on 21 September 1972, Mr. Tyrer complained, in particular, that:", "- his judicial corporal punishment constituted a breach of Article 3 (art. 3) of the Convention;", "- such punishment was destructive of family well-being and therefore contrary to Article 8 (art. 8) of the Convention;", "- no remedies existed to rectify the violation, which was inconsistent with Article 13 (art. 13) of the Convention;", "- the punishment was discriminatory within the meaning of Article 14 (art. 14) of the Convention in that it was primarily pronounced on persons from financially and socially deprived homes;", "- the violation of Article 3 (art. 3) also constituted a violation of Article 1 (art. 1) of the Convention.", "The applicant also claimed damages as well as repeal of the legislation concerned.", "20. In its decision of 19 July 1974, the Commission, having considered ex officio that the facts of the case raised issues of discrimination on grounds of sex and/or age contrary to Article 14 of the Convention, taken together with Article 3 (art. 14+3):", "- decided not to proceed further with an examination of the original complaint under Article 14 (art. 14) which the applicant had subsequently withdrawn;", "- declared admissible and retained those parts of the application which raised issues under Article 3 (art. 3), either alone or in conjunction with Article 14 (art. 14+3);", "- declared inadmissible the remainder of the application.", "21. In January 1976, the Commission was notified that the applicant wished to withdraw his application. However, on 9 March 1976, the Commission decided that it could not accede to this request \"since the case raised questions of a general character affecting the observance of the Convention which necessitated a further examination of the issues involved\". The applicant took no further part in the proceedings.", "22. In its report of 14 December 1976, the Commission expressed the opinion:", "- by fourteen votes to one, that the judicial corporal punishment inflicted on the applicant was degrading and was in breach of Article 3 (art. 3) of the Convention;", "- that it was not necessary, in view of the preceding conclusion, to pursue an examination of the issue under Article 14 (art. 14) of the Convention;", "- as regards Article 63 para. 3 (art. 63-3 ) of the Convention, that there were not any significant social or cultural differences between the Isle of Man and the United Kingdom which could be relevant to the application of Article 3 (art. 3) in the present case.", "The report contains one separate opinion.", "AS TO THE LAW", "I. PRELIMINARY QUESTIONS", "A. The Court ’ s jurisdiction", "23. During the hearing of 17 January 1978, reference was made to the fact that the declaration by the Government recognising the jurisdiction of the Court as compulsory in respect of the Isle of Man expired on 13 January 1976, whereas the case was brought before the Court by the Commission on 11 March 1977.", "In its request to the Court, the Commission indicated that it had had regard to the various renewals of the said declaration and particularly the renewal dated 21 April 1972 which was in force at the time of the introduction of the application before the Commission. For their part, the Government, which had not filed any preliminary objection pursuant to Rule 46 of the Rules of Court, stated at the hearing that they consented to the Court having jurisdiction in accordance with Article 48 (art. 48), although it was not to be inferred that they necessarily agreed with the reasoning in the Commission ’ s request.", "The Court finds that in these circumstances its jurisdiction is established.", "B. The request to strike the case out of the Court ’ s list", "24. The Attorney-General for the Isle of Man first submitted that the Court should strike the case out of its list in view of the fact that Mr. Tyrer, who had lodged his application with the Commission when he was under age, had declared, after he had attained full age, that he wished to withdraw it.", "On 9 March 1976, the Commission had decided, pursuant to the then Rule 43 of its Rules of Procedure, that it could not accede to the applicant ’ s request since the case raised questions of a general character affecting the observance of the Convention which necessitated a further examination of the issues involved (see paragraph 21 above). Before the Court, the principal delegate submitted that the applicant ’ s wishes must be subordinated to the general interest to ensure respect for human rights as defined in the Convention. He added that the Commission had never examined the reasons for, and circumstances surrounding, the applicant ’ s request.", "The Attorney-General for the Isle of Man conceded that, under its Rules of Procedure, the Commission was entitled to refuse, on the grounds mentioned above, to allow Mr. Tyrer to withdraw. He did not suggest that there had been any irregularity in the Commission ’ s decision; he merely contended that in the particular circumstances the applicant ’ s wishes should supersede the general character of the case and that therefore the Court should consider striking the case out of its list under Rule 47 of its Rules.", "25. The regularity of the Commission ’ s decision to continue its examination of the application is not in issue and the Court has only to decide whether or not the case should be struck out.", "Paragraph 1 of Rule 47 is not applicable in the circumstances. Firstly, when Mr. Tyrer declared that he wished to withdraw his application the case was still pending before the Commission. Secondly that declaration, coming from an individual who is not entitled under the Convention to refer cases to the Court, cannot entail the effects of a discontinuance of the present proceedings (De Becker judgment of 27 March 1962, Series A no. 4, p. 23, para. 4). Above all, paragraph 1 covers solely discontinuance by \"a Party which has brought the case before the Court\", that is to say by an Applicant Contracting State in proceedings before the Court (paragraph (h) of Rule 1; Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 21, para. 47).", "Paragraph 2 of Rule 47 provides that the Court may, subject to paragraph 3, strike out of its list a case brought before it by the Commission but only when the Court \"is informed of a friendly settlement, arrangement or other fact of a kind to provide a solution of the matter\". As mentioned above, the Commission never examined the circumstances surrounding the applicant ’ s request and the Court has been supplied with no further information regarding those circumstances. Thus, the Court has received no indication that Mr. Tyrer ’ s declaration of withdrawal is a fact of a kind to provide a solution of the matter.", "26. The Attorney-General for the Isle of Man further submitted that the Court should strike the case out of its list when the Island ’ s legislature had adopted the proposal to abolish corporal punishment as a penalty for, inter alia, the offence of assault occasioning actual bodily harm of which the applicant had been convicted (see paragraph 16 above). The principal delegate emphasised that nothing short of total abolition of judicial corporal punishment would, in the view of the Commission, be acceptable as a \"fact of a kind to provide a solution of the matter\" in the context of Rule 47 (2).", "The Court does not consider that the legislation envisaged can be regarded as such a fact. There is no certainty as to whether and when the proposal will become law and, even if adopted, it cannot erase a punishment already inflicted. What is more, the proposed legislation does not go to the substance of the issue before the Court, namely whether judicial corporal punishment as inflicted on the applicant in accordance with Manx legislation is contrary to the Convention.", "27. Accordingly, the Court decides not to strike the case out of its list on either of the grounds advanced.", "II. ON ARTICLE 3 (art. 3)", "28. The applicant claimed before the Commission that the facts of his case constituted a breach of Article 3 (art. 3) of the Convention which provides:", "\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"", "He alleged that there had been torture or inhuman or degrading treatment or punishment, or any combination thereof.", "In its report, the Commission expressed the opinion that judicial corporal punishment, being degrading, constituted a breach of Article 3 (art. 3) and that, consequently, its infliction on the applicant was in violation of that provision.", "29. The Court shares the Commission ’ s view that Mr. Tyrer ’ s punishment did not amount to \"torture\" within the meaning of Article 3 (art. 3). The Court does not consider that the facts of this particular case reveal that the applicant underwent suffering of the level inherent in this notion as it was interpreted and applied by the Court in its judgment of 18 January 1978 (Ireland v. the United Kingdom, Series A no. 25, pp. 66-67 and 68, paras. 167 and 174).", "That judgment also contains various indications concerning the notions of \"inhuman treatment\" and \"degrading treatment\" but it deliberately left aside the notions of \"inhuman punishment\" and \"degrading punishment\" which alone are relevant in the present case (ibid., p. 65, para. 164). Those indications accordingly cannot, as such, serve here. Nevertheless, it remains true that the suffering occasioned must attain a particular level before a punishment can be classified as \"inhuman\" within the meaning of Article 3 (art. 3). Here again, the Court does not consider on the facts of the case that that level was attained and it therefore concurs with the Commission that the penalty imposed on Mr. Tyrer was not \"inhuman punishment\" within the meaning of Article 3 (art. 3). Accordingly, the only question for decision is whether he was subjected to a \"degrading punishment\" contrary to that Article (art. 3).", "30. The Court notes first of all that a person may be humiliated by the mere fact of being criminally convicted. However, what is relevant for the purposes of Article 3 (art. 3) is that he should be humiliated not simply by his conviction but by the execution of the punishment which is imposed on him. In fact, in most if not all cases this may be one of the effects of judicial punishment, involving as it does unwilling subjection to the demands of the penal system.", "However, as the Court pointed out in its judgment of 18 January 1978 in the case of Ireland v. the United Kingdom (Series A no. 25, p. 65, para. 163), the prohibition contained in Article 3 (art. 3) of the Convention is absolute: no provision is made for exceptions and, under Article 15 (2) (art. 15-2) there can be no derogation from Article 3 (art. 3). It would be absurd to hold that judicial punishment generally, by reason of its usual and perhaps almost inevitable element of humiliation, is \"degrading\" within the meaning of Article 3 (art. 3). Some further criterion must be read into the text. Indeed, Article 3 (art. 3), by expressly prohibiting \"inhuman\" and \"degrading\" punishment, implies that there is a distinction between such punishment and punishment in general.", "In the Court ’ s view, in order for a punishment to be \"degrading\" and in breach of Article 3 (art. 3), the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding subparagraph. The assessment is, in the nature of things, relative: it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.", "31. The Attorney-General for the Isle of Man argued that the judicial corporal punishment at issue in this case was not in breach of the Convention since it did not outrage public opinion in the Island. However, even assuming that local public opinion can have an incidence on the interpretation of the concept of \"degrading punishment\" appearing in Article 3 (art. 3), the Court does not regard it as established that judicial corporal punishment is not considered degrading by those members of the Manx population who favour its retention: it might well be that one of the reasons why they view the penalty as an effective deterrent is precisely the element of degradation which it involves. As regards their belief that judicial corporal punishment deters criminals, it must be pointed out that a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Article 3 (art. 3), whatever their deterrent effect may be.", "The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review.", "32. As regards the manner and method of execution of the birching inflicted on Mr. Tyrer, the Attorney-General for the Isle of Man drew particular attention to the fact that the punishment was carried out in private and without publication of the name of the offender.", "Publicity may be a relevant factor in assessing whether a punishment is \"degrading\" within the meaning of Article 3 (art. 3), but the Court does not consider that absence of publicity will necessarily prevent a given punishment from falling into that category: it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others.", "The Court notes that the relevant Isle of Man legislation, as well as giving the offender a right of appeal against sentence, provides for certain safeguards. Thus, there is a prior medical examination; the number of strokes and dimensions of the birch are regulated in detail; a doctor is present and may order the punishment to be stopped; in the case of a child or young person, the parent may attend if he so desires; the birching is carried out by a police constable in the presence of a more senior colleague.", "33. Nevertheless, the Court must consider whether the other circumstances of the applicant ’ s punishment were such as to make it \"degrading\" within the meaning of Article 3 (art. 3).", "The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State (see paragraph 10 above). Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is one of the main purposes of Article 3 (art. 3) to protect, namely a person ’ s dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects.", "The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.", "Admittedly, the relevant legislation provides that in any event birching shall not take place later than six months after the passing of sentence. However, this does not alter the fact that there had been an interval of several weeks since the applicant ’ s conviction by the juvenile court and a considerable delay in the police station where the punishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him.", "34. In the present case, the Court does not consider it relevant that the sentence of judicial corporal punishment was imposed on the applicant for an offence of violence. Neither does it consider it relevant that, for Mr. Tyrer, birching was an alternative to a period of detention: the fact that one penalty may be preferable to, or have less adverse effects or be less serious than, another penalty does not of itself mean that the first penalty is not \"degrading\" within the meaning of Article 3 (art. 3).", "35. Accordingly, viewing these circumstances as a whole, the Court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of \"degrading punishment\" as explained at paragraph 30 above. The indignity of having the punishment administered over the bare posterior aggravated to some extent the degrading character of the applicant ’ s punishment but it was not the only or determining factor.", "The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Article 3 (art. 3) of the Convention.", "III. ON ARTICLE 63 (art. 63)", "36. The Court must now consider whether its above conclusion is affected by certain arguments advanced under Article 63 of the Convention, paragraphs 1 and 3 whereof (art. 63-1, art. 63-3) read as follows:", "\"1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary-General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible.", "...", "3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.\"", "37. In respect of Article 63 (3) (art. 63-3), the Attorney-General for the Isle of Man submitted to the Court:", "\"firstly that judicial corporal punishment as practised in the Isle of Man in the case of the applicant is not a degrading punishment and that the United Kingdom is not in breach of the Convention by virtue of Article 63 (3) (art. 63-3); secondly ... that, having due regard to the local circumstances in the Island ... the continued use of judicial corporal punishment on a limited scale is justified as a deterrent and consequently the United Kingdom would not be in breach of the Convention.\"", "The Attorney-General relied in particular on the state of opinion in the Island and referred, inter alia, to a recent debate in the Manx legislature and a recent petition both of which had indicated that there was a large majority in favour of retention of judicial corporal punishment in specified circumstances (see paragraph 15 above). That majority, he said, not only did not consider this penalty to be degrading but also saw it as an effective deterrent and as a desirable safeguard in the control of law and order. He also cited statistics in support of these views (see paragraph 18 above).", "The principal delegate of the Commission submitted, as regards local conditions in the Isle of Man, that it was difficult to conceive that any local characteristics could be put forward to justify a breach of Article 3 (art. 3). He pointed out that no specific local conditions had been pleaded save the belief of many people in the Isle of Man that judicial corporal punishment is an effective deterrent and added that, even assuming that such a belief could constitute a local condition, the Commission did not consider that if affected its conclusion of a violation of Article 3 (art. 3). Finally, he stated that the Commission ’ s view that there were no significant social or cultural differences between the Isle of Man and the United Kingdom which could be relevant to the application of Article 3 (art. 3) in this case amounted to saying that Article 63 (3) (art. 63-3) in fact cannot be called in aid as regards territories with such close ties and affinities as in the case of the Isle of Man and the United Kingdom.", "38. The question therefore is to decide whether there are in the Isle of Man local requirements within the meaning of Article 63 (3) (art. 63-3) such that the penalty in question, in spite of its degrading character (see paragraph 35 above), does not entail a breach of Article 3 (art. 3).", "The Court notes firstly that the Attorney-General for the Isle of Man spoke more of circumstances and conditions than of requirements in the Island. The undoubtedly sincere beliefs on the part of members of the local population afford some indication that judicial corporal punishment is considered necessary in the Isle of Man as a deterrent and to maintain law and order. However, for the application of Article 63 (3) (art. 63-3), more would be needed: there would have to be positive and conclusive proof of a requirement and the Court could not regard beliefs and local public opinion on their own as constituting such proof.", "Moreover, even assuming that judicial corporal punishment did possess those advantages which are attributed to it by local public opinion, there is no evidence before the Court to show that law and order in the Isle of Man could not be maintained without recourse to that punishment. In this connection, it is noteworthy that, in the great majority of the member States of the Council of Europe, judicial corporal punishment is not, it appears, used and, indeed, in some of them, has never existed in modern times; in the Isle of Man itself, as already mentioned, the relevant legislation has been under review for many years. If nothing else, this casts doubt on whether the availability of this penalty is a requirement for the maintenance of law and order in a European country. The Isle of Man not only enjoys long-established and highly-developed political, social and cultural traditions but is an up-to-date society. Historically, geographically and culturally, the Island has always been included in the European family of nations and must be regarded as sharing fully that \"common heritage of political traditions, ideals, freedom and the rule of law\" to which the Preamble to the Convention refers. The Court notes, in this connection, that the system established by Article 63 (art. 63) was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention.", "Finally and above all, even if law and order in the Isle of Man could not be maintained without recourse to judicial corporal punishment, this would not render its use compatible with the Convention. As the Court has already recalled, the prohibition contained in Article 3 (art. 3) is absolute and, under Article 15 (2) (art. 15-2), the Contracting States may not derogate from Article 3 (art. 3) even in the event of war or other public emergency threatening the life of the nation. Likewise, in the Court ’ s view, no local requirement relative to the maintenance of law and order would entitle any of those States, under Article 63 (art. 63), to make use of a punishment contrary to Article 3 (art. 3).", "39. For these reasons, the Court finds that there are no local requirements affecting the application of Article 3 (art. 3) in the Isle of Man and, accordingly, that the applicant ’ s judicial corporal punishment constituted a violation of that Article.", "40. In view of its above conclusion, the Court does not consider it necessary to examine, in connection with Article 63 (1) (art. 63-1), the question of the constitutional status of the Isle of Man in relation to the United Kingdom.", "IV. ON ARTICLE 14 (art. 14)", "41. Article 14 (art. 14) of the Convention provides:", "\"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "42. In its decision of 19 July 1974, the Commission, having considered ex officio that the facts of the case involved questions of discrimination on grounds of sex and/or age, declared admissible and retained those parts of the application which raised issues under Article 3 in conjunction with Article 14 (art. 14+3). However, in its report of 14 December 1976 the Commission concluded that it was not necessary to pursue an examination of this question: it was sufficient that the Commission had concluded that there was a violation of Article 3 (art. 3) in this case and that, therefore, judicial corporal punishment should not have been applied to anybody. Moreover, the Commission did not advert to the matter either in its request of 11 March 1977 to the Court or at the oral hearing. The Government also addressed no argument to the Court on this issue.", "43. The Court notes the position taken by those appearing before it. In the circumstances of the case, the Court does not consider that it is necessary for it to examine this question ex officio.", "V. ON ARTICLE 50 (art. 50)", "44. Article 50 (art. 50) of the Convention provides:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "45. In his application to the Commission, Mr. Tyrer had claimed damages. However, at the hearing on 17 January 1978, the principal delegate remarked that, because there was no longer an applicant associated with the case, no issue under Article 50 (art. 50) could, in the Commission ’ s opinion, arise.", "The Court regards this question as ready for decision. It shares the view of the Commission and accordingly considers that it is not necessary to apply Article 50 (art. 50) in the present case." ]

[ "I. the CIRCUMSTANCES OF THE CASE", "7. The applicant is a British citizen, born in 1984.", "In May 1990 he and his brother were placed on the local child protection register because of “known physical abuse”. The cohabitant of the boys ’ mother was given a police caution after he admitted hitting A. with a cane. Both boys were removed from the child protection register in November 1991. The cohabitant subsequently married the applicant ’ s mother and became his stepfather.", "8. In February 1993, the head teacher at A. ’ s school reported to the local Social Services Department that A. ’ s brother had disclosed that A. was being hit with a stick by his stepfather. The stepfather was arrested on 5 February 1993 and released on bail the next day.", "9. On 5 February 1993 the applicant was examined by a consultant paediatrician, who found the following marks on his body, inter alia : (1) a fresh red linear bruise on the back of the right thigh, consistent with a blow from a garden cane, probably within the preceding twenty-four hours; (2) a double linear bruise on the back of the left calf, consistent with two separate blows given some time before the first injury; (3) two lines on the back of the left thigh, probably caused by two blows inflicted one or two days previously; (4) three linear bruises on the right bottom, consistent with three blows, possibly given at different times and up to one week old; (5) a fading linear bruise, probably several days old.", "The paediatrician considered that the bruising was consistent with the use of a garden cane applied with considerable force on more than one occasion.", "10. The stepfather was charged with assault occasioning actual bodily harm and tried in February 1994. It was not disputed by the defence that the stepfather had caned the boy on a number of occasions, but it was argued that this had been necessary and reasonable since A. was a difficult boy who did not respond to parental or school discipline.", "In summing up, the judge advised the jury on the law as follows:", "“... What is it the prosecution must prove? If a man deliberately and unjustifiably hits another and causes some bodily injury, bruising or swelling will do, he is guilty of actual bodily harm. What does ‘ unjustifiably ’ mean in the context of this case? It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in the manner, the instrument and the quantity of it. Or, put another way, reasonable. It is not for the defendant to prove it was lawful correction. It is for the prosecution to prove it was not.", "This case is not about whether you should punish a very difficult boy. It is about whether what was done here was reasonable or not and you must judge that...”", "11. The jury found by a majority verdict that the applicant ’ s stepfather was not guilty of assault occasioning actual bodily harm." ]

[ "ii. relevant domestic law", "A. Criminal sanctions against the assault of children", "12. The applicant ’ s stepfather was charged with “assault occasioning actual bodily harm” contrary to section 47 of the Offences against the Person Act 1861, as amended. An “assault”, for the purposes of this section, includes an act by which a person intentionally or recklessly inflicts personal violence upon another. “Actual bodily harm” includes any hurt or injury calculated to interfere with the health or comfort of the victim; the hurt or injury need not be permanent but must be more than transitory or trifling. The maximum penalty on conviction is five years ’ imprisonment.", "13. In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health. The maximum penalty on conviction is ten years ’ imprisonment.", "14. In criminal proceedings for the assault of a child, the burden of proof is on the prosecution to satisfy the jury, beyond a reasonable doubt, inter alia that the assault did not constitute lawful punishment.", "Parents or other persons in loco parentis are protected by the law if they administer punishment which is moderate and reasonable in the circumstances. The concept of “reasonableness” permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children.", "Corporal punishment of a child by a teacher cannot be justified if the punishment is inhuman or degrading. In determining whether punishment is inhuman or degrading, regard is to be had to “all the circumstances of the case, including the reason for giving it, how soon after the event it is given, its nature, the manner and circumstances in which it is given, the persons involved and its mental and physical effects” (section 47(1)(a) and (b) of the Education (no. 2) Act 1986, as amended by section 293 of the Education Act 1993).", "B. Civil remedies for assault", "15. Physical assault is actionable as a form of trespass to the person, giving the aggrieved party the right to recovery of damages. In civil proceedings for assault, whilst the elements of the tort are the same as those of the criminal offence, the burden of proof of establishing that punishment was reasonable is on the defendant, on the balance of probabilities.", "PROCEEDINGS BEFORE THE COMMISSION", "16. A. applied to the Commission on 15 July 1994. He complained that the State had failed to protect him from ill-treatment by his step-father, in violation of Articles 3 and/or 8 of the Convention; that he had been denied a remedy for these complaints in violation of Article 13; and that the domestic law on assault discriminated against children, in violation of Article 14 in conjunction with Articles 3 and 8.", "17. The Commission declared the application (no. 25599/94 ) admissible on 9 September 1996. In its report of 18 September 1997 (Article 31), it expressed the opinion that there had been a violation of Article 3 (unanimously); that it was not necessary to consider the complaint under Article 8 (sixteen votes to one); that there had been no violation of Article 13 (unanimously) and that it was not necessary to consider the complaint under Article 14 in conjunction with Articles 3 and 8 of the Convention. The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "18. In their memorial and at the hearing, the Government accepted the reasoning and the conclusion of the Commission that there had been a violation of Article 3. However, they asked the Court to confine itself to considering the facts of the case without making any general statement about the corporal punishment of children.", "The applicant asked the Court to find violations of Articles 3 and 8 of the Convention and to confirm that national law should not condone directly or by implication any level of deliberate violence to children.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "19. The applicant asked the Court to find a violation of Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Both the Commission and the Government accepted that there had been a violation of Article 3. Despite this, the Court considers it necessary to examine itself the issues in this case (see, for example, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 263). As is its usual practice, the Court will limit examination to the specific facts of the case before it.", "20. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see the Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, p. 59, § 30).", "21. The Court recalls that the applicant, who was then nine years old, was found by the consultant paediatrician who examined him to have been beaten with a garden cane which had been applied with considerable force on more than one occasion (see paragraph 9 above).", "The Court considers that treatment of this kind reaches the level of severity prohibited by Article 3.", "22. It remains to be determined whether the State should be held responsible, under Article 3, for the beating of the applicant by his stepfather.", "The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, the H.L.R. v. France judgment of 29 April 1997, Reports 1997-III, p. 758, § 40). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, pp. 11–13, §§ 21–27; the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1505, §§ 62–64; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37).", "23. The Court recalls that under English law it is a defence to a charge of assault on a child that the treatment in question amounted to “reasonable chastisement” (see paragraph 14 above). The burden of proof is on the prosecution to establish beyond reasonable doubt that the assault went beyond the limits of lawful punishment. In the present case, despite the fact that the applicant had been subjected to treatment of sufficient severity to fall within the scope of Article 3, the jury acquitted his stepfather, who had administered the treatment (see paragraphs 10–11 above).", "24. In the Court ’ s view, the law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3. Indeed, the Government have accepted that this law currently fails to provide adequate protection to children and should be amended.", "In the circumstances of the present case, the failure to provide adequate protection constitutes a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "25. Article 8 of the Convention provides as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "26. The Commission concluded that, given its finding of a violation of Article 3, it was not necessary to consider the issues under Article 8. The Government asked the Court also to take this approach.", "27. In his memorial to the Court, the applicant submitted that, if the Court were to find a violation of Article 3, he would not pursue his complaint under Article 8. However, at the hearing before the Court, he contended that, in the light of the Government ’ s memorial and their proposals for legislative change, it was necessary for the Court to rule under Article 8 in order to provide guidance to the Government and protection for children against all forms of deliberate violence.", "28. The Court recalls that it has found a violation of Article 3 in the present case. In these circumstances it is not necessary to examine whether the inadequacy of the legal protection provided to A. against the ill-treatment that he suffered also breached his right to respect for private life under Article 8.", "III. ALLEGED VIOLATIONs OF ARTICLES 13 AND 14 OF THE CONVENTION", "29. The applicant accepted the Commission ’ s finding of no violation of Article 13 of the Convention and did not pursue his complaint under Article 14 of the Convention taken in conjunction with Articles 3 and/or 8.", "30. In these circumstances, it is not necessary for the Court to consider these complaints.", "IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION", "31. The applicant claimed just satisfaction under Article 50 of the Convention, which provides:", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Non-pecuniary damage", "32. The applicant sought compensation for the grave physical abuse which he had suffered at the hands of his stepfather. He pointed out that, because of the inadequacy of English law, he had also had to endure the trauma of criminal proceedings which resulted in the acquittal of his stepfather. At the hearing before the Court, his representative suggested that 15,000 pounds sterling (GBP) would be an appropriate sum by way of compensation.", "33. Prior to the hearing before the Court, the Government had informed the applicant that they accepted the Commission ’ s finding of violation of Article 3 and undertook to amend domestic law. In addition, they had offered the applicant an ex gratia payment of GBP 10,000. At the hearing before the Court, however, they submitted that, in the light of their undertaking to amend the law, a finding of a breach would be adequate just satisfaction.", "34. The Court considers that, in the circumstances of the case, the applicant should be awarded GBP 10,000 in respect of compensation for non-pecuniary damage.", "B. Costs and expenses", "35. The applicant claimed legal costs and expenses totalling GBP 48,450.", "36. The Government submitted that, in view of their admission of a violation of Article 3 and offer of settlement, the applicant should not receive any legal costs in respect of the proceedings before the Court. In any event, they considered that the hourly rates charged by his representatives and the number of hours charged were excessive and should be reduced.", "37. In view of the limited number of issues raised by the case and the absence of any detailed breakdown of the costs claimed, the Court considers the sum requested by the applicant to be excessive (see, for example, the Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, p. 1856, § 66). Making its assessment on an equitable basis, it awards GBP 20,000 in respect of costs and expenses, less the amounts received by way of legal aid from the Council of Europe, but together with any value-added tax which may be payable.", "C. Default interest", "38. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant was born in 1987 and lives in Ludvika.", "12. In September 2002, when she was 14 years old, she discovered that her stepfather had hidden a video - camera in the laundry basket in the bathroom, which was in recording mode and directed towards the spot where she had undressed before taking a shower. Immediately after the incident, the film was burned without anyone seeing it.", "13. In September 2004, two years later, the applicant ’ s mother reported the incident to the police. An officially appointed counsel ( målsägandebiträde ) was assigned to the applicant on 5 October 2004.", "14. On 21 October 2005 the public prosecutor indicted the applicant ’ s stepfather for sexual molestation ( sexuellt ofredande ) under Chapter 6, Article 7 § 3, of the Penal Code. He was also charged on two counts of sexual molestation of the applicant ’ s cousin, committed during the spring and summer of 2003 when the cousin was 16 years old, for having caressed her thigh and for having expressed his desire to have sex with her. He was charged on a fourth count of sexual molestation for having allegedly looked through the window of the applicant ’ s room when she was undressing in the late summer of 2003.", "15. On 20 January 2006 the applicant, represented by counsel, submitted a claim for damages of 25,000 Swedish kronor (SEK): SEK 15,000 in compensation for violation of her personal integrity and SEK 10,000 for pain and suffering, to be joined to the criminal proceedings. The applicant based her private claim on “the criminal act for which her stepfather was being prosecuted”, without invoking any specific sections of the Tort Liability Act.", "16. The applicant, her stepfather, her mother and her cousin gave evidence before the District Court of Falun ( Falu Tingsrätt ). The applicant explained that on the relevant day in September 2002, as she was about to take a shower, her stepfather had been doing something in the bathroom. When she discovered the camera, it was in recording mode, making a buzzing sound and flashing. She did not touch any of the buttons. She went to her mother in tears, taking the video - camera wrapped in a towel. H stepfather took the camera from her mother. Subsequently, the applicant saw her mother and stepfather burning a film, but she was not sure whether it was a recording of her.", "17. The applicant ’ s mother confirmed the applicant ’ s statement and added that she did not know whether anything had been recorded since the film had been burned without her seeing it. She had not reported the incident to the police until 2004, when she had heard that the applicant ’ s cousin had also experienced incidents with the accused.", "18. The applicant ’ s stepfather explained that he had lived with her mother from 1997 until the autumn of 2003. They had separated on account of the incident in question, among other things. He had wanted to try to film with a hidden camera, but it had been an impulsive act. He was not sure whether the camera had been in recording mode or whether a film had been recorded. The applicant ’ s mother had burned the film without any of them seeing it.", "19. By a judgment of 14 February 2006, the District Court convicted the applicant ’ s stepfather on all four counts of sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code. As regards the first count of sexual molestation, it found it established that he had had a sexual intention in hiding the camera in the laundry basket and directing it at the part of the bathroom where it was usual to undress. It added that the buzzing sound from the camera heard by the applicant strongly suggested that the camera was switched on and was actually recording. Otherwise, there would have been no point in hiding the camera among the clothes in the laundry basket. The hole in the laundry basket indicated that the strategy was quite refined. Regardless of the fact that, afterwards, no one had verified the contents of the film, it could under the circumstances be considered established that the applicant ’ s stepfather had actually filmed her while she was naked.", "20. The applicant ’ s stepfather was given a suspended sentence combined with seventy-five hours ’ compulsory community service. Moreover, he was ordered to pay the applicant damages in the amount of SEK 20,000.", "21. On appeal, by a judgment of 16 October 2007, the Svea Court of Appeal ( Svea hovrätt ) convicted him on the two counts of sexual molestation committed against the cousin, for which he was given a suspended sentence and ordered to pay sixty day-fines of SEK 50, amounting to a total of SEK 3,000.", "22. The Court of Appeal acquitted him on the counts of sexual molestation allegedly committed against the applicant.", "23. As to the incident in September 2002, the Court of Appeal found it established that the applicant ’ s stepfather had put a camera in the bathroom and that he had started the recording before she was about to take a shower. Whether a recording had actually been made, however, was unclear. It was apparent, the court continued, that his motive had been to film the applicant covertly for a sexual purpose. Given that motive, it was also regarded as certain that he had not intended the applicant to find out about the filming. Nor, according to the court, had he been indifferent to the risk that she would find out about it. In assessing whether the act legally constituted sexual molestation within the meaning of Chapter 6, Article 7 § 3, of the Penal Code, the Court of Appeal referred to a Supreme Court judgment ( published in Nyatt jurisdiskt arkiv ( NJA ) 1996, p. 418) concerning a man who had covertly filmed his sleeping girlfriend while he masturbated. The man was acquitted of sexual molestation because he had not intended his girlfriend to find out about the filming. Moreover, in the said judgment the Supreme Court held that the isolated act of filming was not a crime in itself, as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and despite finding that the situation the applicant ’ s stepfather intended to film was obviously of a sensitive nature as regards her personal integrity and that the violation was particularly serious on account of the applicant ’ s age and relationship to her stepfather, the Court of Appeal found that he could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. The court noted that the applicant had become aware of her stepfather ’ s attempt to film her, but that this had not been covered by his intent.", "24. The Court of Appeal went on to point out that the act might, at least theoretically, have constituted the crime of attempted child pornography ( försök till barnpornografibrott ) considering the applicant ’ s age. However, since no charge of that kind had been brought against the applicant ’ s stepfather, the Court of Appeal could not examine whether he could be held responsible for such a crime. In conclusion, despite finding his behaviour extremely reprehensible, he was acquitted and the applicant ’ s claim for damages dismissed.", "25. As regards the incident in the late summer of 2003, the Court of Appeal found it established that the applicant ’ s stepfather had wanted to look at her secretly. Thus, although the court found such behaviour reprehensible, he had lacked the intent that the applicant should see him.", "26. On 12 December 2007 the Supreme Court ( Högsta domstolen ) refused leave to appeal.", "III. INTERNATIONAL CONVENTIONS", "A. The United Nations Convention on the Rights of the Child 1989", "51. The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. It was ratified by Sweden on 29 June 1990 and its relevant Articles read :", "Article 19", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "Article 34", "“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:", "(a) The inducement or coercion of a child to engage in any unlawful sexual activity;", "(b) The exploitative use of children in prostitution or other unlawful sexual practices;", "(c) The exploitative use of children in pornographic performances and materials.”", "B. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse", "52. This Convention obliges its Parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct, including offences concerning child pornography. It was signed by Sweden on 25 October 2007 and came into force on 1 July 2010. Sweden ratified it on 28 June 2013. The relevant parts of Chapter VI, “Substantive criminal law ” read:", "Article 18 – Sexual abuse", "“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised :", "a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;", "b. engaging in sexual activities with a child where:", "– use is made of coercion, force or threats; or", "– abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or", "– abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.", "2. For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child.", "3. The provisions of paragraph 1. a are not intended to govern consensual sexual activities between minors.”", "Article 20 – Offences concerning child pornography", "“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct, when committed without right, is criminalised:", "a. producing child pornography;", "b. offering or making available child pornography;", "c. distributing or transmitting child pornography;", "d. procuring child pornography for oneself or for another person;", "e. possessing child pornography;", "f. knowingly obtaining access, through information and communication technologies, to child pornography.", "2. For the purpose of the present article, the term ‘ child pornography ’ shall mean any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child ’ s sexual organs for primarily sexual purposes.", "3. Each Party may reserve the right not to apply, in whole or in part, paragraph 1.a and e to the production and possession of pornographic material:", "– consisting exclusively of simulated representations or realistic images of a non-existent child;", "– involving children who have reached the age set in application of Article 18, paragraph 2, where these images are produced and possessed by them with their consent and solely for their own private use.", "4. Each Party may reserve the right not to apply, in whole or in part, paragraph 1.f.”", "Article 21 – Offences concerning the participation of a child in pornographic performances", "“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:", "a. recruiting a child into participating in pornographic performances or causing a child to participate in such performances;", "b. coercing a child into participating in pornographic performances or profiting from or otherwise exploiting a child for such purposes;", "c. knowingly attending pornographic performances involving the participation of children.", "2. Each Party may reserve the right to limit the application of paragraph 1.c to cases where children have been recruited or coerced in conformity with paragraph 1.a or b.", "... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Sexual molestation", "27. The offence of sexual molestation (and child pornography, see below) falls within the domain of public prosecution, in which the principle of objectivity is applied whereby no prosecution should be brought if the prosecutor deems that the conditions for a conviction are lacking. The provision on sexual molestation can be found in the Penal Code ( Brottsbalken, 1962:700) which, before 1 April 2005, provided:", "Chapter 6 on sexual crimes, Article 7", "“1. If a person sexually touches a child under 15 years of age otherwise than as previously provided for in this Chapter, or induces the child to undertake or participate in an act with sexual implications, a fine or imprisonment of a maximum period of two years shall be imposed for sexual molestation.", "2. A sentence for sexual molestation shall also be imposed on a person who by coercion, seduction or other improper influence induces a person who has attained the age of 15 but not 18 to undertake or participate in an act with sexual implications if the act is an element in the production of pornographic pictures or constitutes pornographic posing in circumstances other than those relating to the production of a picture.", "3. This shall also apply if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards a person in a way that flagrantly violates a sense of propriety.”", "28. On 1 April 2005 that provision was incorporated into Article 10 of Chapter 6 and reads as follows:", "“1. A person who, otherwise than as previously provided in this Chapter, sexually touches a child under 15 years of age or induces the child to undertake or participate in an act with sexual implications shall be sentenced for sexual molestation to a fine or to imprisonment of a maximum period of two years.", "2. This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort or who otherwise by word or deed molests a person in a way that is likely to violate that person ’ s sexual integrity.”", "29. It should be noted that a person cannot be held responsible for an uncompleted act of sexual molestation, such as attempting or preparing to commit such a crime (see, by converse implication, Chapter 23, Article 1, of the Penal Code).", "30. Subsequently, based on the statements in the preparatory works to the provision, the 2008 Sexual Offences Commission stated the following.", "“In our view, it is ... quite clear that the second paragraph of the provision on sexual molestation should also include actions directed at persons who are unconscious or asleep. The provision therefore belongs to the category of sexual offences, not offences against integrity. Using this as the starting point for how the offence of sexual molestation should be handled, it may also be possible to assess situations in which a person has covertly filmed or photographed another person in a sexually intrusive way as sexual molestation.”", "B. Attempted child pornography", "31. The relevant provisions of the Penal Code read:", "Article 10a of Chapter 16 on crimes against public order", "“A person who", "1. portrays a child in a pornographic picture;", "2. disseminates, transfers, grants use of, exhibits, or in any other way makes such a picture of a child available to some other person;", "3. acquires or offers such a picture of a child;", "4. brings about contact between a buyer and a seller of such pictures of children or takes any other similar step to facilitate dealing in such pictures; or", "5. possesses such a picture of a child", "shall be sentenced for the crime of child pornography to imprisonment for a maximum period of two years, or, if it is a petty offence, to a fine or imprisonment for a maximum period of six months.", "A child is held to be a person whose pubertal development is not complete or who is under 18 years of age. If a person ’ s pubertal development is complete, liability shall be imposed for deeds committed under points 2 to 5 above only if it is apparent from the picture or its circumstances that the depicted person is under 18 years of age.", "...”", "32. Before 1 January 2011, the second paragraph of the above Article read:", "“ A child is held to be a person whose pubertal development is not complete or who, where this is apparent from the picture and its circumstances, is less than 18 years of age ...”", "33. The term “pornographic picture” is not defined in the text of the law. In the preparatory works it was stated that the provision about pornographic crimes applied only to pictures, but to pictures of all kinds, such as, inter alia, pictures in publications, photographic pictures, including films and pictures distributed by TV-technique or video recordings (Governmental Bill 1978/79:179, p. 9). Moreover it was stated that:", "“A certain prudence was called for, so that the criminalised area would not become too wide or difficult to assess. It was not the intention to criminalise every exposure of naked children or all pictures in which a child ’ s genitals may be perceived, even if such pictures may stimulate some people ’ s sexual instincts. In order for the handling of a picture to be illegal, it is a condition that it be pornographic according to common parlance and general values.”", "34. In a review of the legislation ( Law no. 2010:1357), which led to the amendment of the second paragraph of Chapter 16, Article 10a, as from 1 January 2011, as set out above, the following was stated, among other things, as regards the definition (Swedish Government Official Reports, SOU 2007:54, p. 77):", "“A picture may be regarded as pornographic when, without any real scientific or artistic merits, and in a blatant and alluring manner, it displays a sexual motive (Gov. Bill 1970:125, pp. 79 et seq.). Not only do pictures in which children are involved in acts which obviously have a sexual connotation fall within the provision regarding child - pornography crimes, but also pictures in which children appear together with one or several adults who are performing such actions. Pictures in which a child appears in a manner which is designed to appeal to sexual instincts without the child being considered to have participated in sexual behaviour during the picturing may fall within the criminalised area ... A picture may be presented in different ways, inter alia, by a real child being pictured, filmed or drawn. By using different techniques, more or less realistic artificial pictures may also be created. For criminal liability to be incurred it is not necessary that the picture depicts a real child; pictures of fictive children are also included.”", "35. With regard specifically to attempt, the Penal Code reads :", "Chapter 16, Article 17", "“A person preparing or conspiring to commit mutiny ... shall be sentenced in accordance with the provisions of Chapter 23. The same shall also apply ... to the crime of attempting to commit the crime of child pornography described in Article 10a, first paragraph ...”", "Chapter 23, Article 1", "“A person who has begun to commit a crime without bringing it to completion shall, in cases where specific provisions exist for the purpose, be sentenced for attempting to commit a crime if there was a danger that the act would lead to the completion of the crime or such danger was precluded only because of fortuitous circumstances.", "Punishment for attempt shall not exceed the sentence applicable to a completed crime and shall not be less than imprisonment if the least stringent punishment for the completed crime is imprisonment of two years or more.”", "C. Other relevant legal provisions", "36. The Code of Judicial Procedure ( Rättegångsbalken 1942:740 ) provides in so far as relevant:", "Chapter 17, Article 3", "“A judgment shall not be given for anything other or more than that properly requested by a party. In cases amenable to out-of-court settlement, the judgment shall not be based on circumstances other than those pleaded by a party as the foundation of his or her action.”", "Chapter 22, Article 7", "“If an action for private claims in consequence of an offence is brought in conjunction with the prosecution and it is found that the offence charged is not punishable, the action may nonetheless be adjudicated in the case.”", "Chapter 29, Article 6", "“ ... Where a private claim is joined to the prosecution, the court ’ s finding of criminal liability shall be binding for the adjudication of the private claim.”", "Chapter 30, Article 3", "“The judgment may relate only to an act for which a prosecution was properly instituted or to a matter referred by statute to the court ’ s criminal jurisdiction. The court is not bound by the legal characterisation of the offence or applicable provisions of law stated in the claim.”", "37. The Tort Liability Act ( Skadeståndslag 1972:207 ) provides in so far as relevant:", "Chapter 2, section 1", "“Anyone who deliberately or negligently causes personal injury or damage to property shall compensate the injury or damage caused.”", "Chapter 2, section 3", "“Anyone who seriously violates another person through a crime involving an attack against the person or the freedom, serenity or honour of that person shall compensate the damage caused by the violation.”", "D. Domestic practice concerning covert filming", "38. In a Supreme Court judgment of 16 October 1992 (NJA 1992, p. 594) concerning a person who had secretly filmed sexual intercourse between himself and his girlfriend and who had subsequently shown the film to several persons, the Supreme Court noted that it was not prohibited under Swedish law to film another person without his or her consent. This was so, the court continued, even in situations where the deed in question seriously violated the personal integrity of the person concerned. Apart from certain exceptional situations, the only protection available was under the criminal provisions on defamation in conjunction with Chapter 1, section 3, of the Tort Liability Act (now Chapter 2, section 3, of that Act). The Supreme Court found that the accused person had committed defamation by showing the film to others.", "39. A further Supreme Court judgment dated 27 June 1996 (NJA 1996, p. 418) concerned a man who had covertly filmed his sleeping girlfriend while he masturbated. The District Court found his acts to constitute, inter alia, sexual molestation, but the Court of Appeal and the Supreme Court acquitted him of this offence. The Supreme Court held that the isolated act of filming was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent.", "40. Yet another Supreme Court judgment, dated 23 October 2008 (NJA 2008, p. 946), concerned, inter alia, a person who had covertly filmed his ex-girlfriend with another man in an intimate situation and who had subsequently e ‑ mailed the film, together with certain descriptive messages, to others. The Court of Appeal found the filming to constitute molestation and the sending of some of the e-mails to amount to defamation, and awarded the ex - girlfriend damages for violation of personal integrity. The Supreme Court granted leave to appeal in respect of the alleged molestation. The Supreme Court acquitted the person of molestation and reiterated at the same time that Swedish law contained no general prohibition against covert filming. The court also noted that in cases where the covert filming did not constitute a crime, no damages could be awarded. Although the need for a strengthened legal framework in this regard had already been acknowledged in Swedish legislative work in the 1960s, the court noted further that it had so far not led to any concrete results. The court found it highly questionable whether the fact that acts of filming an individual in situations where such filming seriously violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention. Given that finding, the court continued, it was legitimate to examine whether punishment could be imposed by interpreting otherwise non-applicable domestic provisions in a Convention- compliant manner. In that regard, the court referred to domestic case-law concerning compensation for violations of the Convention. However, the court noted, another requirement under the Convention was that no one should be punished for an act which, at the time when it was committed, did not clearly constitute a criminal offence under the law. After finding that the filming in issue did not fall under any applicable criminal provision, it was left unpunished and no damages were awarded.", "E. Recent legislative work concerning covert filming", "41. In 2004 the Government instructed the Committee on the Protection of Integrity ( Integritetsskyddskommittén ) to investigate the need for general legal provisions for the protection of personal integrity (apart from the legislation on data protection, crimes against individuals, secrecy, and so on). In the meantime, the Penal Code was reviewed and in April 2005 an amendment to the provision on sexual molestation, which was designed to encompass covert filming for sexual purposes, was introduced (see paragraphs 28-30 above).", "42. In 2008 the Committee on the Protection of Integrity proposed a general provision in the Penal Code on illicit photography and in January 2011 the Ministry of Justice issued a report on illicit photography (Ds 2011:1) which proposed the criminalisation of photography and filming in certain situations. On 1 March 2012 the Government approved the referral of a proposal entitled “Intrusive Photography” to the Law Council ( Lagrådet ) for consideration. The latter criticised the proposal, inter alia, on account of the potential effects that it could have on the principles laid down in order to protect those who procure information for publication under the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, which are part of the Swedish Constitution.", "43. Consequently, on 20 December 2012 the Government adopted a new proposal modifying the scope of the criminalisation of intrusive photography. The Law Council did not have any comments on the substance of the proposal and on 7 February 2013 the Government presented the bill to the Swedish Parliament proposing to criminalise intrusive photography in accordance with the proposal referred to the Law Council on 20 December 2012. The Law (SFS 2013:366) was enacted by Parliament on 29 May 2013 and came into force on 1 July 2013. Henceforth, Article 6a of Chapter 4 of the Penal Code, regarding crimes against liberty and peace, reads as follows:", "“A person who, with the aid of technical means, illicitly and covertly records a picture of someone who is inside a home or in a bathroom, in a changing room or other similar space, shall be sentenced for intrusive photography to a fine or imprisonment of a maximum of two years.", "No criminal responsibility shall be imposed if the act is justifiable considering its purpose and other circumstances.", "The first paragraph does not apply to a person who depicts someone with the aid of technical means in the course of duty on behalf of a public authority.”", "In concrete terms, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an intrusive - photography offence would also be punishable as preparation to commit such an offence.", "F. Domestic practice concerning the crime of child pornography", "44. In a judgment of 25 February 2005 (NJA 2005, p. 80), which concerned the photographing and filming of certain young individuals aged over 15 but under 18, the Supreme Court held that the pubertal development of the individuals was clearly complete and that it was impossible, from the pictures alone or their presentation, to determine whether they had attained the age of 18 or not. Their age could not be determined from any text accompanying the pictures or any other circumstances. In such a situation, and regardless of whether the person responsible for the pictures was aware of the individuals ’ age or not, the act could not be held to constitute the crime of child pornography.", "G. Domestic practice and ongoing legislative work concerning compensation for violations of the Convention", "45. In a judgment of 9 June 2005 (NJA 2005, p. 462) concerning a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention on account of the excessive length of criminal proceedings, the Supreme Court held that the claimant ’ s right under this Article had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 and the Court ’ s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000 ‑ XI), the Supreme Court concluded that the claimant was entitled to compensation from the State directly under Swedish legislation on tort liability for pecuniary damage and under Article 13 of the Convention for non-pecuniary damage to the extent that no other remedy was available.", "46. Similar decisions followed on 4 May 2007 (NJA 2007, p. 295), concerning length of detention and Article 5 of the Convention, and on 21 September 2007 (NJA 2007, p. 584) regarding Article 8 of the Convention.", "47. A Supreme Court decision of 29 October 2007 (NJA 2007, p. 747) concerned a claim for damages brought by an individual against a private insurance company. The claim concerned an alleged violation of Article 8 of the Convention related to secret surveillance undertaken in respect of the claimant. The Supreme Court noted that the Convention did not impose duties on individuals. Even if the State might have positive obligations under the Convention, the court continued, in view of the rule - of-law value enshrined in the principle of predictability, an individual could not be obliged to compensate another individual directly on the basis of the Convention.", "48. The right to obtain compensation on the basis of an alleged violation of the Convention was subsequently acknowledged by the Supreme Court in its judgments of December 2009 (NJA 2009, N 70), June 2010 (NJA 2010, p. 363) and April 2012 (NJA 2012, p. 211).", "49. Furthermore, the Chancellor of Justice has delivered various decisions concerning compensation to individuals for violations of the Convention.", "50. Finally, in May 2009 the Government decided to set up a committee ( en särskild utredare ) on tort liability and the Convention to examine the current legal situation. In December 2010 the committee submitted its report ( Skadestånd och Europakonventionen, SOU 2010:87) to the Government. It proposed the inclusion of an explicit provision in the Tort Liability Act allowing natural and legal persons to obtain pecuniary and non-pecuniary damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by an ordinary court which would first need to establish that a right under the Convention had been violated. The aim of the proposal is to fulfil, together with the other already existing legal remedies, Sweden ’ s obligations under Article 13 of the Convention.", "IV. COMPARATIVE LAW", "53. From the information available to the Court, including a survey of thirty-nine Council of Europe member States, it would appear that child pornography is criminalised in all of those States.", "54. The isolated act of covert/non-consensual filming, photographing or portrayal of a child for sexual purposes is criminalised either as child pornography or as a specific offence in thirty-three of the member States studied (Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, Republic of Moldova, Montenegro, the Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Spain, Switzerland, Turkey, Ukraine and the United Kingdom), while a conviction in the remaining six member States (Azerbaijan, Denmark, France, Monaco, Lithuania and the former Yugoslav Republic of Macedonia ) can only be obtained where an intent to distribute the pornographic material can be proven. In most of the latter countries the conduct in question might still be illegal under other provisions of the Criminal Code relating to sexual offences.", "55. The isolated act of covert or non-consensual filming/photographing of an individual (a child or an adult) for non-sexual purposes is considered a criminal offence in twenty-five of the member States studied (Albania, Bosnia and Herzegovina, Croatia, Denmark, Finland, France, Georgia, Germany, Greece, Iceland, Italy, Lithuania, Luxembourg, Monaco, Montenegro, the Netherlands, Poland, Russia, Slovakia, Slovenia, Spain, Switzerland, the former Yugoslav Republic of Macedonia, Turkey and Ukraine), namely as a violation of the right to privacy. Eleven of the remaining fourteen member States which do not include privacy crimes in their criminal codes provide for civil remedies against infringements of a person ’ s privacy. Three of the member States examined also do not have a civil-law procedure for claims against covert/non-consensual capturing of one ’ s image.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION", "56. The applicant complained that the Swedish State had failed to comply with its obligation under Article 8 to provide her with remedies against her stepfather ’ s violation of her personal integrity when he had attempted secretly to film her naked in their bathroom when she was 14 years old. She also relied on Article 13 of the Convention.", "57. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for instance, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the applicant ’ s complaint concerns exclusively the remedies available to her against her stepfather, not those available against the State to enforce the substance of a Convention right or freedom at the national level. The complaint is therefore to be examined under Article 8 of the Convention alone, which provides as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber judgment", "58. In its judgment of 21 June 2012 (see E.S. v. Sweden, no. 5786/08, 21 June 2012 ), the Chamber also considered that the complaint was to be examined under Article 8 of the Convention alone. It was satisfied that, although Swedish law contained no provision relating to covert filming, laws were in place which could, at least in theory, cover acts such as the one in this case. It pointed out that the public prosecutor, when indicting the applicant ’ s stepfather, and the District Court, when convicting him on 14 February 2006, considered that the impugned act could be covered by the provision on sexual molestation. Accordingly, although at the relevant time a similar outcome had been seen in Swedish case-law (see NJA 1996, p. 418), it was not until delivery of the Court of Appeal ’ s judgment that it became clear that the act could not legally constitute sexual molestation given the applicant ’ s stepfather ’ s lack of the requisite intent that she find out about the filming. The Chamber also reiterated that the Court of Appeal, in its judgment acquitting him of sexual molestation, had pointed out that his acts might, at least theoretically, have constituted the crime of attempted child pornography under the Penal Code. However, since no charge of that kind had been brought by the prosecution against the applicant ’ s stepfather, the Court of Appeal could not examine whether he could be held responsible for that crime. Lastly, the Chamber noted that civil-law remedies were available to the applicant and that she had chosen, represented by counsel, to join her claim for damages to the criminal proceedings. In those circumstances the Chamber concluded that there were no such significant flaws in Swedish legislation and practice as to amount to a breach of Sweden ’ s positive obligations under Article 8.", "B. The parties ’ submissions", "1. The applicant", "59. The applicant maintained that the Swedish legal system did not provide any remedy to protect her against the concrete actions of her stepfather.", "60. Firstly, with regard to the provision on sexual molestation, it was a requirement for a conviction that her stepfather should intend the applicant to know of the filming, the reason being that a person could not be molested unless he or she was aware of it. Accordingly, in the applicant ’ s view, her stepfather had been acquitted of sexual molestation on account of the construction of that provision. It could and should have been construed in such a way that it criminalised the filming, whether or not the applicant became aware of it at the time it was carried out. Accordingly, the applicant found that the construction of the provision on sexual molestation was open to criticism, notably since the act in issue was not covered by other criminal provisions.", "61. Secondly, referring, inter alia, to the preparatory works to the provision on child pornography and to a legal opinion by Professor Madeleine Leijonhufvud, the applicant contended that her stepfather could not have been convicted of attempted child pornography either, because the basic requirement for that provision was lacking, namely that the picture in question be pornographic. In the present case images of a 14 -year-old girl undressing before taking a shower, in an otherwise everyday situation, could not be regarded as pornographic within the meaning of Chapter 16, Article 10a, of the Penal Code concerning child pornography. In order for the film to be pornographic, her stepfather would have had to manipulate the film, inter alia, by making it appear as if the applicant was posing for him, or otherwise placing the film in a pornographic context. When the case was pending before the national courts it was not possible to speculate as to what her stepfather would have done with the film because it had been destroyed. In the applicant ’ s view, it was therefore completely understandable that the prosecutor had not formulated or amended the indictment to include a child - pornography crime, since such a claim would not have had any prospect of success.", "62. For the reasons set out above, the applicant did not criticise the prosecution on procedural grounds for not complying with their obligation to indict crimes or their duty to assist her in pursuing claims for damages under Chapter 22 of the Code of Judicial Procedure. Rather, she found that the legislator and the domestic courts had failed in their respective positive obligations in the present case, the legislator on account of the flaw in the law and the courts on account of the failure to award the applicant damages.", "63. In respect of the legislator, the applicant observed that the mere filming or depiction of a minor in a situation which upset the essential aspects of the portrayed person ’ s personal integrity was not a criminal offence unless the image could objectively be regarded as pornographic according to common parlance and general values. For adults, no such protection existed at all. The applicant found that the failure for years to criminalise the act of covert or illicit filming amounted to a violation of Article 8. She pointed out that the weak protection in this area had been known and discussed since 1966. In her view it was inadequate to “ quantify ” this deficiency as a “ significant ” or “ insufficiently significant” flaw in the law, for the purpose of an examination under Article 8. It sufficed to conclude that the protection for the right to respect for private life was – and still is – insufficient in the Swedish legal system and that the applicant was a victim of that deficiency. The applicant pointed out that the legislative proposal regarding covert filming had been initiated after the applicant ’ s case had been communicated and that the ongoing legislative measures seemed to have progressed quite far, especially after the Grand Chamber had accepted her request for referral of her case, which demonstrated the urgent need for such legislative protection.", "64. Lastly, referring to the outcome of the criminal proceedings before the domestic courts, the applicant alleged that the Swedish system did not afford her a civil remedy to protect her against the act of her stepfather. She maintained that, despite his acquittal, the courts could have awarded her compensation on the basis of the Tort Liability Act or the Convention alone. She observed that the domestic courts were the masters of the classification of the law and that therefore it had not been necessary for the parties to invoke any legal provisions at all. Furthermore, since it was a matter of a private claim in consequence of an offence and Chapter 22, Article 7, of the Code of Judicial Procedure applied, the courts were under an obligation to determine the claim, even if it was found that the act was not punishable. Accordingly, in the applicant ’ s view her claim should have been determined by the domestic courts of their own motion, even though she had not invoked any specific legal provisions.", "2. The Government", "65. The Government contended that Sweden had fulfilled its positive obligations under Article 8 in the present case. The act in issue fell within the scope of the Swedish criminal legislation, notably the provisions concerning sexual molestation and the offence of child pornography, and there were no elements suggesting that the primary investigation and the prosecution had not been conducted effectively or in a manner otherwise incompatible with Swedish law or Article 8. The applicant ’ s stepfather had been prosecuted for the act but could not be convicted on account of the lack of requisite evidence. Nevertheless, deterrent sanctions existed in this case and were backed up by effective law-enforcement machinery.", "66. The Government initially pointed out that the Court had repeatedly stated that States enjoyed a wide margin of appreciation with regard to ensuring adequate protection under Article 8, even in cases of very severe offences such as the rape of a minor (see, for example, M.C. v. Bulgaria, no. 39272/98, § 154, ECHR 2003 ‑ XII), and that only significant flaws in legislation and practice, and their application, would amount to a breach of a State ’ s positive obligations under the said provision.", "67. In the present case, the applicant ’ s stepfather was indicted for sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code and both the District Court and the Court of Appeal found that his act corresponded to the objective criteria that constituted this offence, but the latter found that it was not possible to prove the subjective element required for criminal liability under that provision, namely his intent that the applicant find out about the filming. The reason for his acquittal was therefore not the lack of a criminal-law provision covering the relevant act but the public prosecutor ’ s inability to prove that he had the necessary intent and hence that the crime had been committed. The Government pointed out in this context that the Convention did not require a guarantee that a prosecution should result in a conviction (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, § § 96 and 147, ECHR 2004 ‑ XII).", "68. The Government observed that the provision on sexual molestation had been amended on 1 April 2005 and moved to Chapter 6, Article 10, of the Penal Code. The crucial factor in criminal liability under the new wording was that the act must have been committed “in a way that is likely to violate that person ’ s sexual integrity”. Referring to the statements by the 2008 Sexual Offences Commission on the amended provision, the Government pointed out that after 1 April 2005 the provision on sexual molestation also covered situations like the one in issue, in which a person covertly filmed or photographed another person in a sexually intrusive way.", "69. The Court of Appeal held in its judgment of 16 October 2007 that the act could, at least in theory, constitute an attempted child - pornography offence. Both sexual molestation and child pornography fell within the domain of public prosecution, in which the principle of objectivity was applied, whereby no prosecution should be brought if the prosecutor deemed that the conditions for a conviction were lacking. In the present case, there was no documentation as to why the applicant ’ s stepfather was not also charged with attempted child pornography. It was therefore not possible for the Government to draw any conclusions concerning the specific grounds on which the prosecutor had decided to include only the offence of sexual molestation in the indictment. There were several possible reasons, though, why no prosecution for an attempted child pornography offence was brought.", "70. One reason for this might have been that some of the necessary conditions for such an offence were not, in the view of the prosecutor, fulfilled. An example of this might have been the criterion that the image could be considered “pornographic” in common parlance. That meant that not all depictions of naked children or pictures in which a child ’ s genitals were visible were liable to punishment, even if such images could stimulate some individuals ’ sex drive. What was in the picture and how the child was presented in the picture, inter alia, through the cutting of the picture, were of relevance to this assessment.", "71. Secondly, the wording of the provision at the relevant time could have contributed to a lack of expectation on the prosecutor ’ s part of securing a conviction for this offence, namely, the requirement that the pubertal development of the child was not complete or, if it was complete, that it was apparent from the image and its circumstances that the child was under 18 years of age.", "72. Thirdly, the fact that the applicant ’ s mother had destroyed the film immediately after the incident in September 2002, and the applicant and her mother did not report the incident to the police until September 2004, thus a long time after the incident had taken place, might have reduced the possibilities for the prosecution to prove that there had been a “pornographic” picture and that the applicant ’ s pubertal development at the time of the event, in September 2002, had not been complete, or that it was apparent from the circumstances that she had been under 18 years of age.", "73. As to the applicant ’ s claim for damages, the Government pointed out that by virtue of Chapter 29, section 6, of the Code of Judicial Procedure, when such a claim was joined to a prosecution, the court ’ s finding as to criminal liability was binding for the adjudication of the private claim. Accordingly, it had not been possible for the Court of Appeal to award damages based on Chapter 2, Article 3, of the Tort Liability Act as no crime within the meaning of the Penal Code had been made out. In the Government ’ s view, however, in the criminal proceedings the applicant, represented by counsel, could have relied on other grounds for her claim for damages against her stepfather than the act cited in the indictment, notably that he had caused her personal injury by acting negligently, under Chapter 2, section 1, of the Tort Liability Act, which would have covered any physical and psychological injury. Under that provision, damages could have been awarded also on the basis that an injury had been caused by non - criminal acts carried out wilfully or negligently.", "74. The Government pointed out that the courts could not award damages based on Article 8 of the Convention as a sole legal ground. The reason for this was that, although the Convention had been incorporated into Swedish law, and the Swedish Supreme Court had established the principle whereby an individual could be awarded damages from the State for violations of the Convention without the support of specific provisions in Swedish law, according to the Supreme Court ’ s case NJA 2007 (p. 747) this principle could not be applied to claims between individuals, as it would be difficult for an individual to foresee from the case-law of the Court when he or she could be liable to pay damages.", "75. Lastly, the ongoing legislative work concerning covert and illicit filming had so far resulted in the Government ’ s approval on 1 March 2012 of a proposal entitled “Intrusive Photography”, which had been modified by a proposal of 20 December 2012, and had in substance been approved by the Law Council on 7 February 2013. It was proposed that the legislation come into force on 1 July 2013. In concrete terms, under the proposal, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an offence of intrusive photography would also be punishable as preparation to commit such an offence.", "76. In view of the foregoing, the Government contended that the absence at the relevant time of a specific provision in Swedish legislation concerning acts of covert or illicit filming could not be considered to entail a breach of the applicant ’ s right to respect for private life under Article 8 of the Convention.", "3. Third - party observations", "77. The Human Rights Centre of Ghent University considered that the “significant flaw” test applied by the Chamber amounted to a lowering of standards in the Court ’ s jurisprudence on positive obligations. In its view, the Grand Chamber should instead endorse the principles of “priority-to-rights” and “effectiveness”. The former required that Convention rights be principally accorded greater weight than public interests in the proportionality analysis and that the State bear the burden of proving the proportionality of its inactions. The latter required the existence in practice of a means capable of protecting a Convention right. In the context of the positive obligation to investigate, any deficiency in the investigation that undermined the ability to establish the circumstances of the case or the perpetrator ’ s liability fell foul of the standard of effectiveness.", "C. The Court ’ s assessment", "1. General principles", "78. The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ).", "79. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private life that is in issue (see, for example, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 104, ECHR 2012; Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; and Mosley v. the United Kingdom, no. 48009/08, § 109, 10 May 2011 ). Where a particularly important facet of an individual ’ s existence or identity is at stake, or where the activities at stake involve a most intimate aspect of private life, the margin allowed to the State is correspondingly narrowed ( see Mosley, cited above, § 109 ).", "80. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 of the Convention and in other instances under Article 8 taken alone or in combination with Article 3 – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see, inter alia, Osman v. the United Kingdom, 28 October 1998, §§ 128-30, Reports of Judgments and Decisions 1998 ‑ VIII, §§ 128-30; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A v. Croatia, no. 55164/08, § 60, 14 October 2010; and Đorđević v. Croatia, no. 41526/10, §§141-43, ECHR 2012).", "81. In respect of children, who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge and effective deterrence against such serious breaches of personal integrity (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V, and M.P. and Others v. Bulgaria, no. 22457/08, § 108, 15 November 2011). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012, and Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III).", "82. Regarding, more specifically, serious acts such as rape and sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that efficient criminal - law provisions are in place (see, for example, X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, and M.C. v. Bulgaria, cited above, § 150). This obligation also stems from other international instruments, such as, inter alia, Articles 19 and 34 of the United Nations Convention on the Rights of the Child and Chapter VI, “Substantive criminal law ”, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (see paragraphs 51 and 52 above).", "83. Concerning such serious acts, the State ’ s positive obligation under Articles 3 and 8 to safeguard the individual ’ s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, among other authorities, C.A.S. and C.S. v. Romania, cited above, § 72; M.P. and Others v. Bulgaria, cited above, §§ 109 ‑ 10; and M.C. v. Bulgaria, cited above, § 152) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, C.A.S. and C.S. v. Romania, cited above, § 72), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007, and Szula v. the United Kingdom ( dec. ), no. 18727/06, 4 January 2007).", "84. As to acts which do not attain the seriousness of those in issue in X and Y v. the Netherlands (cited above ) and M.C. v Bulgaria (cited above), the Court has examined under Article 8 the State ’ s obligation to protect, for example, a minor against malicious misrepresentation (see K.U. v. Finland, no. 2872/02, §§ 45-49, ECHR 200 8). The act in that case did not involve any physical violence, but could not be considered trivial as it entailed a potential threat to the minor ’ s physical and mental welfare, brought about by the impugned situation, namely, that he was made the target for approaches by paedophiles. The act constituted a criminal offence under domestic law and the Court considered that practical and effective protection of the applicant required the availability of a remedy enabling the actual offender to be identified and brought to justice.", "85. More generally, however, in respect of less serious acts between individuals, which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see, mutatis mutandis, X and Y v. the Netherlands, cited above, §§ 24 and 27, and K.U. v. Finland, cited above, § 47 ). The Court notes, for example, that in some previous cases concerning the protection of a person ’ s picture against abuse by others, the remedies available in the member States have been of a civil-law nature, possibly combined with procedural remedies such as the granting of an injunction (see, inter alia, Von Hannover, cited above; Reklos and Davourlis v. Greece, no. 1234/05, 15 January 2009; and Schüssel v. Austria ( dec. ), no. 42409/98, 21 February 2002).", "2. Application of the above-mentioned principles to the present case", "86. The Court observes that the Court of Appeal found that the applicant ’ s stepfather ’ s act constituted a violation of her personal integrity (see paragraph 23 above). The Court endorses this finding and considers, on the one hand, that the circumstances were aggravated by the fact that the applicant was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. This event affected the applicant in highly intimate aspects of her private life. On the other hand, it observes that the offence in question did not involve any physical violence, abuse or contact. While noting the domestic courts ’ finding that her stepfather ’ s act was certainly reprehensible, in the Court ’ s view the act in question did not attain the seriousness of the grave acts in the case-law cited above which concerned rape and sexual abuse of children (see paragraph 81 above), considered not only under Article 8 of the Convention but also Article 3.", "87. On the latter point, it is worth noting that the applicant, apart from complaining about the lack of a criminal remedy with reference to the construction of the molestation offence and the absence in Swedish legislation of a separate offence of covert or illicit filming, also complained that the Swedish system did not afford her a civil remedy to protect her against her stepfather ’ s act. More specifically, the applicant maintained that the domestic courts had not fulfilled their positive obligations on account of their failure to award her compensation either on the basis of the Tort Liability Act or the Convention. Accordingly, the applicant did not claim that recourse to criminal law was the only way that Sweden could fulfil its obligation under Article 8 to protect her against her stepfather ’ s act.", "88. The applicant did not complain about the effectiveness of the criminal investigation carried out by the Swedish authorities. The Court has not found any evidence that the manner in which the investigating authorities and the public prosecution carried out their tasks was ineffective in safeguarding the applicant ’ s physical integrity, or that they failed to comply with their positive obligation to conduct an effective prosecution in order to ensure adequate protection of the applicant ’ s rights under Article 8 of the Convention.", "89. In the light of these preliminary observations, the Court will proceed to examine whether, in the specific circumstances of the case before it, Sweden had an adequate legal framework providing the applicant with protection against the concrete actions of her stepfather and will, to this end, assess each of the remedies allegedly available to her.", "90. This approach, it should be emphasised, differs from that followed by the Chamber, which affirmed that “only significant flaws in legislation and practice, and their application, would amount to a breach of the State ’ s positive obligations under Article 8”. This was with reference to the terms used in M.C. v. Bulgaria (cited above, § 167) in relation to the scope of the State ’ s positive obligations under Articles 3 and 8 of the Convention in affording protection against rape and sexual abuse. However, in that judgment the Court had applied the “significant flaw” test to “alleged shortcomings in the investigation ”, pointing out that it “was not concerned with allegations of errors or isolated omissions” (ibid., § 168) and holding that the shortcomings were “significant” (see, for instance, M.C. v. Bulgaria, cited above, §§ 179 and 184; see also M. and C. v. Romania, no. 29032/04, §§ 112 et seq., 27 September 2011; compare and contrast Siliadin v. France, no. 73316/01, § 130, ECHR 2005 ‑ VII, where such wording was used in relation to a review of legislation and practice under Article 4 of the Convention ).", "91. The Grand Chamber considers that such a significant - flaw test, while understandable in the context of investigations, has no meaningful role in an assessment as to whether the respondent State had in place an adequate legal framework in compliance with its positive obligations under Article 8 of the Convention since the issue before the Court concerns the question of whether the law afforded an acceptable level of protection to the applicant in the circumstances.", "(a) Child pornography", "92. From the outset, the Court notes that a considerable part of the parties ’ pleadings before it were devoted to the existence under Swedish law of the offence of attempted child pornography and its relevance to the case under consideration. This had its background in the fact that when acquitting the applicant ’ s stepfather of the charge of sexual molestation (under Chapter 6, Article 7 § 3, of the Penal Code) in its judgment of 16 October 2007, the Court of Appeal affirmed in an obiter dictum that, considering the applicant ’ s age, the act in question could, at least in theory, have constituted attempted child pornography under Chapter 16, Article 10a, of the Penal Code (see the provisions cited in paragraphs 31 - 32 above). However, since no charge of that kind had been brought against the applicant ’ s stepfather, it could not examine whether he could be held liable for such a crime (see paragraph 24 above).", "93. The Government were of the opinion that the type of act in issue in the applicant ’ s case could, under certain circumstances, fall not only within the provisions on sexual molestation but also within those on attempted child pornography.", "94. However, whilst acknowledging that no information was available as to whether at the relevant time the public prosecutor had given any consideration to indicting the applicant ’ s stepfather with attempted child pornography, the Government enumerated a number of possible reasons why the prosecutor might have decided not to do so, notably a series of difficulties in adducing sufficient evidence to show that there had been a “pornographic” picture (see paragraphs 69 to 72 above). For instance, they pointed out that the applicant ’ s mother had destroyed the film immediately after the incident in September 2002 and that the applicant and her mother had not reported the incident to the police until September 2004, thus a long time after the incident had taken place.", "95. The Court has further taken note of the fact that, in the applicant ’ s view, expressed with reference, inter alia, to the preparatory works to the provision on child pornography and to a legal opinion (see paragraph 61 above), even if the film had existed her stepfather could not have been convicted of attempted child pornography. This was because the basic condition for the offence, namely that the picture in question be “pornographic”, was absent. Images of a 14 -year-old girl undressing before taking a shower in an otherwise everyday situation could not be regarded as pornographic within the meaning of Chapter 16, Article 10a, of the Penal Code concerning child pornography. In order for the film to be pornographic, the applicant ’ s stepfather would have had to manipulate the film, for example by making it appear as if she had been posing for him, or otherwise place the film in a pornographic context. Had a charge been brought for the offence of attempted child pornography in the instant case, it would not have had any prospect of success. The applicant requested the Court to disregard the existence of this offence under the relevant national law in its examination of her complaint.", "96. The Court observes that the term “pornographic picture” was not defined in the Penal Code and that the preparatory works referred to by the applicant stated that", "“a certain prudence was called for, so that the criminalised area would not become too wide or difficult to assess. It was not the intention to criminalise every exposure of naked children or all pictures in which a child ’ s genitals may be perceived, even if such pictures may stimulate some people ’ s sexual instincts. In order for the handling of a picture to be illegal, it was a condition that it be pornographic according to common parlance and general values” (see paragraph 33 above).", "97. Against this background, the possibility that the offence of attempted child pornography might have afforded the applicant protection in respect of the specific act in issue seems rather theoretical. The Court is not convinced that her stepfather ’ s act was covered by the said offence and sees no need in the particular circumstances to speculate on what the implications would have been for the protection of the applicant ’ s right to respect for her private life under Article 8 of the Convention had a charge for such conduct also been brought.", "( b ) Sexual molestation", "98. Another issue is the question whether the offence of sexual molestation provided the applicant with the protection required by Article 8 of the Convention. Before 1 April 2005, the relevant part of the provision on sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code read as follows:", "“[ A sentence for sexual molestation shall be imposed] if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards the latter in a way that flagrantly violates a sense of propriety.”", "99. The applicant ’ s stepfather was convicted accordingly by the District Court on 14 February 2006. The Court of Appeal acquitted him by a judgment of 16 October 2007 since it considered that, legally, the act could not constitute sexual molestation. The Court of Appeal found it established that his motive had been to film the applicant covertly for a sexual purpose. It was thus regarded as certain that he did not intend the applicant to find out about the filming. Nor, according to the court, was he indifferent to the risk that she would find out about it. The Court of Appeal then referred to a judgment (NJA 1996, p. 418) in which the Supreme Court had held, among other things, that covert filming was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and although finding that the act in question constituted a violation of personal integrity, notably in the light of the applicant ’ s age and relationship to her stepfather, the Court of Appeal found that he could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. Even if she had indeed obtained knowledge of the filming afterwards, the court reiterated, this knowledge was not covered by her stepfather ’ s intent. The Supreme Court refused leave to appeal on 12 December 2007.", "100. In order for the offence of sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code to be made out, it was thus a requirement when carrying out the act that the offender intended that the victim find out about the sexual molestation or that the offender was indifferent to the risk that the victim would find out about it. In other words, the victim could not be considered sexually molested unless he or she was aware of the molestation. It will be recalled that the applicant ’ s stepfather was indeed convicted of sexual molestation under the said provision as regards the two counts of indecent behaviour against the applicant ’ s 16-year-old cousin, namely, for having caressed her thigh and for having expressed his desire to have sex with her (see paragraph 14 above).", "101. This interpretation of the provision on sexual molestation by the Court of Appeal was confirmed in another case by the Supreme Court in a judgment of 23 October 2008 (NJA 2008, p. 946) (see paragraph 40 above). The Supreme Court acquitted a person of molestation and reiterated at the same time that Swedish law contained no general prohibition against covert filming. It further noted that although the need for a strengthened legal framework in this regard had been acknowledged in Swedish legislative work as early as the 1960s, it had so far not led to any concrete results. It found it highly questionable whether the fact that acts of filming an individual in situations where such filming seriously violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention.", "102. The applicant maintained that the construction of the provision on sexual molestation as worded before 1 April 2005 was open to criticism. In so far as this criticism was not only aimed at the legislators but also aimed at the interpretation by the Court of Appeal in its judgment of 16 October 2007, and subsequently confirmed by the Supreme Court in another case, the Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). The Court agrees with the applicant, however, that it was not on account of a lack of requisite evidence, as maintained by the Government, that her stepfather was acquitted of sexual molestation, but rather, as pointed out by the Court of Appeal, because, legally at the relevant time, the act could not constitute sexual molestation.", "103. The provision on sexual molestation was amended on 1 April 2005, thus after the act in the present case had been committed in September 2002, and before the acquittal of the applicant ’ s stepfather in the criminal proceedings. Thereafter, the provision on sexual molestation also included acts carried out “in a way that [was] likely to violate that person ’ s sexual integrity”. Subsequently, the 2008 Sexual Offences Commission stated that in their view the amended provision included actions directed at persons who were unconscious or asleep and that it could also be used in situations where a person had covertly filmed or photographed another person in a sexually intrusive way.", "104. The Court observes that the Government have not pointed to any domestic case - law in which the amended provision on sexual molestation was applied to covert filming carried out after 1 April 2005. In any event, it suffices to conclude that the provision on sexual molestation as worded before 1 April 2005, and interpreted in the present case by the Court of Appeal in their judgment of 16 October 2007, which became final when the Supreme Court refused leave to appeal, could not legally cover the act in issue and thus did not protect the applicant against the lack of respect for her private life under Article 8 of the Convention.", "( c ) Recent legislation on covert filming", "105. Nor does it appear that the above-mentioned gaps in the substantive protection of the applicant ’ s Article 8 rights were in any way remedied by any other existing national provisions at the time. In this connection, the Court cannot but note that the absence of such provisions has long been a matter of concern in Sweden and that many other member States have legislation in place covering the isolated act of covert or non-consensual filming/photographing of an individual (child or adult) for other than sexual purposes, either under criminal or civil law (see paragraph 55 above). According to the Supreme Court judgment of 23 October 2008 (NJA 2008, p. 946 – see paragraph 40 above ) the need for a strengthened legal framework against covert filming had already been acknowledged in Swedish legislative work in the 1960s, but had not yet led to any concrete results. The Supreme Court found it highly questionable whether the fact that acts of filming of an individual in situations where such filming deeply violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article 8 of the Convention (see also paragraph 101 above).", "106. The Court notes that the most recent proposal by the Government, of 20 December 2012, entitled “Intrusive Photography”, has been adopted by Parliament. In concrete terms, under the new provisions, which came into force on 1 July 2013, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an intrusive photography offence would also be punishable as preparation to commit such an offence (see paragraph 43 above).", "107. The Court further observes that the legislation is designed to cover an act such as the one in issue in the present case. It also notes that the principles laid down in the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, which are part of the Swedish Constitution, notably as regards the protection of procurers of information to the media, were carefully considered before the said bill could be presented to Parliament. However, as was undisputed, the applicant could not rely on the new legislation regarding an incident which took place in 2002 and could not avail herself of any such protection of her right to respect for her private life.", "( d ) Civil-law remedies", "108. In this case recourse to the criminal law was, in the Court ’ s view, not necessarily the only way that the respondent State could fulfil its obligations under Article 8 of the Convention. Accordingly, the question arises whether the applicant had a civil remedy available to her.", "109. In this connection, it is to be observed that the applicant joined her civil claim for damages against her stepfather to the criminal proceedings against him. Thus, on 20 January 2006, represented by counsel, the applicant submitted a claim for damages of SEK 25,000, with SEK 15,000 of this sum as compensation for violation of her personal integrity and SEK 10,000 for pain and suffering. As the basis for her claim the applicant referred to “the criminal act for which her stepfather was being prosecuted”.", "110. According to the Government, the claim was founded partly on section 1 and partly on section 3 of Chapter 2 of the Tort Liability Act (see paragraph 37 above).", "111. In its judgment of 14 February 2006 convicting the applicant ’ s stepfather, the District Court ordered him to pay the applicant damages in the amount of SEK 20,000. However, when acquitting him in its judgment of 16 October 2007, because the act could not legally constitute sexual molestation, the Court of Appeal also dismissed the applicant ’ s claim for damages. The Government pointed out in this connection that by virtue of Chapter 29, section 6, of the Code of Judicial Procedure, when a civil claim is joined to a prosecution, the court ’ s finding in the matter of criminal liability is binding for the adjudication of the private claim. Accordingly, it was not possible for the Court of Appeal to award damages based on Chapter 2, section 3, of the Tort Liability Act as no crime within the meaning of the Penal Code had been made out. This conclusion is consistent with the statement of the Supreme Court in the subsequent judgment, NJA 2008, p. 946 (see paragraph 40 above) of 23 October 2008, that Swedish law contained no general prohibition against covert filming and that in cases where such filming did not constitute a crime, damages could not be awarded.", "112. Nevertheless, the Government contended that in the criminal proceedings the applicant could have relied on other grounds in support of the claim for damages directed against her stepfather, namely, that he had caused her personal injury by acting negligently under Chapter 2, section 1, of the Tort Liability Act, which could have covered any physical and psychological injury (see paragraph 73 above).", "113. In this regard, it should be borne in mind, however, that the applicant ’ s stepfather had at no time during the investigation or the criminal proceedings alleged that he had left the camera in recording mode in the laundry basket in the bathroom by accident. On the contrary, he acknowledged that it had been a wilful but impulsive act. Therefore, in the Court ’ s view, the applicant and her counsel could not be expected to have invoked negligence just for the sake of ensuring that her claim be dealt with in the event that the act was not deemed to be covered by the offence of sexual molestation.", "114. Accordingly, the Court is not convinced that in the specific situation at hand, where the act in issue was not legally covered by the provision on sexual molestation and where covert filming in general did not constitute a crime, the applicant had a civil remedy available to her.", "( e ) Compensation on the basis of the Convention", "115. Lastly, the Court has considered the applicant ’ s contention that the domestic courts in the criminal proceedings could have awarded her compensation on the basis of the Convention alone but had failed do so of their own motion.", "116. As pointed out by the Government, although the Supreme Court had established a principle whereby an individual could be awarded damages from the State for violations of the Convention without the support of specific provisions in Swedish law, this could not apply to claims between individuals as it would be difficult for an individual to foresee from the Court ’ s case-law when he or she could be liable to pay damages (NJA 2007, p. 747, see paragraph 47 above). Having regard to the Swedish domestic practice on compensation for violations of the Convention (see paragraphs 45 to 50 above), including the aforementioned Supreme Court ruling, the Court is not persuaded that this alleged avenue of redress really existed or that it could have made up for the absence of a civil remedy in the specific situation at hand as found above.", "( f ) Conclusion", "117. Having regard to the all the above-mentioned considerations, the Court is not satisfied that the relevant Swedish law, as it stood in September 2002 when the specific act of the applicant ’ s stepfather covertly attempting to film the applicant naked in their bathroom for a sexual purpose occurred, ensured protection of her right to respect for her private life in a manner that, notwithstanding the respondent State ’ s margin of appreciation, complied with its positive obligations under Article 8 of the Convention. The act in question violated the applicant ’ s integrity; it was aggravated by the fact that she was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. However, as the Court has found above, neither a criminal remedy nor a civil remedy existed under Swedish law that could enable the applicant to obtain effective protection against the said violation of her personal integrity in the concrete circumstances of her case.", "Accordingly, there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "118. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "119. The applicant claimed 20,000 euros (EUR) in compensation for non - pecuniary damage.", "120. The Government found that amount excessive. In their view, an amount not exceeding a total of EUR 3,000 would be sufficient to compensate the applicant.", "121. The Court considers that the applicant must have suffered non - pecuniary damage that is not sufficiently compensated for by the mere finding of a violation of Article 8. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "122. The applicant claimed 516,410 Swedish kronor (SEK) (corresponding to approximately EUR 60,500) including value - added tax (VAT) for costs and expenses, which comprised:", "( i ) SEK 146,250 for lawyers ’ fees incurred in the proceedings before the Chamber, equal to 65 hours at an hourly rate of SEK 1,800 (exclusive of VAT);", "( ii) SEK 353,750 for lawyers ’ fees incurred in the proceedings before the Grand Chamber, equal to 141.50 hours at an hourly rate of SEK 2,000 (exclusive of VAT);", "( iii) SEK 11,021 for a legal opinion obtained;", "( iv) SEK 5,389 for travel costs and an allowance for expenses incurred by her three counsel in attending the hearing before the Grand Chamber.", "In connection with the latter item, the applicant also claimed compensation for expenses amounting to EUR 3,260.60 for flight tickets and accommodation costs incurred by her and her three counsel in attending the hearing before the Grand Chamber.", "123. The Government found the lawyers ’ fees excessive both as to the hours and the hourly rate. They considered a total amount of 80 hours reasonable as well as an hourly rate corresponding to the Swedish hourly legal aid fee, which for 2013 was SEK 1,242 ( exclusive of VAT). Regarding the other costs and expenses, the Government found that the cost of the legal opinion had been unnecessarily incurred. They did not object to the remainder of the claims as such.", "124. According to the Court ’ s established case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum.", "125. In respect of the lawyers ’ fees, be this before the Chamber or the Grand Chamber, the Court can accept an hourly rate as claimed by the applicant. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 25,000 including VAT (see, for example, X and Others v. Austria [GC], no. 19010/07, § 163, ECHR 2013; Nada v. Switzerland [GC], no. 10593/08, § 245, ECHR 2012; and Al- Jedda v. the United Kingdom [GC], no. 27021/08, § 117, ECHR 2011).", "126. Turning to the other costs and expenses before the Grand Chamber, it appears that the amount included plane tickets for five persons. The Court can only award travel expenses for the applicant and her three counsel. It therefore awards the applicant EUR 4,700 under this head.", "C. Default interest", "127. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants, E., H., L. and T. were born in 1960, 1961, 1963 and 1965 respectively and live in Scotland. E., L. and T. are sisters and H. is their brother.", "A. The circumstances of the case", "9. The applicants’ mother had six children by her husband. After the death of the applicants’ father in 1965, their mother cohabited with W.H. Two further children were born in that relationship.", "10. The family, living in a local authority flat in Dumfries, were known to the social services of Dumfries and Galloway Regional Council (“the local authority”). The records provided by the Government show that they were principally concerned from 1970 onwards in relation to the mother’s severe financial difficulties. The mother suffered from bad health and it was noted in 1973 that when she had a broken arm she always kept one of the children off school (presumably to help in the home) and was likely to be summoned before the Education Sub-Committee. Problems with rent and electricity arrears were noted as recurring through 1975 and 1976, as well as continuing health difficulties suffered by the mother. An entry on August 1976 noted that the eight children were all happy though overcrowded and that there were no behavioural problems.", "11. On 16 November 1976, it was recorded however that E., the first applicant, who had been causing concern as she had been staying out at night, was found semi-conscious at a nearby flat, having taken an overdose. It was noted that the mother was to take her to attend a psychiatric clinic. The medical notes recorded that E. complained that she disliked intensely her mother’s cohabitee W.H. who hit her, shouted and upset her so much that she ran away with intent to kill herself.", "12. A social work report dated 25 November 1976 noted that the family consisted of six daughters and two sons living with their mother. W.H., the father of the two youngest children, was recorded as not cohabiting and the mother had stated that she would not marry him as she would be worse off financially. The state of the home was said to fluctuate according to the mother’s health but was considered to be adequately furnished with a warm, friendly atmosphere. The mother had always demonstrated a great deal of concern for her children and had perhaps overindulged them at times. In spite of the fact that there was much juvenile delinquency in the area, this was noted as being the first time that any of her children had given cause for concern. The mother’s ambivalent attitude to school attendance was commented on.", "13. In December 1976, E. left school and the social services gave assistance in finding employment.", "14. On 7 January 1977, L., the third applicant, then aged 13, ran away from home, following an incident in which she claimed that W.H. had attempted to rape her. She was referred as an emergency by the police to the social services. The police interviewed all the family. It is not apparent that the family, in particular the children, were interviewed by social workers concerning the implications of L.’s disclosures. No steps were taken to refer them to the Reporter of the Children’s Hearing.", "15. On 7 January 1977, W.H. was arrested by the police and charged with indecently assaulting E. and L.", "16. On 8 January 1977, W.H. entered a guilty plea concerning charges involving offences of indecent behaviour against E. and L. before Dumfries Sheriff Court. The pleas were accepted by the prosecution and the case proceeded on the basis that W.H. had committed one act of indecency against E. between 20 October 1972 and 31 August 1976, and two acts of indecency against L. between 1 January 1975 and 7 January 1977. The Sheriff requested the social services to prepare social enquiry and psychiatric reports. W.H. was not detained pending sentence. According to the applicants, he returned to live at the applicants’ home.", "17. On 11 January 1977, the applicants stated that the police submitted a report to the children’s social worker, S., expressing concern that the children should be protected from further abuse. The Government have found no trace of any such report in existence.", "18. On 28 January 1977, W.H. appeared before the Sheriff for sentencing. The social enquiry report dated 18 January 1977 stated inter alia that the family lived in a four room local authority flat in an area where there was a high incidence of social problems. The home was adequately furnished and maintained to a reasonable standard. The mother was described as a caring woman who did not enjoy good health but who put her childrens ’ interests first. The family was considered as appearing a happy well-adjusted group though they were well known to the social services as they had been given assistance from time to time. The children attended school regularly and appeared happily settled. W.H. was recorded as admitting the offence and as being more than ashamed of his conduct, though he could offer no explanation for these actions. It was noted that he did not appear to realise fully the serious nature of these charges. Since the alleged offence he had obtained accommodation outside the applicants’ home - it indicated an address in the same apartment block. It was further noted that the mother was not prepared to accept the charges relating to this man and stated that they had plans to marry in the Spring as they had had a close relationship for many years. It was concluded that, in view of the serious nature of the offences, it would be necessary for firm control to be exercised over the accused for a period of time.", "19. The psychiatric report found that W.H. did not show any psychiatric abnormality. His criminal record showed one prior minor offence of dishonesty.", "20. W.H. was sentenced by the Sheriff to two years’ probation. The applicants state that this was with a condition that he cease to reside at the applicants’ address. The Government have found no record of that condition attaching to the probation order and stated that the probation file cannot now be found. They accepted however that it was the social services’ responsibility to supervise W.H.’s probation. According to the recollection of Mr M., who was the supervising officer for part of that period (after June 1977), he would have made it clear to W.H. that he was not permitted to live in the family home due to the nature of the offences. He recalled visiting W.H. at a separate address in Dumfries during this period and sending mail to that address. He believed that W.H. was living there and not at the applicants’ home. In the precognition annexed to the Government’s observations, Mr M., who was also probation officer for E. and acted as replacement for the family social worker, recalled however that he did have suspicions that W.H. might still be living at the family home and that on visiting the family home two or three times unexpectedly he found W.H. “just leaving”. He did not consider that there was sufficient evidence of W.H. breaching the conditions attached to his probation order to justify taking the matter further.", "21. The social worker, Mr R., visited the home on 22 occasions between 24 January and the end of June 1977 and did not see W.H. However, his notes recorded in March 1977 a suspicion that the mother was still cohabiting with W.H. When Mr M. took over the case, he noted that W.H. was not living there (social work case notes entry of 6 August 1977 ) and that W.H. was not contributing financially to his children. In his later affidavit, he stated that this entry was based on information from the mother. Entries indicated concerns about school attendance and that the mother had been repeatedly told that she should not keep the girls off school. In September 1977, it was noted that the school had expressed concerns about the welfare of T., the fourth applicant, which was attended to by a senior social worker. A school meeting concerning the children’s attendance was arranged but the mother and H., the second applicant, failed to attend. In November 1997, the social worker paid an unexpected visit to the home and found that W.H. was there. Both he and the mother denied that he was living there.", "22. According to a social enquiry report of 1 June 1977 drawn up by Mr R. when E. was charged with criminal damage before the Sheriff Court, she had left home in about February 1977. No reference was made to the past history of sexual abuse in the home though it was stated that she had left home after a scene with the man who was at that time co-habiting with her mother. E. was found guilty of malicious mischief on 15 June 1997 and sentenced to two years’ probation. Social work case notes also recorded that by March 1977 she had left home. According to her claims lodged in later proceedings, E. finally left home on her 17 th birthday, in October 1977.", "23. School attendance was still recorded as a problem in December 1977 for the remaining girls at home. H., the second applicant, had now left school officially. In her later statements, L. recalled that during 1977 she was on occasion taken into temporary local authority care in connection with problems of running away.", "24. In January 1978, the mother was recorded as giving her various health problems as the reason for keeping L. and T. off school. It was noted that her speech was slurring, among other symptoms, but that she had shown reluctance in going to see her doctor or in allowing the social workers to approach her doctor. In February 1978, she was keeping one or both girls off school to help her at home or to run messages.", "25. In March 1978, it was noted that the house was becoming even more disordered and the younger children and the mother were becoming more unkempt. The mother gave the impression of having given up. In June 1978, the mother was finally referred through her doctor for hospital tests, though she failed to attend the appointments set. In October 1978, it was noted that the house stank and that the carpet was matted. The mother informed the social worker that W.H., who lived in Derbyshire, had invited her to go and live with him there. She gave up that idea shortly afterwards.", "26. In January 1978, L. was referred to a Children’s Hearing for failure to attend school. In the background report drawn up by Mr M. for the hearing, explanation was given of the financial and health difficulties of the mother and it was stated that it was the mother who kept L. from school to help in the home. There was no reference to the history of sexual abuse in the home. In April 1978, L. was living temporarily in a social work establishment known as the Closeburn Assessment Centre. On 22 April 1978, she ran away from the home and was returned. At a date unspecified, she went back to live at home.", "27. H., aged 17, left the family home in or about 1978.", "28. On or about 15 January 1979, L. left home after an argument with her mother about going out at night and was brought back by the police who referred the matter to the social services. After discussion with the mother, L. was taken into care by the social services until 20 February 1979.", "29. On 16 March 1979, the school attended by L. called a multi-disciplinary meeting to discuss the problems of non-attendance of a number of the children of the family. Though a social worker was invited to attend, none was present.", "30. On 28 March 1979, L. was transferred to a residential centre but left the following day to return home. At about the same time, the applicants’ mother changed address. L. lived with her there for about a week and then left to live with a friend. She took an overdose and was admitted to hospital. A letter dated 11 April 1979 from the psychiatric registrar to L.’s G.P. noted that “... she doesn’t get on well with her mother’s cohabitee. The relationship with Mum’s cohabitee seems a bit peculiar”.", "31. After being discharged from hospital on 9 April 1979, L. went to live with a 50 year old man with whom she had a sexual relationship. On 17 April 1979, the police picked up L. who told them about the relationship. The mother agreed that L. was beyond her control and agreed that she be put in a place of safety. An order lasting one month was made to that effect. From 18 April 1979, she was made the subject of compulsory care measures by the local authority which brought her before the Children’s Hearing. In the background report drawn up by the social worker Mr E. for the hearing, details were given of the mother’s financial difficulties and ill-health and comment was made that, apart from truancy, the family had not been in any trouble. No reference was made to the past sexual abuse. The hearing extended the place of safety order. L. was sent to Closeburn Assessment Centre from 18 April to 18 June 1979. She appears to have remained there for most of the period until her 16 th birthday on 28 July 1979, at which date she ceased to be subject to the legislation governing the compulsory education of children. Efforts were then made to find employment for her. Social work notes of 1 August 1979 concerning L. recorded that, when the social worker accompanied her to the mother’s home for a visit, a man described as L.’s stepfather was present in the living room.", "32. Entries in the social work notes for the family during 1979 continued to emphasise financial difficulties. An entry in February 1979 referred to problems of school attendance of ten years’ standing and the mother’s frequent summoning before the school council.", "33. On 7 April 1979, it was noted that the family had moved to a larger home, a self-contained house provided by the local authority.", "34. Through 1979-1981, financial difficulties were noted as continuing, and the mother’s health and general state deteriorating to such an extent that she rarely got out of bed.", "35. The applicants’ mother died in 1981. It appeared that she had been suffering, inter alia, from undiagnosed multiple sclerosis. The applicants’ elder sister (aged 22) took on the mothering role in the family home.", "36. T. left home in November 1984, after she had become pregnant and had a child. By January 1988, she was living at an address with her 3 year old daughter and was in contact with the social services concerning her financial problems. In February 1988, she indicated to her social worker that she had been subject to sexual abuse in the past. In April 1988, she disclosed that this had involved her step-father W.H. as well as other men, one of whom had been convicted of rape. As at the time she was in regular contact with W.H., whom she considered had reformed, she was counselled concerning the risk to her own child.", "37. Following counselling, E., L. and T. reported the history of abuse by W.H. to the police in or about November 1988. In her statement of 13 January 1989, L. stated that after W.H. had been arrested in 1977, various social workers used to come around and she and the others had had to tell them that W.H. was not living with them anymore. When they came to the house, W.H. used to hide and her mother used to keep the children out of their way if possible. She recalled wanting to tell a social worker what was happening but was so petrified of W.H. that she did not. W.H. continued to interfere with her and had sex with her a couple of times after the court case.", "38. Charges were brought against W.H. of committing sexual offences against E., L. and T.", "39. At his trial before the High Court on 20 July 1989, W.H. pleaded guilty to four charges and not guilty to two charges. The prosecution accepted his pleas. W.H. was duly convicted of serious acts of indecency against E. between 19 October 1967 and 18 October 1972 and of further such acts against her between 1 September 1976 and 18 October 1976; of serious acts of indecency against L. between 28 July 1968 and 31 December 1974; and of similar acts against T. between 28 August 1974 and 27 August 1978. Only part of the latter charge concerned the period after W.H.’s earlier conviction on 8 January 1977.", "40. The trial was adjourned for sentencing reports to be obtained. On 20 July 1989, the High Court sentenced W.H. to a two year suspended sentence of imprisonment, having regard to the reports which indicated that he now lived in Yorkshire and that most of the offences predated his earlier conviction in 1977. However, it was only at this time that the applicants alleged that they became aware that W.H. had been subject to criminal proceedings in 1977 and that he had been placed on probation on the condition that he did not reside in their home.", "41. On 18 June 1992, the four applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties, in particular, that W.H. had breached his probation order by residing at the family home and that the social services had, or ought to have, known this and had failed to report the breach to the court or to take the children into care.", "42. On 4 January 1996, following the decision of the House of Lords in X. and Others v. Bedfordshire County Council ([1995] 3AER 353) and in the light of counsel’s advice that their case was indistinguishable, the applicants consented to an order that their action be dismissed.", "43. In or about 1992 to 1993, the applicants applied for compensation to the Criminal Injuries Compensation Scheme in respect of the abuse suffered. In their applications, they alleged as follows:", "(i) E. stated that from about 1967 she suffered 10 years of abuse from W.H. The first incident which she recalled was when she was 6 or 7 when he struck her, sending her flying into the wall. Soon after, he began coming into her room at night and doing things to her, requiring her to masturbate him. If she cried, he would punch her in the face. From the age of 12, he used to make the girls have a bath together and would touch them all over their bodies, inserting his finger into them. Often he would keep her off school and would abuse her sexually. He assaulted her often, coming up behind her to hit her on the back of the head. He also used to stand on her naked feet with his shoes on and twist, pinch her with his nails and punch her. This physical abuse happened on a daily basis. He would also get her and the others to strip to the waist and hit each other with dog chains. This conduct continued regularly until she left home on her 17 th birthday ( 19 October 1977 ). She recalled going to the social services when she was aged 14 and telling them that W.H. was living with them when he was not supposed to. Nothing happened as a result. While the social services were coming to the house, she did not remember them talking to her. She recalled that this period was before she was 14 or 15, before 1974 or 1975. When she was 15, she started running away from home. On one occasion she took pills. When she was visited by the police in hospital, she told them that W.H. was interfering with her. She also told this to a psychiatrist whom she saw soon after. However, W.H. continued interfering with her. W.H. was only arrested after L. had run away from home in January 1977. E. had suffered serious problems since that time, having made several suicide attempts and having developed a severe drink problem. A psychiatric report of 24 April 1992 concluded that her symptoms accorded with a diagnosis of severe post traumatic stress disorder.", "(ii) H. stated that he suffered from physical abuse, assaults and threats of violence from W.H. from about 1967. From about the age of 6 or 7, W.H. used to punch him in the stomach and bash him against the wall. He also made him and the others strip to the waist and punch and hit each other with chains. These relentless assaults went on regularly until he left home during 1978. A psychiatric report of 9 June 1992 concluded that he had long term relationship problems, poor self confidence and long standing personality difficulties.", "(iii) L. stated that she had suffered sexual and physical abuse from W.H. from 1969 until she left home in about 1979 and on occasion after that. W.H. had started interfering with her when she was about 5 or 6. The first thing she remembered was him bathing her with her sister E. and rubbing her private parts. Hardly a day went past when he did not do something of a sexual nature to her (e.g. touching her breasts or private parts) or batter her. When she was older, he made her touch him on his private parts and perform oral sex. He made her and the other children hit each other with chains and whips and would sometimes join in. She was often left with bad bruises and a bleeding nose. From the age of 11 or 12, he had sexual intercourse with her several times. When she ran away in January 1977, she told the police and he was arrested. However, he returned home and started interfering with her again, having intercourse with her and punching or kicking her if she refused. She ran away again in Spring 1977 and was put into a home, first in Dumfries, then Annan and finally Closeburn, which she eventually left in 1979 when she was 16. At that point, she did not return home but went to stay with her sister and then embarked in a series of relationships. When she visited her mother on 1 January 1980, W.H. put his hands up her skirt but let her go when she threatened to tell her boyfriend. On another occasion in 1981, W.H. tried to fondle her but she got up and left. She had never been able to tell anyone about these things as she was scared of him and thought that he would severely assault her. A psychiatric report of 24 April 1992 concluded that her symptoms, including nightmares and sleep disturbance, accorded with a diagnosis of severe post traumatic stress disorder.", "(iv) T. stated that she had suffered sexual and physical abuse from W.H. from about 1971 to 1989. Though she did not remember anything specifically before the age of 9, she slept in the same bed as L. and remembered him coming naked into the bed with them. From an early age, he used to stand on her naked feet in his shoes and twirl round, nip her and punch her in the stomach. She had black eyes occasionally. When she was 9, she remembered him making her touch him and masturbate him. She had to do that to him two or three times a week when he came home from work. He then started keeping her off school and would lie down on the bed naked, making her take her clothes off and masturbate him. This occurred two or three times a week. When she was 10 or 11, he began to touch her breasts and rub his penis over her until he ejaculated. When she was 14, he forced her to have sexual intercourse with him. He did not repeat that but continued touching her and making her masturbate him or have oral sex. This continued until 1984 when she was able to leave home – she deliberately got pregnant by having sex with someone she knew, so that the local authority would provide her with accommodation away from home. In 1987, W.H. started coming to her house and would try to touch and grab her. She became very depressed and suicidal. She then told the Family Centre about the abuse. A psychiatric report of 24 April 1992 concluded that her symptoms, including low self-esteem, fear, mistrust and depression, accorded with a diagnosis of severe post traumatic stress disorder.", "44. Though the applicable provisions did not permit claims for injuries from violence arising before 1 October 1979 where the victim and assailant were in the same household, the Criminal Injuries Compensation Board (“CICB”), in an apparent oversight, made an assessment awarding 25,000 pounds sterling (GBP) to E., L. and T. for general damages. They appealed against the failure to award damages for loss of earnings. As it was noted that in the proceedings for the fourth applicant T. that most of her injuries had arisen before 1979, the applicants E. and L. withdrew their appeals to prevent their awards being reconsidered altogether. In deciding T.’s appeal, the Board decided that as she had sustained some damage post-October 1979 it would not disturb the award but made no award for alleged loss of earnings or damage to employment prospects. H. did not receive any award. A letter dated 23 July 1992 from the CICB indicated that his application had been rejected in that his claim had not been made within three years of the incident giving rise to the claim and the Chairman had decided not to waive the requirement in his case.", "45. On 30 January 1996, the applicants requested the Commissioner for Local Administration in Scotland to undertake an investigation into their allegations of negligence and maladministration by the local authority. By letter dated 8 February 1996, the Ombudsman stated that he had no jurisdiction pursuant to section 24(6)c of the Local Government (Scotland) Act 1975, which precluded investigations where the complainants had a remedy by way of proceedings in a court of law, and that, even if he had jurisdiction, he would not have undertaken an investigation due to the lapse in time since the events occurred. By letter of 22 February 1996, he declined to reconsider his decision.", "B. Social work expert reports submitted by the parties", "Reports by Ms Ann Black submitted by the Government", "46. The Government submitted two reports by Ms Black, a social work consultant who has worked for more than 30 years in the field of child care, principally in Scotland.", "47. In her first affidavit dated 26 March 2002, Ms Black stated that with the exception of cases of incest there was in the 1970s no real appreciation of the incidence of, and consequences for victims of, child sexual abuse within families. Circulars referred to non-accidental injury without specific reference to sexual abuse which was not recognised as a particular issue. It was only in the 1980s that literature began to arrive in the United Kingdom from the United States on the subject of child sex abuse and initially this was regarded as controversial. The first real recognition of the problem in the United Kingdom was a CIBA publication “Child Sexual Abuse in the Family” published in 1984. A Working Group on the topic was set up by the Social Work Services Group of the Scottish Office in which she was involved and which reported in 1985.", "48. According to her experience, during the 1970s and before, where a case of incest or sexual abuse had been identified, the focus would be on ensuring that the perpetrator was punished. Little or no attention was given to the needs of the victim and once the perpetrator was convicted that would be seen as the end of the matter. There was no real appreciation of the extent to which abusers might continue to abuse their victims over many years or of the skills of abusers in avoiding detection. Social workers were not given any specific training about child sex abuse. There was also the practice at the time of local authorities keeping their probation and child care functions separate, with social workers working separately rather than as part of a team and there was a tendency for there to be relatively little interaction between schools and social work departments.", "49. In her view, after W.H. had been convicted and sentenced to probation in January 1977, it would have been generally assumed that any continuing problem would have been resolved, particularly if a condition in his probation was that he was not allowed to live in the family home. No work would have been envisaged with the victims unless they were showing obvious distress or problems. A mere suspicion that the W.H. was in breach of the probation order, and his presence found in the house during the day, would not have been sufficient proof of breach. He was the father of two of the mother’s youngest children, contact with the family was not prohibited and his presence in the house would have even been seen as positive. Even if they had considered the possible breach of probation further, they would not have gone on to consider possible harm to the children. It would have been standard practice to make specific appointments to visit the home in order to avoid wasted time and she would not have expected the social worker to make spot checks or call at unexpected times to check on W.H.. As was the practice, social services provided support for the mother who had considerable problems in running the home, and would have had a tendency not to investigate the causes of any running away or of truancy, particularly where the child was close to school leaving age. Nor would it have been expected at the time for the social workers to make a point of talking individually to the children, unless for the purpose of a specific report.", "50. In her additional comments of 20 May 2002, added in the light of the examination of further documents, Ms Black noted that at the meeting convened by the school in March 1979 concerning L. the social work department had not sent a participant though invited to do so. The school problems drawn to the attention of the social services did not appear to have prompted the social worker to suggest a meeting to try to draw together the issues for the family and this meant that the full extent of the problems that L. and the others in the family faced were not discussed by the wider group of professionals who knew the family. By this time, the use of case conferences was well established in social work practice.", "51. She also noted that following E.’s overdose of pills in November 1976, the social services did not appear to react to E.’s dislike of W.H. and her allegations of an earlier sexual assault and his shouting and hitting. Nor was there any social work follow-up when L. ran away in January 1977, beyond a visit of the emergency social worker, or any discussion with E. and L. after W.H. had been sentenced. Even if social workers at the time were not aware of the incidence of sexual abuse, the incidents with the two girls and the evident distress shown by them should have usefully led to an attempt to discuss with them individually how things were at home, in particular to establish the severity of past incidents and whether any other children in the house were at risk of sexual or physical abuse.", "52. Further, in the light of Mr R’s report to the court which commented on the need for firm control of W.H. and the mother’s refusal to accept that he had committed the offences, this made the assurances given by W.H. and the mother that W.H. was not living in the home much less safe to rely on. Mr R. did not appear to have issued any warning to them about the consequences of breaching the probation order. When the report was made on E. in June 1977 there was no reference to the sexual abuse or home difficulties. Also the report to the Children’s Hearing on L. in January 1978 failed to give a full picture of her difficulties. Throughout the case there was an emerging pattern of different people not using the information available to assess the safety of the girls and W.H.’s adherence to the probation conditions. After the report on E. in June, it could have been expected that the workers involved in the family would have increased their scrutiny of the living arrangements in the family. The lack of detail in the reports on L. deprived the Children’s Hearing of vital information which could have led them to place L. on supervision and afforded more opportunity for her to speak about the home situation.", "53. Though by January 1977 E. was too old to be referred to the reporter of the Children’s Hearing, grounds existed for referring L. at that time. Given the abuse, her level of truancy, the poor financial and material circumstances in the family and the offence of W.H., coupled with allegations by E. as to shouting and hitting in the family home, she considered that a referral of L. ought to have been made. This would have given an opportunity for all the different agencies involved with the family to contribute to the discussion and for the Hearing to appreciate the full extent of the problems. Though L. might not have been removed in the first instances, a supervision requirement would have allowed closer contact and more individual work. The Reporter would also have had the opportunity to consider whether any other children in the household were in need of compulsory measures of care.", "54. She concluded that the failure to share significant issues with the Children’s Hearing about L., the failure to work collaboratively with the school, the lack of attention to the assessed need for firm control of the situation after W.H. was placed on probation and the lack of attention to the significance that the mother did not believe her daughters’ complaints against W.H., all contributed to a failure to help get the girls the support they were likely to need after the conviction of W.H. and disclosed a failure in the approach taken to the family by the social work department.", "Reports by Mr Richard Jack submitted by the applicants", "55. The applicants provided three reports dated 20 March, 13 May and 10 June 2002 by Mr Richard Jack, a consultant in social work with experience in social work practice over 28 years.", "56. He stated that from 1975, when circular SW1/75 was issued, a mult -disciplinary approach by professionals was promoted in respect of neglect and child protection, though sexual abuse was not explicitly referred to. While public and professional acknowledgement of a significant child abuse problem did not emerge until the mid-1970’s, in this case E. and L. had made disclosures which were believed and not in doubt. Literature as to the nature of the problem was available to practitioners, in particular with Kempe and Kempe’s work published in 1978, inter alia, identifying clear indicators as to the behaviour exhibited by abused children.", "57. Despite long-term problems with the family and notes of truanting dating back to 1973, there was minimal reference to dialogue between the social services and the education authority. There was no reference in the social work records to the disclosures made by E. to medical personnel or to a visit to her in hospital by an emergency social worker, disclosing a significant breakdown in communication. The family social worker Mr E. appears to have had no clear knowledge as to the situation, while Mr M., who later supervised probation of W.H., was not a qualified social worker and did not appear to have proper knowledge of the seriousness and persistence of the offences in issue.", "58. Once disclosures had been made by E. and L. in 1977, it would have been reasonable, given the ages of the children, to discuss W.H. with them outwith the presence of the mother. A serious discussion ought to have taken place in the social services as to the potential risks to the children in the household and at the very minimum a report should have been prepared for the Reporter to the Children’s Hearing. In fact there was nothing to suggest that the social services explored W.H.’s impact on the children in the family at all.", "59. The social service records noted clear suspicions that W.H. continued to live in the household. Though it was stated in the context of the probation order that firm control was needed, no steps were taken such as further enquiries from neighbours or the local police as to W.H.’s actual place of residence. Breach of the probation order was a very serious matter and should have triggered a referral of his case back to the court and of the children to the Reporter.", "60. When L.’s truancy was referred to the Children’s Hearing in 1978, there was no reference to the background of her running away in January 1977 or to the history of neglect and turbulent dynamics in the family. It was negligent of the social services not to provide the panel with full information. Nor when there was a case study meeting at the school in March 1979 did any social worker attend. There was never any multi-disciplinary case conference which reviewed in a full, objective and accurate manner the history and circumstances of the family." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "Probation", "61. Imprisonment is used in Scotland only where there is no alternative. One alternative is probation, which was at the relevant time imposed under section 384 of the Criminal Procedure ( Scotland ) Act 1975. When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order. In all cases the order requires the offender to be of good behaviour, conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment. Other requirements may be imposed, such as conditions as to the place of residence. If the offender fails to comply with requirements of the probation order, that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of the Social Work Department. The supervising officer has a degree of discretion where there is an apparent breach of the order. He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer’s behaviour. If he reports the matter to the court, the court then investigates the matter. If the failure is proved to its satisfaction, the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation.", "Child care provisions", "62. The care and protection of children in Scotland was governed for most of the relevant period by the Social Work ( Scotland ) Act 1968 (the “1968 Act”).", "63. There was a duty on local authorities under section 15(1) of the 1968 Act to receive a child under 17 into care when it appeared to an authority that his parent or guardian was unable, by reasons of illness, mental disorder or other circumstance, from providing proper accommodation, maintenance and upbringing. The test was whether the intervention was necessary in the interests of the welfare of the child. Compulsory measures of care were also required under section 32 for children in need, including those who were suffering unnecessarily or were the victims of cruelty. Under section 37(1), anyone with reasonable cause to believe a child fell into this category could inform the Reporter to the Children’s Panel of the matter.", "64. The Children’s Panel was a tribunal specifically designed to cope with cases involving children. The Reporter had investigative powers to establish the condition of the welfare of the child and had three options: to take no further action, to refer the case to the Social Work Department for them to give guidance or support, or to convene a Children’s Hearing. The Children’s Panel had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment.", "65. After the entry into force of the Children Act 1975, the local authority had a duty to cause inquiries to be made, unless it did not deem them necessary.", "66. Under section 37(2) of the 1968 Act, a police constable or other person authorised by a court or justice of the peace could take a child to “a place of safety”, e.g. if offences had been committed in relation to the child, including cruelty or the infliction of unnecessary suffering.", "Remedies available to victims of abuse", "Civil actions", "67. Physical or sexual abuse of a child will generally constitute a civil wrong (such as assault), as well as a criminal offence, and give rise to an action for damages by the perpetrator.", "68. Actions in civil damages may also lie against the social work department (local authority) either in respect of alleged wrongdoing (e.g. negligence, or wilful abuse of power) for its own actions or vicariously for the actions of its staff.", "69. Under Scots law, a body carrying out statutory functions will be liable in damages to a person affected by its performance or non-performance of those functions (in the absence of a wilful disregard of its duties) only if the statute expressly or impliedly provides for such a liability, or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care, and the statutory body violated that duty (i.e. was negligent).", "70. As set out in Z. and Others v. the United Kingdom [GC], (no. 29392/95, ECHR 2001-V), negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort ( delict ) of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:", "– that damage to the claimant was foreseeable;", "– that the claimant was in an appropriate relationship of proximity to the defendant; and", "– that it is fair, just and reasonable to impose liability on the defendant.", "The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).", "71. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.", "72. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. The House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson in his leading judgment found that no duty of care arose as it was not fair, just or reasonable to impose one on the local authority in their exercise of this aspect of their duties.", "73. More recently, in the case of W. and Others v. Essex County Council ([1998] 3 AER 111) in a case concerning the claims of a family, parents and children, that they had suffered abuse and damage due to the foster placement in their home by the local authority of a 15 year old boy who was a suspected sexual abuser, the Court of Appeal held that a duty of care lay towards the children of the family, while the House of Lords on 16 March 2000 ([2000] 2 WLR 601) held that the parents could also arguably claim that they were owed a duty of care. The House of Lords had also given judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.", "Criminal Injuries Compensation", "74. The Criminal Injuries Compensation Authority (known at the relevant time as the Criminal Injuries Compensation Board – CICB) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged. Payments of some 210 million GBP are paid out each year. However, under the rules in force until 1 October 1979, there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family.", "Judicial review", "75. The acts, omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in Scotland are subject to judicial review by the Court of Session. Decisions by the local authority, for example, concerning the place of residence of children or recording the name of an abuser on a register have been quashed. Damages may be awarded in such proceedings.", "Local Government Ombudsman", "76. Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for Local Administration in Scotland whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities (Part II of the Local Government (Scotland) 1975 as amended). The Local Government Ombudsman may recommend an appropriate remedy, including the payment of compensation. Though the local authority is not legally obliged to pay the compensation recommended, it is the general practice to do so.", "77. There are restrictions on the investigations which may be conducted. Section 24(4) of the 1975 Act above requires a person to bring a complaint within 12 months from the day on which the complainant had notice of the matters concerned, though there is a discretion to consider complaints outside this time-limit if the Ombudsman considers it reasonable to do so. He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law (section 24(6)c).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "78. Article 3 of the Convention provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties’ submissions", "1. The applicants", "79. The applicants submitted that taken as a whole the evidence established that they were abused by W.H., that the abuse continued after January 1977, that there were material faults in the handling of the situation by the social services and that they sustained loss and damage as a result. They submitted that the local authority was aware of proven sexual abuse in January 1977 in relation to E. and L. and that this had been ongoing for some time before January 1977. They therefore knew of the risk of future ill-treatment to the children and ought to have been aware of the continuation of actual abuse.", "80. The local authority failed however to take the protective measures necessary and provided for in the statutory framework. Already in January 1977 there were grounds for referral of the children to the Reporter to the Children’s Panel due to the serious concerns for their welfare (the mother was unable to cope, school attendance was atrocious, E. had attempted suicide, and E. and L. had been sexually abused). A hearing would then have been held and the situation properly investigated. The failure to refer the children precluded further steps being taken to protect their welfare.", "81. There was also a failure properly to supervise W.H.’s probation. It was noted that he had been found in the home and yet no further investigation into the situation occurred. No consideration was given either to a referral to the Reporter on the basis that a convicted sexual offender had been in contact with the household. Nor did L.’s known behaviour (running away, truancy and offending) lead the social services to hold a multidisciplinary conference to investigate the cause of her behaviour while information about the background of sexual abuse by W.H. was not passed on by the social services to relevant agencies including the Children’s Panel when it dealt with L. concerning truancy in 1978 and care measures in 1979.", "82. The applicants submitted that the local authority should have been aware of the risk of continued abuse, arguing that there was recognition at the time that sexual abuse occurred in families, that W.H. was found guilty of serious sexual offences of abuse which had been going on for some time and the recorded suspicion that he continued to cohabit in the home. It should also have been apparent to the local authority that there was a possible connection between the disturbed behaviour of E. and L. and ongoing sexual abuse. No steps were taken to talk individually to the children, social work concerns seeming to concentrate on matters of rent and finance. Visits by social workers were also made at regular and pre-arranged times which allowed W.H. to evade notice most of the time.", "2. The Government", "83. The Government did not consider that it would be appropriate for the Court in assessing to what extent the applicants has suffered ill-treatment to go beyond the conclusions of the domestic courts, which had found W.H. guilty of specific offences against E., L. and T. in 1977 and 1989, as this would involve finding W.H. guilty of serious criminal offences in proceedings to which he was not a party. As the second applicant H.’s allegations referred most vividly to ill-treatment at an early age, only mentioning in sweeping terms alleged continuation of abuse after the first conviction in 1977, his statements in their view did not provide an adequate basis for making specific findings about ill-treatment after 7 January 1977. The Government also pointed to the evidential difficulties arising from the allegations which concerned events occurring more than 20 years ago and the incomplete evidence which was available. However, they accepted that the conduct for which W.H. was convicted in respect of E., L. and T. amounted to inhuman or degrading treatment.", "84. The Government understood that the applicants were alleging that from January 1977, and not before, the social services were or should have been aware that there was a risk of sexual abuse from W.H. continuing. They submitted that, following his conviction in January 1977, the Social Work Department had no evidence that W.H. was continuing to reside in the home. Although Mr R. had a suspicion that the mother was still cohabiting with W.H., he had visited the house very frequently without seeing W.H. and, in the view of the social work consultant Ms Anne Black, given the low level of awareness about child sexual abuse at the time, she would not have expected him to pursue his suspicions further. None of the applicants, when seen by the social workers or interviewed for various purposes, gave any hint that W.H. was still living in their home or continuing to abuse them. Though the social worker Mr M. recalled that he found W.H. leaving the home on two to three occasions, the notes indicated that the mother and W.H. both denied that he was living there, and he took the view that W.H.’s visits during the day while the children were at school was not tantamount to living there and did not constitute sufficient evidence of a breach of his probation to justify further action.", "85. There were no other features which would have led the social workers to suspect that the applicants were still suffering abuse. They were concerned in the problems of school attendance and the difficulties arising from the mother’s illness and lack of money, and it was not unreasonable for the social workers to believe that the children’s problems at the time were associated with general problems arising from their environment. They submitted therefore that the social services did not have knowledge of any continuing abuse and, having regard to practice and understanding at the time, they could not legitimately be criticised for failing to appreciate that W.H. was continuing to abuse the applicants.", "86. The Government agreed with the applicants that the social services’ actions were nonetheless inadequate in certain respects, particularly with regard to the support offered to the applicants after W.H.’s conviction in 1977. The most serious omission was the failure to make a reference to the Reporter of the Children’s Hearing after that conviction. This would have been likely to have led to a supervision order in respect of L., leading to closer contact with her and the family. Further, there should have been greater vigilance in supervising W.H. with less reliance on the assurances of W.H. and the mother that he was not living in the home, and the background report on E. prepared for court in June 1977, and the social enquiry report on L. prepared in January 1978 and in April 1979 should have referred to the previous circumstances surrounding the disclosure of abuse and the conviction of W.H.; there should have been social work input at the case conference meeting held in relation to L. in March 1979; and the visit by the police to L. in April 1979 should have led to discussion about the situation at home.", "87. However, notwithstanding these failings, it could not be said that any different conduct on the part of the authorities would have necessarily led to discovery of any further incidents of abuse by W.H. There had been ongoing contact between the applicants and the social services over this period without any disclosures being made. Similarly, even if the possibility of a breach of probation proceedings had been more seriously considered, the social services still had had no concrete evidence that he was living in the home. In the circumstances, it could not be said that there was a violation of Article 3 in respect of the applicants.", "B. The Court’s assessment", "1. General principles", "88. Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge ( mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 116). Thus a failure, over four and a half years, to protect children from serious neglect and abuse of which the local authority were aware disclosed a breach of Article 3 of the Convention in the case of Z. and Others v. the United Kingdom ([GC] no. 29392/95, ECHR 2001-V, §§ 74-75).", "2. Application in the present case", "89. The Court recalls that the four applicants allege that they suffered sexual and physical abuse from W.H. over a long period of time. There is no doubt that the treatment described (see paragraph 43) falls within the scope of Article 3 of the Convention as inhuman and degrading treatment. Certain of the assaults on E., L. and T. were subject to criminal proceedings and W.H. was convicted in January 1977 and July 1989 in respect of seven offences.", "90. The Government have argued that no findings of ill-treatment should be made beyond those of the criminal courts as this would be tantamount to finding W.H. guilty of further criminal offences in proceedings to which he is not a party. The Court notes that the Government do not contest the applicants’ allegations or argue that they are false or erroneous or unsubstantiated. The Criminal Injuries Compensation Board indeed made substantial awards to E., L. and T., which would imply that the allegations of long standing abuse were upheld. It is true that no award was made to the second applicant, H., and that no charges concerning him were ever brought against W.H.. It does not appear that H. made any disclosure about physical abuse until relatively late, in the context of the civil proceedings brought in 1992. However, the statements of the other applicants, his sisters, support his claims concerning the violence and physical battering that occurred in the home and the psychological reports submitted are consistent with a history of abuse.", "91. The Court is satisfied that it may make a finding on the materials before it, which are uncontroverted, that the applicants suffered abuse as described. It does not consider that this may be construed as any determination of guilt of criminal offences on the part of W.H., any more than the accepted findings of ill-treatment of the child applicants in the case of Z. and Others v. the United Kingdom (cited above) disclosed any attribution of criminal responsibility on the part of the children’s parents. Criminal law liability is distinct from international law responsibility under the Convention, this Court not being concerned with reaching any findings as to guilt or innocence under domestic law (see, for example, Avşar v. Turkey, no. 25657/94, ECHR 2001, § 284).", "92. The question therefore arises whether the local authority (acting through its Social Work Department) was, or ought to have been, aware that the applicants were suffering or at risk of abuse and, if so, whether they took the steps reasonably available to them to protect them from that abuse.", "93. The parties appear agreed that it is the period after January 1977 which is in issue, no disclosures or evidence of sexual or physical abuse arising before E.’s overdose and L’. running away from home in November 1976 and January 1977 respectively. Though in certain statements E. has a recollection of making a complaint about W.H. in or about 1974, her memory is uncertain on the details and the applicants do not rely on this as proving knowledge of the abuse before 1977. The parties do disagree whether the authorities should have been aware of the abuse that continued thereafter.", "94. The Court recalls that until T. made disclosures of sexual abuse to her social worker in 1988 there is no indication that any of the children in the house made any complaint about W.H.’s ongoing assaults after January 1977. The Government take the view that there was nothing to alert the social workers that he continued to be a risk and that in the light of knowledge and practice at the time the fact that he had been found in the family home after the conviction in January 1977 would not have been regarded as any significant cause for alarm or have provided sufficient ground for action against him.", "95. However, the Court notes that the Government accept that even if it was not a formal condition of his probation it would have been understood that W.H. was no longer permitted to reside in the applicant’s home. An examination of the materials reveals the following factors:", "– W.H. had been charged with a series of serious sexual offences against two children of the family indicating a background of repetitive offending;", "– the disclosures made by E. in hospital indicated that there was also an element of physical abuse present in the home;", "– E. and L. both showed serious levels of distress and disturbance arising out of the situation of known abuse in the home, which had contributed to E. taking an overdose of pills and L. running away;", "– the social enquiry report dated 28 January 1977 produced by the social worker Mr R. noted that W.H. did not appear to accept the serious nature of the charges and that the mother also did not accept the charges against him and talked of marriage;", "– that report concluded that it would be necessary for firm control to be exercised over the accused for a period of time;", "– the notes of Mr R. gave the opinion in March 1977 that the mother was still cohabiting;", "– the affidavits of the social worker Mr M. indicate that he regarded W.H. as dishonest and likely not to tell the truth when it suited him;", "– Mr M. in the same affidavits recalled meeting W.H. leaving the home two or three times when he called unexpectedly;", "– a social enquiry report dated 1 June 1977 drawn up in respect of E.’s appearance for criminal damage noted that she had left home after a scene with the man cohabiting with her mother, at a date unspecified but which would appear to be about March 1977 (see paragraph 22);", "96. The Court is satisfied that from these elements that the social services should have been aware that the situation in the family disclosed a history of past sexual and physical abuse from W.H. and that, notwithstanding the probation order, he was continuing to have close contact with the family, including the children. Even if the social services were not aware he was inflicting abuse at this time, they should have been aware that the children remained at potential risk. The fact that at the relevant time there was not the knowledge of the prevalence of, and persistence of, sexual offenders victimising children within a family that there exists now, is not significant in this case where, as the applicants emphasise, the social services knew that there had been incidences of sexual abuse resulting in criminal offences and were under an obligation to monitor the offender’s conduct in the aftermath of the conviction.", "97. Yet the social services failed to take steps which would have enabled them to discover the exact extent of the problem and, potentially, to prevent further abuse taking place. The Government have accepted that after the initial disclosures the social services should have worked with both E. and L. who had shown significant distress at the situation at home which could have led to further understanding of family dynamics; and, most importantly, that the social services should have referred L. to the Reporter of the Children’s Hearing, which could have led to a supervision requirement over one or more of the children who had been living with a known and convicted offender.", "98. In addition, the Government have accepted that more should have been done to investigate the possible breach by W.H. of the probation order, that there was a consistent failure to place the full and relevant details of the family situation before the Sheriff’s Court or Children’s Hearing when the applicant children were the subject of a specific examination in the context of offending and truancy (see paragraphs 22, 26 and 31), and that there was no effective co-operation or exchange of information between the school authorities which were attempting to deal with a persistent truancy problem and the social services who had access to the information about the wider family situation and history. It is also not apparent that E.’s disclosures at the hospital in December 1976 were passed to the social services or that, if they were, they led to any response.", "99. The Court recalls that the Government argued that notwithstanding any acknowledged shortcomings it has not been shown that matters would have turned out any differently, in other words, that fuller co-operation and communication between the authorities under the duty to protect the applicants and closer monitoring and supervision of the family would not necessarily have either uncovered the abuse or prevented it. The test under Article 3 however does not require it to be shown that “but for” the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State.", "100. The Court is satisfied that the pattern of lack of investigation, communication and co-operation by the relevant authorities disclosed in this case must be regarded as having had a significant influence on the course of events and that proper and effective management of their responsibilities might, judged reasonably, have been expected to avoid, or at least, minimise the risk or the damage suffered.", "101. There has, accordingly, been a breach of Article 3 in respect of the applicants in this case.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "102. Article 8 of the Convention provides as relevant:", "“1. Everyone has the right to respect for his private and family life, ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "103. The applicants referred to the ill-treatment and assaults to which they were victim and claimed that the authorities had failed in their positive obligation to protect them from damage to their private life.", "104. The Government submitted that the deterrent sanctions against sexual and physical abuse and the statutory system of child protection fulfilled any positive obligation imposed by this provision to protect the applicants from abuse by W.H.", "105. Referring to its finding of a violation of Article 3 above, the Court finds that no separate issue arises under this Convention provision.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "106. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties’ submissions", "1. The applicants", "107. The applicants submitted that Article 13 required that they have available to them a means for establishing the liability of State officials for acts or omissions involving a breach of their rights and the possibility of obtaining compensation for the wrong suffered. Advisory remedies such as complaints to the ombudsman were not effective, while the CICB could not attribute blame to the local authority or hold them to account. The compensation paid by the CICB to three applicants related to a separate wrong and not to the substance of their complaint before the Court. It also did not cover pecuniary damage for loss of earnings. The applicants were precluded from suing the local authority for damages in negligence due to the effect of the X. and Others v. Bedfordshire County Council case (cited above).", "2. The Government", "108. The Government submitted that the applicants did have at their disposal an effective remedy in respect of any alleged failure of the local authority to protect them from abuse. In their view, there was a margin of appreciation available to Contracting States as to how to satisfy the two main elements - a mechanism for establishing liability and the availability of compensation at least for the non-pecuniary damage suffered thereby. Where the damage was caused directly by a perpetrator of abuse and the liability of the local authority was subsidiary or derivative, the requirement for compensation could be met through remedies against the abuser himself or by the State providing awards under a compensation scheme such as the CICB. The applicants could also have obtained a determination of liability through judicial review proceedings, civil proceedings against the local authority (which they chose to withdraw) and the local authority ombudsman. It was not apparent that the applicants’ civil claims would have been rejected for lack of a cause of action as they arguably raised operational matters not affected by the ruling in the X. and Others case, though in the Government’s view it would have failed on the merits. In any event, such proceedings would have provided a procedure by which the applicants’ claims could have been tested in a judicial procedure. As the applicants E., L. and T. had in this case received GBP 25,000, they had already received an effective compensatory remedy.", "B. The Court’s assessment", "109. As the Court has stated on many occasions, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106).", "110. Where alleged failure by the authorities to protect persons from the acts of others is concerned, Article 13 may not always require that the authorities undertake the responsibility for investigating the allegations. There should however be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention. Furthermore, in the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see Z. and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V, § 109; Keenan v. the United Kingdom, no. 27229/95, (Sect. 3), ECHR 2001-III, § 129).", "111. In the present case, the Court has found that the Government failed in their obligations under Article 3 of the Convention to take reasonable steps to protect the applicants from inhuman and degrading treatment. The applicants’ complaints in this regard are therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52; the Kaya judgment, cited above, § 107, and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113).", "112. Though awards were made to three applicants by the CICB and the applicants accept that this may be relevant to any subsequent question of just satisfaction, the Board cannot be regarded as providing a mechanism for determining the liability of the social services for any negligence towards the children. In any event, while it provided some compensation to E., L. and T., no award at all was made to H. and the awards that were made did not take into consideration any pecuniary loss flowing from the abuse suffered. Similarly, while a complaint to the local authority ombudsman, at the appropriate time, might have led to an investigation of certain aspects of social services management of the case, it would not have provided a binding determination, the ombudsman only having the power to make recommendations. Furthermore, it would appear that, time considerations aside, the ombudsman in response to the applicants’ complaints gave his view that he did not have jurisdiction since it appeared that they had the possibility of taking action in the courts.", "113. The Court recalls that, in general, actions in the domestic courts for damages may provide an effective remedy in cases of alleged unlawfulness or negligence by public authorities (see, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, (Sect. 3), judgment of 4 May 2001, §§ 162-163, extracts published in an annex to McKerr v. the United Kingdom, ECHR 2001-III). In the present case, the applicants did lodge a civil action in negligence in the Scottish courts but withdrew their claims on 4 January 1996 pursuant to counsel’s advice that they were doomed to failure in the light of the X. and Others case decided by the House of Lords on 29 June 1995. This decision, which was the subject of consideration by the Grand Chamber in the above-mentioned Z. and Others v. the United Kingdom case, had held that no duty of care existed in respect of the child applicants’ claims that the local authority in that case had been negligent in failing to remove them from their home where they were victims of abuse and neglect.", "114. The Government submitted that it was not correct to assert that this House of Lords decision prevented all claims in negligence against local authorities in the exercise of their child protection duties, and argued that it could not be regarded as beyond doubt that these applicants would have failed as, in the case of these applicants, the social services arguably were negligent in the way they approached operational, as well, as policy matters.", "115. It is true that since the case of X. and Others v. Bedfordshire County Council there have been further cases in the English courts which indicate that a duty of care may arise where, for example, the social services have failed to prevent foreseeable damage to children either already in their care or affected in other ways by their exercise of their duties (see paragraph 73). However, these developments took place some years after the X. and Others case, which at the time gave the impression that the highest judicial authority had ruled out the possibility of suing local authorities in the exercise of their child protection functions on grounds of public policy. If taking action at the present time, the applicants might, at least on arguable grounds, have a claim to a duty of care under domestic law, reinforced by the ability under the Human Rights Act to rely directly on the provisions of the Convention. The Court is not satisfied that this was the case at the relevant time in 1996. While the Government have also made reference to the possibility of judicial review proceedings, these would only have been available to challenge the social services’ actions at the time that they occurred. The applicant children were not in a position where they could make use of such redress.", "116. The Court accordingly finds that the applicants did not have at their disposal the means of obtaining a determination of their allegations that the local authority failed to protect them from inhuman and degrading treatment. There has been in that respect a violation of Article 13 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "117. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. The parties’ submissions", "118. The applicants submitted that they were entitled to awards for pecuniary and non-pecuniary damage. While they accepted that the CICB awards could be taken into account in assessing loss, these did not provide full compensation for the severe abuse which took place over many years. They claimed in respect of the failure to protect them from abuse and for anxiety and frustration an additional GBP 20,000 for E., GBP 37,000 for L. and GBP 5,000 for T., while H. who had not previously obtained any compensation claimed GBP 20,000. The applicants claimed for pecuniary damage sums for loss of earnings because of the effect that the abuse had had on their wage earning potential due to their resulting educational and psychological difficulties – GBP 25,927.55 for E., who has only been able to obtain occasional poorly paid seasonal work, GBP 20,000 for H., who has only been able to obtain poorly paid and physically demanding work, GBP 78,548.15 for L. who has only been able to work on a part time basis and GBP 68,760.64 for T., who has been unable to work for long periods. The calculations submitted by the applicants were stated as taking into account, inter alia, the length of time over which the local authority were at fault and the earnings in fact obtained by the applicants.", "119. The Government submitted that any finding of a violation would in itself constitute just satisfaction. They did not consider that any clear causal connection could be shown in respect of any alleged pecuniary damage and submitted that the applicants’ calculations were artificial and hypothetical. As regards any non-pecuniary damage it would be necessary to identify precisely the damage suffered by the applicants which would not have occurred but for the alleged violation, which was in the circumstances of this case difficult bearing in mind the background of abuse and deprivation already suffered by the applicants prior to January 1977. Furthermore, the compensation paid by the CICB should be deducted from any award.", "2. The Court’s assessment", "120. As regards the applicants’ claims for pecuniary loss, the Court’s case-law establishes that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain, judgment of 13 June 1994 (Article 50), Series A no. 285 ‑ C, pp. 57-58, §§ 16-20; Cakıcı v. Turkey, judgment of 8 July 1999, Reports 1999-IV, § 127).", "121. A precise calculation of the sums necessary to make complete reparation (restitutio in integrum ) in respect of the pecuniary losses suffered by applicants may be prevented by the inherently uncertain character of the damage flowing from the violation (Young, James and Webster v. the United Kingdom (former Article 50), judgment of 18 October 1982, Series A no. 55, p. 7, § 11). An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved the more uncertain the link becomes between the breach and the damage. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary loss, which it is necessary to award to each applicant, the matter to be determined by the Court at its discretion, having regard to what is equitable (Sunday Times v. the United Kingdom (former Article 50) judgment of 6 November 1989, Series A no. 38, p. 9, § 15; Lustig-Prean and Beckett v. the United Kingdom (Article 41), judgment of 25 July 2000, §§ 22-23).", "122. In the present case, the applicants have submitted reports and assessments arguing that their wage-earning capacity, even for those of them who are currently in employment, has been seriously damaged by the past abuse which they suffered. The Court observes however that its finding of a violation relates to the period after January 1977, when the local authority should have been aware that they were at risk of abuse. The applicants had already suffered long periods of violence and assault - E. and H. from 1967, L. from about 1969 and T. from 1971. As E. left home in or about March 1977, H. in or about 1978, L. in 1979 and T. in 1984. The period of abuse suffered by the oldest three applicants therefore after January 1977 was relatively short compared with the prior period.", "123. While the reports submitted by the applicants attempt to attribute pecuniary loss to the local authority by taking into account this time element, the Court considers that the psychological injury and the ongoing impact on their ability to lead normal lives would almost certainly have existed even if no abuse had occurred after 1977. It appears to this Court impossible to assess what additional damage was caused after that date. The Court also considers that it must have regard to the fact that, though the local authority did fail to take reasonable steps to avoid the risk, this is not a case where those failings can be regarded as being causally connected with the totality of any damage suffered during that period. If the local authority had acted with more care in monitoring and supervising the family, though this would have increased the likelihood of uncovering the ongoing abuse, it can only be speculative as to at what stage this would have occurred and how effective the measures taken would have been.", "124. In the light of these uncertainties and the difficulties of attributing any specific degree of damage to the failings of the local authority, the Court has decided to award a global figure, for pecuniary and non-pecuniary damage together, taking into account as conceded by the applicants the awards made in respect of the non-pecuniary damage by the CICB.", "On an equitable basis therefore, it awards the sum of 16,000 euros (EUR) each to E., H. and L. and the sum of EUR 32,000 to T.", "B. Costs and expenses", "125. The applicants claimed a total of GBP 52,146.65 (inclusive of VAT), including GBP 29,554.74 for solicitors’ fees, covering their work on behalf of the applicants from 1994 (applications to the CICB, the Legal Aid Board, local authority ombudsman and the European Commission and Court of Human Rights), GBP 21,150 for counsels’ fees, GBP 4,022.91 fees to the social work consultant for his reports and GBP 1,350 for medical reports on the applicants.", "126. The Government submitted that the sums claimed were excessive and that if an award was made it should not be more than GBP 20,000.", "127. Having regard to the complexity of the case and the amounts awarded in other cases, and making an assessment on an equitable basis, the Court awards EUR 64,000, inclusive of VAT.", "C. Default interest", "128. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1929 and lives in Ylöjärvi.", "6. On 20 July 2000 she took her daughter's son to a doctor. The boy was three years old at the time.", "7. According to the doctor's report, the applicant said that she had noticed a bruise on the boy's back which might have been caused by a blow, and that his behaviour had been abnormal since he had visited his father, T. The applicant had strong suspicions that the injuries were consistent with physical violence. Furthermore, it was written in the report that the applicant had informed the doctor that the boy had said that the bruise had been caused by a punch. The applicant further stated that in January 2000 she had noticed signs of violence for the first time, but that T. had explained that the boy had fallen down the stairs. The doctor wrote in his report that the bruise noted on the boy's back was consistent with a punch, thereby supporting the boy's account, given also to the doctor, that he had been hit by his father.", "8. Later the same day, the doctor reported the alleged violence to the child welfare authorities, although the applicant had objected to a report being made.", "9. On 17 August 2000 T. requested the police to investigate whether the applicant had committed an offence by alleging that he had hit his son. He maintained that he had never struck the boy. On 22 August 2000 he further requested the police to investigate whether the applicant had committed an offence, such as deprivation of liberty, by taking the boy to a doctor.", "10. On 26 April 2001 the public prosecutor preferred charges against the applicant for defamation without better knowledge ( ei vastoin parempaa tietoa tehty herjaus, smädelse dock icke emot bättre vetande ). According to the charge, the applicant had given information to the doctor implying that T. had struck his son. The doctor had been given to understand that T. had struck the boy on several occasions, most recently during the previous weekend. The applicant did not have reasonable grounds to support her allegation. On 21 May 2001 T. joined the proceedings and claimed compensation from the applicant for non-pecuniary damage amounting to 10,000 Finnish marks (FIM, about 1,682 euros (EUR)) and reimbursement of his legal expenses.", "11. On 24 August 2001 the Tampere District Court ( käräjäoikeus, tingsrätten ) held an oral hearing. In its judgment the court held that it remained unclear whether the applicant had implied that the boy had been hit by his father or whether the doctor's report merely recorded his own impression based on his discussion with the applicant and the child. Applying the principle in dubio pro reo, the court rejected the charge. The presiding judge, however, dissented, finding the applicant guilty of defamation without better knowledge. She noted that, taking the facts as presented, there were no reasonable grounds to support the belief that T. had struck the boy. She further found that the boy's own statement could not as such be considered a reasonable ground, especially given the fact that it was not known whether the applicant had discussed the bruise with him before visiting the doctor.", "12. T. appealed to the Turku Court of Appeal ( hovioikeus, hovrätten ). On 20 February 2002, after an oral hearing, the Court of Appeal overturned the District Court's judgment and convicted the applicant of defamation committed without better knowledge. No fines or other penalties were imposed, but the applicant was ordered to pay compensation for non-pecuniary damage amounting to EUR 504.56 and legal costs of EUR 2,861.11. It reasoned:", "“At the hearing [the applicant] and [the doctor] have essentially given the same account of the events as before the District Court. [The applicant] has, however, stated that having noticed the bruise on the child's back on the evening before the visit to the doctor's, she asked the boy where it had come from and he said that his father had hit him.", "According to the doctor, the applicant had provided the preliminary data, which he had first written down on paper. Later they had been recorded in the medical report based on his dictation. He had dictated the information immediately after the applicant and the child had left the room. The report did not contain any conclusions reached by the doctor himself.", "On the basis of the doctor's testimony and the case record, it has been proved that the applicant intentionally, albeit without better knowledge, said that [the father] was guilty of having struck his three-year-old son in such a way that she in fact gave the doctor to understand that the father had struck his son during the weekend preceding 20 July 2000. However, the Court of Appeal finds that it has not been shown that the applicant gave the doctor to understand that the father had struck his son at other times.", "As described above, the applicant had discussed the bruise with the boy. The boy may also have heard the applicant make her preliminary statement at the doctor's before the doctor spoke to him. Having regard to this and the boy's age, the mere fact that he told the doctor that his father had hit him cannot be considered to be significant enough to constitute reasonable grounds for the allegation. Nor has the applicant presented any other such reasons for the allegation on the basis of which she could be considered to have had reasonable cause to believe her insinuation to be true.", "On the above grounds, the Court of Appeal considers that the applicant is guilty of defamation without better knowledge.", "According to the doctor, the applicant had been worried about the child's condition and he considered that the visit had been justified. Having regard to the circumstances, it was forgivable that the applicant, in whose care the child had been, had not thoroughly weighed what she had told the doctor. For these reasons the Court of Appeal does not impose a sentence, in accordance with Chapter 3, Article 5, subsection 3 (2) [of the Penal Code]. ”", "13. The applicant sought leave to appeal from the Supreme Court ( korkein oikeus, högsta domstolen ). She argued that the right to freedom of expression was violated if a person could not rely on the account of a child who had visible signs of injury or discuss his or her own impressions of the facts with a doctor, who was bound by professional secrecy, without being afraid of later being found guilty of defamation.", "14. On 17 December 2002 the Supreme Court refused leave to appeal.", "III. INTERNATIONAL MATERIALS", "23. According to Article 19 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991) – ratified by all members of the Council of Europe – provides:", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "24. In its concluding observations (CRC/C/15/Add. 272) of 20 October 2005 on the third periodic report of Finland (CRC/C/129/Add.5) the United Nations Committee on the Rights of the Child shared the concern of the Parliamentary Ombudsman of Finland that violence against children and sexual abuse within families were among the most serious obstacles to the full implementation of children's rights in Finland. In the light of Article 19 of the Convention, the Committee recommended that Finland, inter alia, strengthen awareness-raising and education campaigns with the involvement of children in order to prevent and combat all forms of child abuse and also strengthen measures to encourage reporting of instances of child abuse, including for children in alternative care, and to prosecute the perpetrators of these acts." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "15. Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act ( Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), provided:", "“Everyone has freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.”", "The same provision appears in Article 12 of the current Constitution of 2000 ( Suomen perustuslaki, Finlands grundlag; Act no. 731/1999).", "16. Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone's right to private life is guaranteed.", "17. Chapter 27, article 2(1), of the Penal Code ( rikoslaki, strafflagen; Act no. 908/1974, as in force until 1 October 2000 ), provided that a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation and sentenced to a fine or imprisonment for a maximum term of six months, unless he or she could show reasonable grounds for the allegation.", "For the conduct to be intentional, the offender had to be aware of the fact that the defamatory allegations might subject the person concerned to contempt, or harm his or her profession or career. In cases where the offender did not understand the defamatory nature of the conduct, it has not been considered intentional, but the fact that the offender has been mistaken about the truth of the defamatory allegation has not altered the intentional nature of his or her conduct. Only in cases where the offender has been able adequately to prove the truth of his or her allegations has it been possible to free him or her from liability.", "In one of its precedents ( KKO 2006:10 ), the Supreme Court held that a person had committed defamation when she had failed to verify the truthfulness of the information she had provided when requesting a criminal investigation by the police and reporting to the social welfare authorities under the Child Welfare Act her suspicion that another person had committed sexual and other offences.", "18. Under the terms of Chapter 5, section 6, of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974), damages may be awarded for the distress arising from an offence against someone's liberty, honour or domestic peace or from another comparable offence.", "19. Section 40 of the Child Welfare Act ( lastensuojelulaki; barnskyddslagen, Act no. 683/1983), in force until 1 January 2008, provided that if, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or the church learned about a child in apparent need of family-oriented or individual child welfare measures, he or she had to notify the social welfare board without delay. The provision has been interpreted to mean that any confidentiality obligation is superseded by the duty to notify.", "The wording “apparent need of child welfare measures ” referred to section 12, which set a clearly lower threshold for child welfare measures than the threshold set in section 16 for taking a child into public care. Even a less than serious risk to the child' s health or development warrants notification to the social welfare board. The word “apparent” is used in order to encourage notifications also in cases where there exists no full evidence of or certainty about the existence of such a risk. When a child welfare official receives notification, he or she must verify the facts and assess whether support measures are needed. The wording has left room for interpretation of how certain the notifier must be of the child' s need for child welfare measures. In particular, there has been uncertainty about whether the mere suspicion of such a need suffices for notifying the authorities.", "20. According to the Government Bill (HE 252/2006 vp) for the enactment of the new Child Welfare Act (Act no. 417/2007, which entered into force on 1 January 2008), in order to guarantee children 's safety the threshold for making a child welfare notification under Section 25 should not be excessively high. If a person considering making such a notification has difficulties in assessing whether his or her concern about the child is sufficient to justify notifying the authorities, he or she may, if necessary, consult the social welfare authorities, for instance, without communicating the child's name to them. The provision expressly provides that any confidentiality obligation is superseded by the duty to notify. Section 25(6) provides that the child welfare authorities must report to the police any case where there is good reason to suspect that a sex offence, homicide or bodily injury has been committed on a child in the environment in which he or she was growing up and the suspected offence carries a maximum penalty of at least two years'imprisonment.", "21. As a rule, the child concerned is entitled to be informed of the notifier's identity. In practice, however, cases exist where disclosure of the identity of a private person making such a notification would be particularly harmful to the child's best interests or the notifier' s safety, for example. Authorities need not provide a party with information on identity if the conditions mentioned in section 11 of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta; lagen om offentlighet i myndigheternas verksamhet; Act no. 621/1999) are fulfilled : a party shall not have the right of access to a document if such access would be contrary to a very important public interest, the interest of a minor or some other very important private interest. According to the Government Bill (HE 30/1998 vp ), the best interests of a child may justify protecting the notifier' s identity on the basis of an overall consideration of the circumstances of each individual case. As an example, the Government Bill mentions the situation where the notifier is a person close to the child, for instance a grandparent, and to disclose his or her identity would break the child' s relationship with an adult important to his or her welfare. Disclosure of the notifier' s identity may, in individual cases, also be in conflict with the public interest if providing the information might defeat the purpose of child welfare measures.", "22. In September 2005 the Ombudsman for Children ( lapsivaltuutettu, barnombudsmannen ) took up her duties. The Ombudsman is entrusted with the task of promoting the best interests and rights of the child in general administration, social policy and legislation. The Ombudsman may issue recommendations, guidelines and advice but she cannot receive individual complaints. The Ombudsman is an independent authority who works in liaison with the Ministry of Social Affairs and Health ( sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet ). The Parliamentary Ombudsman ( eduskunnan oikeusasiamies, riksdagens justitieombudsman ) retains her mandate regarding children and continues to act on individual complaints addressed to her.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "25. The applicant complained that she had been found guilty of defamation even though she had merely honestly voiced her impression of the causes of her grandchild's bruises to the doctor, who was bound by professional secrecy. She argued that the Court of Appeal's judgment had a negative impact on the rights of those in need of the services of a doctor in sensitive cases, such as victims of domestic violence, since they might refrain from seeking medical help for fear of being prosecuted.", "26. Article 10 reads:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "27. The Government contested that argument.", "A. Admissibility", "28. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties' submissions", "29. The applicant argued that freedom of expression was at its widest in a doctor-patient relationship. Referring to the principles laid down in the case of Nikula v. Finland ( no. 31611/96, § 44, ECHR 2002 ‑ II) the applicant submitted that, just like defence counsel's freedom of expression, freedom of expression in a doctor-patient relationship required particular protection. When a parent or relative finds that a small child has bruises, should he or she be afraid to repeat to the doctor what the child has told him or her? If there exists doubt as to the origin of a bruise, should it be punishable to engage in a discussion with the doctor about the various possibilities? A doctor must be able to rely on the truthfulness of a patient's statement and it was equally clear that false statements regarding, inter alia, sexual abuse, were punished. A medical doctor was, however, an expert in matters relating to physical abuse. If the patient raised a concern regarding his or her son 's or grandson 's injuries, the doctor could directly judge whether or not the concerns were substantiated.", "30. The applicant had seen a bruise on the boy after he had visited his father. The boy had told her how the bruise had come about. The applicant had never accused T. of hitting his son, but expressed concern to the doctor as regards the boy's injuries. The doctor had found the bruise to be consistent with possible violence by T. against his son. It was clear that one could not report such violence to the police unless there was evidence supporting the allegation. The required level of certainty could not, however, be the same for reporting an incident to the police as for consulting a doctor to ask his opinion.", "31. The applicant argued that, as regards the requirement of “prescribed by law”, the relevant repealed provision of the Penal Code was problematic. It was possible for a person to be sentenced for defamation even if the act was unintentional, if he was not able to satisfy the shifted burden of proof, that is, to prove himself innocent. Furthermore, could a reasonable person be expected to understand that this provision would be applied when expressing concern to the family doctor about the origin of bruises on her grandson? In order for an offence to be punishable, the law had to be particularly precise. The Supreme Court had delivered 35 published judgments on defamation or slander. There was no established doctrine, correcting the imprecision in law, on the basis of which the applicant could or should have foreseen that she might be prosecuted.", "32. The Government conceded that the liability to pay damages and the conviction, although the sentence had been waived, amounted to an interference with the applicant's right to freedom of expression. It had a basis in section 10(1) of the then Constitution Act, Chapter 27, Articles 1 and 2, of the Penal Code and Chapter 5, section 6, of the Tort Liability Act. Their interpretation in the present case had in no way been arbitrary. The interference aimed to protect the rights of the boy's father. Taking into account the margin of appreciation left to the Contracting States, the national authorities were, in the circumstances of the case, entitled to interfere with the exercise of the applicant' s right to freedom of expression ( compare Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001 ‑ I ), and this interference was necessary in a democratic society. The impugned measures, the waived sentence and the modest non-pecuniary damages and costs were “ proportionate to the legitimate aim pursued ” and the reasons adduced by the courts to justify them were “relevant and sufficient” within the meaning of Article 10 § 2.", "33. The Government submitted that the Court of Appeal had found it proved that the applicant had alleged that T. had struck his son, by giving the doctor to understand that the boy had been struck. The applicant had not produced such grounds for the suspicion as to justify her allegations or prove that the insinuations were true. The fact that the boy had told her that his father had punched him could not be accorded significance as reasonable grounds for the suspicion, considering his young age and the fact that she had discussed the matter with him the previous evening, and also that he might have heard the preliminary information provided by her prior to the discussion between him and the doctor.", "34. The case mainly involved assessment of evidence. The Court of Appeal had first assessed whether the applicant had intentionally expressed a suspicion that T. had struck the boy, finding in the affirmative. Secondly, it had assessed whether the applicant had had sufficient grounds to express her suspicion that T. had struck the boy. The court had answered this question in the negative, finding that the applicant had not produced the reasonable grounds required by the Penal Code in support of her suspicion. It had accordingly convicted her of defamation.", "35. In the light of the evidence provided, the Court of Appeal had not and could not have taken a stand on whether the applicant's report to the doctor concerning suspected violence had been her own idea or whether it was what the boy had told her. The court had assessed the case as a whole, taken account of the applicant' s particular status as the boy's grandmother, and considered her action excusable, waiving punishment and only ordering her to compensate for the distress caused to T.", "36. Assessing the type of the boy's injury and determining the need for medical care or protecting the doctor-patient relationship did not require the name of the person who might have caused the bruise to be mentioned. Medical confidentiality was without significance, because merely voicing an unfounded suspicion could fulfil the essential elements of an offence.", "37. As regards the reference to the case of Nikula v. Finland (cited above) the Government submitted that it was not comparable to the case under consideration because it concerned defence counsel' s freedom of expression, which required particular protection, whereas the present case concerned a private individual' s freedom of expression when consulting a doctor.", "38. As for the applicant' s view that the old defamation provision was not sufficiently precise to permit her to foresee how it would be applied in her case, the Government noted that it laid down expressly that reasonable grounds must be produced in support of the allegation and its application was therefore foreseeable. Its application had become established case-law over a long period of time, on the basis of which it was clear that expressing unfounded suspicions that someone had committed a crime would be considered as defamation.", "2. The Court's assessment", "39. In exercising its supervisory function, the Court must look at the impugned interference in the light of the case as a whole including, in this case, the content of the remark held against the applicant and the context in which it was made.", "40. It was common ground between the parties that the applicant's conviction constituted an interference with her right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Furthermore, the parties agreed that the interference pursued a legitimate aim, namely the protection of the reputation or rights of others, within the meaning of Article 10 § 2. The Court endorses this assessment. The applicant and the Government differed on whether the interference was “ prescribed by law ” and “necessary in a democratic society.” As to the former issue, the Court accepts that the applicant's criminal conviction was based on a reasonable interpretation of the Penal Code as in force at the relevant time, and that the order requiring her to pay damages was based on the relevant provision of the Tort Liability Act. The interference was thus “prescribed by law” (see Nikula v. Finland, cited above, § 34; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 ‑ X). It remains to be determined whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Nikula v. Finland, § 44).", "41. This case calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their right to respect for their private and family life or the risk of unjustified arrest and prosecution. The first of these interests involves protection of children as the victims of crime. The Court has emphasised that children and other vulnerable individuals in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 21–27, Series A no. 91; Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62–64, Reports 1996-IV; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37 ). The Court would refer, in particular, to the case of A. v. the United Kingdom ( 23 September 1998, § 22, Reports 1998 ‑ VI) where a stepfather had subjected a child to treatment contrary to Article 3 and was acquitted having argued that the treatment amounted to “reasonable chastisement”. The Court held in that case that the obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, required States to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals.", "42. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. Child abuse is indeed a hard form of criminal conduct to combat, because its existence is difficult to uncover. Babies and young children are unable to tell, older children are often too frightened. The question raised by this application is how to strike a proper balance when a parent is wrongly suspected of having abused his or her child, while protecting children at risk of significant harm. In considering these questions, the starting point is to note that the applicant acted properly in considering whether the bruise on the boy's back had been deliberately inflicted. Having become suspicious, she consulted a medical doctor who rightly decided to communicate to the child welfare authorities the suspicion which he personally formed having examined and interviewed the boy. That is the essential next step in child protection. The seriousness of child abuse as a social problem requires that persons who act in good faith (see, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008 ‑ ...), in what they believe are the best interests of the child, should not be influenced by fear of being prosecuted or sued when deciding whether and when their doubts should be communicated to health care professionals or social services. There is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. The duty to the child in making these decisions should not be clouded by a risk of exposure to claims by a distressed parent if the suspicion of abuse proves unfounded.", "43. It is true that the applicant was convicted merely of defamation committed “without better knowledge”, to be distinguished from defamation “despite better knowledge”, that is to say, intentionally imputing an offence to T. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had). Nonetheless, the threat of an ex post facto review in criminal proceedings of a concerned grandmother's statement made in good faith to the child's doctor accords ill with every adult's moral duty to defend a child's interests. The Court finds it alarming that the Court of Appeal took the view that the applicant, when there was no doubt that she had seen the boy's bruised back, was not entitled to repeat what the boy had told her, that is, that he had been hit by his father, an assertion he had repeated when interviewed by the doctor. The possibility to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure should be available to any individual without the potential “chilling effect” of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred.", "44. The Court is aware that the spectre of vexatious litigation is often used as a reason for requiring that extra care be shown when making a report on alleged child abuse to the authorities. It was not argued before the domestic courts or before this Court that the applicant acted recklessly, that is without caring whether the boy's allegation of abuse was well-founded or not. On the contrary, even a health care professional, the medical doctor, made his own assessment that the case should be reported to the child welfare authorities.", "45. It is therefore only in exceptional cases that restriction of the right to freedom of expression in this sphere can be accepted as necessary in a democratic society. In the Court's view, sufficient reasons for the interference have not been shown to exist and the restriction on the applicant's right to freedom of expression therefore failed to answer any “pressing social need”.", "46. There has therefore been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "47. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "48. Under the head of non-pecuniary damage the applicant claimed 8,000 euros (EUR ) for mental suffering and distress. Under the head of pecuniary damage she claimed EUR 3,616.41 for the sums she was ordered to pay to the boy's father.", "49. The Government considered the claim for non-pecuniary damage excessive as to quantum. The award should not exceed EUR 2,500. The Government considered that the applicant might be entitled to compensation for pecuniary damage as far as the legal costs and expenses paid to T. were concerned.", "50. The Court finds that there is a causal link between the violation found and the alleged pecuniary damage. Consequently, there is justification for making an award. The Court awards the applicant EUR 3,616.41 under this head. The Court accepts that the applicant has also suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 3 ,000 under this head.", "B. Costs and expenses", "51. The applicant also claimed EUR 72.62 for the costs and expenses incurred before the domestic courts and EUR 2,623.21 (inclusive of value-added tax) for those incurred before the Court.", "52. The Government considered that the costs could be awarded in full.", "53. The Court considers it reasonable to award the sum of EUR 72.62 for the domestic proceedings and the sum of EUR 2,623.21 (inclusive of value-added tax) for the proceedings before the Court.", "C. Default interest", "54. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The facts of the case, as submitted by the applicants, may be summarised as follows.", "5. The applicants are four Slovak nationals who live in Košice. The first applicant, Mrs E. S., was born in 1964. She is the mother of the second applicant, Ms Er. S., the third applicant, Ms Ja. S., and the fourth applicant, Mr Já. S., who were born in 1986, 1989 and 1988 respectively.", "6. On 7 March 2001 the applicants left the apartment in which they lived with Mr S., who was the first applicant ’ s husband and the father of the second, third and fourth applicants. The first applicant moved the second, third and fourth applicants away from the apartment to protect them from physical and sexual abuse by Mr S.", "7. On 11 April 2001 the first applicant filed for divorce against her husband in the Košice I District Court. On 25 June 2001 the District Court placed the second, third and fourth applicants in her care pending the outcome of the divorce proceedings. On 19 March 2002 the District Court granted the petition for divorce. The divorce was finalised on 6 May 2002. The first applicant was granted custody of the second, third and fourth applicants on 18 November 2003.", "8. On 21 May 2001 the first applicant filed a criminal complaint against her husband on the ground that he had ill-treated both her and the children and had sexually abused one of their daughters.", "9. On the same day the first applicant requested that the Košice I District Court issue an interim measure ordering her husband to move out of the municipal apartment that they held under a joint tenancy. In making the request, the first applicant referred to her husband ’ s behaviour in respect of the children and submitted the opinion of an expert, which indicated that the second, third and fourth applicants had suffered from physical and psychological ill-treatment on account of their father ’ s behaviour and expressed the view that it was absolutely necessary to separate the four applicants from him.", "10. Articles 74 and 76 of the Code of Civil Procedure permitted the courts to issue an interim measure requiring the parties to perform something, forbear from something or bear something. On 20 June 2001 the District Court dismissed the first applicant ’ s request as her husband had a tenancy right in respect of the apartment and the court considered that it lacked the power to restrict his right to use it. As a consequence, the applicants had to move away from their home, their family and their friends and the second and third applicants had to move to a new school.", "11. The first applicant appealed to the Regional Court in Košice. She informed the court that the children had been placed in her custody and that criminal proceedings had been brought against their father.", "12. On 31 August 2001 the Regional Court in Košice upheld the first-instance decision not to issue an interim measure. It held, with reference to the relevant law and practice, that the first applicant would be entitled to bring proceedings with a view to terminating the joint tenancy of the apartment only after a final decision had been delivered in the divorce proceedings. Ordering an interim measure in the terms requested by the first applicant would impose a disproportionate burden on her husband. The Regional Court indicated, however, that an interim measure could have been issued if the first applicant had instead requested that her husband be ordered to abstain from inappropriate behaviour towards her and the children and to abstain from threatening them.", "13. The applicants complained to the Constitutional Court. On 18 June 2003, shortly before the Constitutional Court issued its judgment, the first applicant ’ s former husband was convicted by the Regional Court in Košice of ill-treatment, violence and sexual abuse. He was sentenced to four years ’ imprisonment. An expert opinion submitted in the context of the criminal proceedings indicated that contact with their father had an adverse effect on the second, third and fourth applicants ’ health and development.", "14. In a judgment dated 9 July 2003, the Constitutional Court found that the Košice I District Court and the Regional Court in Košice, by failing to take appropriate action with a view to protecting the second, third and fourth applicants from ill-treatment by their father, had violated their rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse.", "15. The documentary evidence in the case was sufficient to conclude that the applicants had been subjected to physical violence and abuse by the husband of the first applicant. The decision stated that the second, third and fourth applicants had not been parties to the proceedings concerning the interim measure. In view of the facts of the case, the ordinary courts should, nevertheless, have issued an interim measure of their own initiative with a view to protecting the children from abuse and ill-treatment by their father. Such an obligation resulted from the relevant provision of the Code of Civil Procedure as well as from the Convention on the Rights of the Child.", "16. The Constitutional Court held that the finding of a violation provided in itself appropriate just satisfaction to the three applicants concerned. It therefore dismissed their request for compensation for non-pecuniary damage.", "17. As regards the first applicant, the Regional Court ’ s decision stated that an interim measure could have been granted had she phrased her request in a different manner. In reaching that conclusion the Regional Court had not, in the Constitutional Court ’ s view, acted contrary to the first applicant ’ s constitutional rights.", "18. In January 2003 the relevant legislation had been amended specifically to provide that the domestic courts could order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.” One week before the Constitutional Court issued its judgment, the first applicant lodged with the Košice I District Court a motion for an interim measure ordering, inter alia, her former husband not to enter the common apartment. On 7 July 2003 Košice I District Court issued an interim order in those terms, starting with the date of the delivery of the decision and expiring fifteen days after the order became enforceable. Moreover, the court ordered the first applicant to file an action for exclusion from the apartment within thirty days from the date of delivery of the decision. The decision became enforceable on 29 October 2003.", "19. On 10 July 2003 the first applicant filed an action with the Košice I District Court to exclude her former husband from using the apartment. On 18 May 2004 she filed with the Košice I District Court an action for cancellation of the right to joint lease of the apartment. On 10 December 2004 the Košice I District Court cancelled the right to a joint lease of the apartment and the first applicant became the exclusive tenant thereof. Furthermore, the court ordered the applicant ’ s former husband to move from the apartment within fifteen days from the date of final judgment." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Code of Civil Procedure (applicable up to and including 31 December 2001)", "20. Article 74 (1) of the Code of Civil Procedure, provides as follows:", "“Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened.", "The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.”", "21. Article 76 provides that through an interim measure the court may impose upon the party, within the time assigned by the court, to perform something, to forbear from something, or to bear something.", "B. Code of Civil Procedure (as applicable from 1 January 2003 to 31 August 2003)", "22. The amended Article 74 provided:", "“Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened.", "The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.”", "23. The amended Article 76 specifically provides that the court may order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.”", "C. Civil Code (as applicable from 1 January 2003)", "24. Article 705a (8) of the Civil Code provides:", "“If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband, who is the joint user of an apartment, or from a close person jointly using an apartment, based on a motion of one of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him/her totally from the right of use of an apartment.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "25. The applicants complained under Articles 3 and 8 of the Convention that the authorities had failed to protect them in an appropriate manner from treatment to which they had been subjected by their husband/father. Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "26. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "27. The Government admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. Nevertheless, the Government contended that the second, third and fourth applicants were no longer victims because they were provided with satisfactory redress at the national level.", "28. With regard to the first applicant, the Government submitted that her application was inadmissible as she failed to exhaust domestic remedies.", "A. Admissibility", "29. The Government submitted that the first applicant failed to exhaust domestic remedies. The Regional Court advised her that she had not formulated the claim correctly and that she should have requested the issuance of an interim measure formulated with regard to the specific behaviour of her former husband. In this regard she was in a different position from the second, third and fourth applicants, who, as minors, were warranted special protection by the courts. Unlike the other applicants, the first applicant could not succeed before the civil courts without a legally relevant motion. As she at no time brought such a motion her subsequent complaint to the Constitutional Court was unsuccessful.", "30. The Government further submitted that adequate redress had been afforded to the second, third and fourth applicants through the Constitutional Court ’ s decision of 9 July 2003, in which it held in substance that the failure of the lower courts to meet the positive obligation to protect vulnerable minors had violated their rights under Articles 3 and 8 of the Convention. They submitted that redress did not consist exclusively in the provision of financial satisfaction. Rather, they argued that in the event of a violation of Article 2 or 3 of the Convention, compensation of non-pecuniary damage is only one of the possible remedies ( Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2 001 ‑ III). In the present case, the Constitutional Court considered the specific circumstances of the case and concluded that the finding of a violation amounted to sufficient satisfaction. In particular, the court noted that the first applicant had contributed to any injury incurred by failing to file a motion in the terms directed by the Regional Court. Moreover, the Government submitted that by the date of the Constitutional Court decision, the applicants ’ husband/father had been sentenced to four years ’ imprisonment and Article 76 of the Code of Civil Procedure had been amended to specify that the courts had jurisdiction to order that a person suspected of violence could not enter a particular house or apartment.", "31. The first applicant submitted that the remedy identified by the Government, namely an order that her former husband abstain from inappropriate behaviour towards her and the second, third and fourth applicants, did not amount to an effective remedy because it would not have afforded sufficient protection to her or her children. As the threat of a significant prison sentence failed previously to deter her former husband from “inappropriate behaviour”, it was not reasonable to conclude that the interim measure would have afforded her sufficient protection.", "32. The second, third and fourth applicants submitted that they had not lost their victim status as the national authorities had not afforded them adequate redress for the breach of their Convention rights. In particular, they submitted that in similar cases the Constitutional Court had frequently, and almost without exception, granted applicants appropriate financial satisfaction.", "33. The Court recalls that it is incumbent on a Government claiming non-exhaustion to satisfy the Court that there was an effective remedy available in theory and in practice at the relevant time which was accessible, capable of providing redress in respect of the applicant ’ s complaints and offering reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV). In view of the comments made by the Regional Court, it would appear that the first applicant would have had a reasonable prospect of success had she applied for an interim measure ordering her former husband to refrain from any inappropriate behaviour. The Court is not persuaded, however, that such an interim measure would have provided adequate redress in respect of the first applicant ’ s claims. She was concerned that her former husband, who at the time stood accused of physically assaulting both her and her children and of sexually abusing one of her daughters, still had a legal right to enter and reside in the rented property which she shared with the children. She therefore requested an interim order excluding him from the property. An order requiring him to refrain from inappropriate behaviour towards her or the children would have afforded substantially weaker protection than that originally sought. In fact, all that the order would have required of the first applicant ’ s former husband was that he refrained from doing acts already prohibited by the criminal law, which previously had failed to provide an adequate deterrent. The Court therefore finds that an application for such an interim measure did not constitute an effective domestic remedy for the purposes of Article 35 § 1 of the Convention. The first applicant has therefore exhausted all effective domestic remedies.", "34. With regard to the second, third and fourth applicants, the Court recalls that the nature of the right at stake has implications for the type of remedy the State is required to provide. Where violations of the rights enshrined in Articles 2 and 3 are alleged, compensation for pecuniary and non-pecuniary damage should in principle be part of the range of redress available (see Öneryıldız v. Turkey [GC], no. 48939/99, § 147, ECHR 2004 ‑ XII; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 97, ECHR 2002 ‑ II; Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001 ‑ V; and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V).", "35. In the present case the State provided a remedy through which compensation for non-pecuniary damage was, at least in principle, part of the redress available. Nevertheless, having found a violation of the second, third and fourth applicants ’ rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse, the Constitutional Court declined to award financial compensation, finding instead that the identification of a violation alone amounted to adequate redress.", "36. The Court is not persuaded by the reasons proffered by the Government for the decision not to award financial compensation to the second, third and fourth applicants. In view of the Constitutional Court ’ s finding that the lower courts could have – and should have – granted the original application made by the first applicant, and this Court ’ s finding that an application for an interim measure in the terms suggested by the Regional Court did not constitute an effective remedy, the Court finds little force in the Government ’ s submission that any subsequent injury sustained by the applicants was at least in part the first applicant ’ s responsibility for failing to make a second application. Moreover, the conviction of the second, third and fourth applicants ’ father more than two years after the first application was filed on 21 May 2003 and the subsequent amendment to the Code of Criminal Procedure in January 2003 did not amount to adequate redress for three minors who were forced to leave the family home because the State failed to offer them protection from an abusive parent for up to two years.", "37. The Court therefore finds that as a result of the Constitutional Court ’ s failure to award financial compensation to the second, third and fourth applicant, they have not obtained adequate redress for the violation of their rights under Articles 3 and 8 of the Convention.", "38. The Court further notes that the application is not inadmissible on any other grounds. The application must therefore be declared admissible.", "B. Merits", "39. The Government have admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government have further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants.", "40. The Court therefore finds that the respondent State failed to discharge the positive obligation to protect the rights of the second, third and fourth applicants under Articles 3 and 8 of the Convention.", "41. The first applicant denied that her rights under Articles 3 and 8 were adequately protected by the State", "42. The Government, on the other hand, submitted that she had failed to obtain protection from her former husband because she wrongly formulated the claim of her motion. By contrast, all of her subsequent applications for protection were successful. On 7 July 2003, following an amendment to the law, an interim measure was granted forbidding her former husband from entering the apartment and subsequently, on 10 December 2004, the right to the joint lease on the apartment was cancelled. In any case, on 18 June 2003 the first applicant ’ s former husband was convicted of cruelty towards her and the children and was sentenced to over four years in prison. Consequently, the Government submit that the first applicant was provided with effective protection against ill-treatment at the hands of her former husband and against any interference with her right to respect for her private and home life.", "43. The Court has already found that the alternate measure proposed by the Regional Court would not have afforded the applicant adequate protection against her former husband. The subsequent orders relied on by the Government were only granted in July 2003 and December 2004. The applicant could not have brought the application for an interim measure forbidding her former husband from entering the apartment until after the relevant law was amended in January 2003. It is not clear why the order severing the tenancy was not granted until December 2004 when the divorce was finalised in May 2002, or indeed whether the fault for this delay lies with the first applicant or the domestic court. In any case the first applicant was not in a position to apply to sever the tenancy until her divorce was finalised in May 2002, approximately a year after the allegations were first brought against her former husband. Given the nature and severity of the allegations, the first applicant and her children required protection immediately, and not a year or two years after the allegations first came to light. The Court finds that during this period no effective remedy was open to the first applicant by which she could secure protection for herself and her children against the acts of her former husband.", "44. In relation to the second, third and fourth applicants, the Government admitted that if they were victims for the purposes of Article 35 § 1, there had been a failure to protect them which resulted in a violation of their rights under Articles 3 and 8 of the Convention. In relation to the first applicant, the Government argued that the State had offered her adequate protection against her former husband. The Government have not, however, suggested that the first applicant was not subjected to treatment which reached the threshold of Articles 3 and 8. Therefore, in view of the Court ’ s finding that the State did not offer her adequate protection against her former husband, the Court finds the respondent State failed to discharge the positive obligation to protect the rights of the first applicant under Articles 3 and 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "45. The applicants alleged that the facts of the case also gave rise to a violation of Article 5 § 1 of the Convention.", "46. The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "47. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "48. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "49. The applicants claimed the following sums in respect of non-pecuniary damage :", "The first applicant: EUR 16, 596.96;", "The second applicant: EUR 33,19 3.92;", "The third applicant: EUR 23,235.74;", "The fourth applicant: EUR 23,235.74.", "50. The Government submitted that the claims were overstated and did not reflect the true subject value of the claims.", "51. While the Court has found a violation of Article 3 of the Convention in respect of each of the four applicants, the violation was breach of a positive obligation to take adequate steps to protect the applicants. As a consequence, the applicants had to leave their home and relocate elsewhere. There is no indication that they subsequently were subjected to further ill-treatment or abuse.", "52. Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that claimed by the applicants. Moreover, it sees no basis for distinguishing between the applicants in respect of the quantum of the award. They are a family unit and the violation affected them collectively and equally.", "53. The Court therefore awards the applicants jointly EUR 8, 000 in respect of non-pecuniary damage.", "B. Costs and expenses", "54. The applicants also claimed EUR 650.60 for the costs and expenses incurred before the Constitutional Court and EUR 1, 437.8 3 for those incurred before the Court.", "55. The Government submitted that the applicants have not provided evidence to prove that they actually paid the sums claimed to their advocate. Moreover, the Government submitted that the amount charged by the advocate and claimed by the applicants was overstated.", "56. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Provided that the costs have in fact been incurred, it is not necessary for the applicant to demonstrate that they have been paid to the advocate. In the present case, the advocate has submitted a bill and the Court is satisfied that the costs set out therein were incurred in the course of proceedings before this Court and the Constitutional Court. The Court therefore considers it reasonable to award the applicants jointly the sum of EUR 2, 000 covering costs under all heads.", "C. Default interest", "57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The facts of the case, as submitted by the applicants, may be summarised as follows.", "5. The applicants are four Slovak nationals who live in Košice. The first applicant, Mrs E. S., was born in 1964. She is the mother of the second applicant, Ms Er. S., the third applicant, Ms Ja. S., and the fourth applicant, Mr Já. S., who were born in 1986, 1989 and 1988 respectively.", "6. On 7 March 2001 the applicants left the apartment in which they lived with Mr S., who was the first applicant ’ s husband and the father of the second, third and fourth applicants. The first applicant moved the second, third and fourth applicants away from the apartment to protect them from physical and sexual abuse by Mr S.", "7. On 11 April 2001 the first applicant filed for divorce against her husband in the Košice I District Court. On 25 June 2001 the District Court placed the second, third and fourth applicants in her care pending the outcome of the divorce proceedings. On 19 March 2002 the District Court granted the petition for divorce. The divorce was finalised on 6 May 2002. The first applicant was granted custody of the second, third and fourth applicants on 18 November 2003.", "8. On 21 May 2001 the first applicant filed a criminal complaint against her husband on the ground that he had ill-treated both her and the children and had sexually abused one of their daughters.", "9. On the same day the first applicant requested that the Košice I District Court issue an interim measure ordering her husband to move out of the municipal apartment that they held under a joint tenancy. In making the request, the first applicant referred to her husband ’ s behaviour in respect of the children and submitted the opinion of an expert, which indicated that the second, third and fourth applicants had suffered from physical and psychological ill-treatment on account of their father ’ s behaviour and expressed the view that it was absolutely necessary to separate the four applicants from him.", "10. Articles 74 and 76 of the Code of Civil Procedure permitted the courts to issue an interim measure requiring the parties to perform something, forbear from something or bear something. On 20 June 2001 the District Court dismissed the first applicant ’ s request as her husband had a tenancy right in respect of the apartment and the court considered that it lacked the power to restrict his right to use it. As a consequence, the applicants had to move away from their home, their family and their friends and the second and third applicants had to move to a new school.", "11. The first applicant appealed to the Regional Court in Košice. She informed the court that the children had been placed in her custody and that criminal proceedings had been brought against their father.", "12. On 31 August 2001 the Regional Court in Košice upheld the first-instance decision not to issue an interim measure. It held, with reference to the relevant law and practice, that the first applicant would be entitled to bring proceedings with a view to terminating the joint tenancy of the apartment only after a final decision had been delivered in the divorce proceedings. Ordering an interim measure in the terms requested by the first applicant would impose a disproportionate burden on her husband. The Regional Court indicated, however, that an interim measure could have been issued if the first applicant had instead requested that her husband be ordered to abstain from inappropriate behaviour towards her and the children and to abstain from threatening them.", "13. The applicants complained to the Constitutional Court. On 18 June 2003, shortly before the Constitutional Court issued its judgment, the first applicant ’ s former husband was convicted by the Regional Court in Košice of ill-treatment, violence and sexual abuse. He was sentenced to four years ’ imprisonment. An expert opinion submitted in the context of the criminal proceedings indicated that contact with their father had an adverse effect on the second, third and fourth applicants ’ health and development.", "14. In a judgment dated 9 July 2003, the Constitutional Court found that the Košice I District Court and the Regional Court in Košice, by failing to take appropriate action with a view to protecting the second, third and fourth applicants from ill-treatment by their father, had violated their rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse.", "15. The documentary evidence in the case was sufficient to conclude that the applicants had been subjected to physical violence and abuse by the husband of the first applicant. The decision stated that the second, third and fourth applicants had not been parties to the proceedings concerning the interim measure. In view of the facts of the case, the ordinary courts should, nevertheless, have issued an interim measure of their own initiative with a view to protecting the children from abuse and ill-treatment by their father. Such an obligation resulted from the relevant provision of the Code of Civil Procedure as well as from the Convention on the Rights of the Child.", "16. The Constitutional Court held that the finding of a violation provided in itself appropriate just satisfaction to the three applicants concerned. It therefore dismissed their request for compensation for non-pecuniary damage.", "17. As regards the first applicant, the Regional Court ’ s decision stated that an interim measure could have been granted had she phrased her request in a different manner. In reaching that conclusion the Regional Court had not, in the Constitutional Court ’ s view, acted contrary to the first applicant ’ s constitutional rights.", "18. In January 2003 the relevant legislation had been amended specifically to provide that the domestic courts could order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.” One week before the Constitutional Court issued its judgment, the first applicant lodged with the Košice I District Court a motion for an interim measure ordering, inter alia, her former husband not to enter the common apartment. On 7 July 2003 Košice I District Court issued an interim order in those terms, starting with the date of the delivery of the decision and expiring fifteen days after the order became enforceable. Moreover, the court ordered the first applicant to file an action for exclusion from the apartment within thirty days from the date of delivery of the decision. The decision became enforceable on 29 October 2003.", "19. On 10 July 2003 the first applicant filed an action with the Košice I District Court to exclude her former husband from using the apartment. On 18 May 2004 she filed with the Košice I District Court an action for cancellation of the right to joint lease of the apartment. On 10 December 2004 the Košice I District Court cancelled the right to a joint lease of the apartment and the first applicant became the exclusive tenant thereof. Furthermore, the court ordered the applicant ’ s former husband to move from the apartment within fifteen days from the date of final judgment." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Code of Civil Procedure (applicable up to and including 31 December 2001)", "20. Article 74 (1) of the Code of Civil Procedure, provides as follows:", "“Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened.", "The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.”", "21. Article 76 provides that through an interim measure the court may impose upon the party, within the time assigned by the court, to perform something, to forbear from something, or to bear something.", "B. Code of Civil Procedure (as applicable from 1 January 2003 to 31 August 2003)", "22. The amended Article 74 provided:", "“Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened.", "The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.”", "23. The amended Article 76 specifically provides that the court may order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.”", "C. Civil Code (as applicable from 1 January 2003)", "24. Article 705a (8) of the Civil Code provides:", "“If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband, who is the joint user of an apartment, or from a close person jointly using an apartment, based on a motion of one of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him/her totally from the right of use of an apartment.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "25. The applicants complained under Articles 3 and 8 of the Convention that the authorities had failed to protect them in an appropriate manner from treatment to which they had been subjected by their husband/father. Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "26. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "27. The Government admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. Nevertheless, the Government contended that the second, third and fourth applicants were no longer victims because they were provided with satisfactory redress at the national level.", "28. With regard to the first applicant, the Government submitted that her application was inadmissible as she failed to exhaust domestic remedies.", "A. Admissibility", "29. The Government submitted that the first applicant failed to exhaust domestic remedies. The Regional Court advised her that she had not formulated the claim correctly and that she should have requested the issuance of an interim measure formulated with regard to the specific behaviour of her former husband. In this regard she was in a different position from the second, third and fourth applicants, who, as minors, were warranted special protection by the courts. Unlike the other applicants, the first applicant could not succeed before the civil courts without a legally relevant motion. As she at no time brought such a motion her subsequent complaint to the Constitutional Court was unsuccessful.", "30. The Government further submitted that adequate redress had been afforded to the second, third and fourth applicants through the Constitutional Court ’ s decision of 9 July 2003, in which it held in substance that the failure of the lower courts to meet the positive obligation to protect vulnerable minors had violated their rights under Articles 3 and 8 of the Convention. They submitted that redress did not consist exclusively in the provision of financial satisfaction. Rather, they argued that in the event of a violation of Article 2 or 3 of the Convention, compensation of non-pecuniary damage is only one of the possible remedies ( Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2 001 ‑ III). In the present case, the Constitutional Court considered the specific circumstances of the case and concluded that the finding of a violation amounted to sufficient satisfaction. In particular, the court noted that the first applicant had contributed to any injury incurred by failing to file a motion in the terms directed by the Regional Court. Moreover, the Government submitted that by the date of the Constitutional Court decision, the applicants ’ husband/father had been sentenced to four years ’ imprisonment and Article 76 of the Code of Civil Procedure had been amended to specify that the courts had jurisdiction to order that a person suspected of violence could not enter a particular house or apartment.", "31. The first applicant submitted that the remedy identified by the Government, namely an order that her former husband abstain from inappropriate behaviour towards her and the second, third and fourth applicants, did not amount to an effective remedy because it would not have afforded sufficient protection to her or her children. As the threat of a significant prison sentence failed previously to deter her former husband from “inappropriate behaviour”, it was not reasonable to conclude that the interim measure would have afforded her sufficient protection.", "32. The second, third and fourth applicants submitted that they had not lost their victim status as the national authorities had not afforded them adequate redress for the breach of their Convention rights. In particular, they submitted that in similar cases the Constitutional Court had frequently, and almost without exception, granted applicants appropriate financial satisfaction.", "33. The Court recalls that it is incumbent on a Government claiming non-exhaustion to satisfy the Court that there was an effective remedy available in theory and in practice at the relevant time which was accessible, capable of providing redress in respect of the applicant ’ s complaints and offering reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV). In view of the comments made by the Regional Court, it would appear that the first applicant would have had a reasonable prospect of success had she applied for an interim measure ordering her former husband to refrain from any inappropriate behaviour. The Court is not persuaded, however, that such an interim measure would have provided adequate redress in respect of the first applicant ’ s claims. She was concerned that her former husband, who at the time stood accused of physically assaulting both her and her children and of sexually abusing one of her daughters, still had a legal right to enter and reside in the rented property which she shared with the children. She therefore requested an interim order excluding him from the property. An order requiring him to refrain from inappropriate behaviour towards her or the children would have afforded substantially weaker protection than that originally sought. In fact, all that the order would have required of the first applicant ’ s former husband was that he refrained from doing acts already prohibited by the criminal law, which previously had failed to provide an adequate deterrent. The Court therefore finds that an application for such an interim measure did not constitute an effective domestic remedy for the purposes of Article 35 § 1 of the Convention. The first applicant has therefore exhausted all effective domestic remedies.", "34. With regard to the second, third and fourth applicants, the Court recalls that the nature of the right at stake has implications for the type of remedy the State is required to provide. Where violations of the rights enshrined in Articles 2 and 3 are alleged, compensation for pecuniary and non-pecuniary damage should in principle be part of the range of redress available (see Öneryıldız v. Turkey [GC], no. 48939/99, § 147, ECHR 2004 ‑ XII; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 97, ECHR 2002 ‑ II; Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001 ‑ V; and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V).", "35. In the present case the State provided a remedy through which compensation for non-pecuniary damage was, at least in principle, part of the redress available. Nevertheless, having found a violation of the second, third and fourth applicants ’ rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse, the Constitutional Court declined to award financial compensation, finding instead that the identification of a violation alone amounted to adequate redress.", "36. The Court is not persuaded by the reasons proffered by the Government for the decision not to award financial compensation to the second, third and fourth applicants. In view of the Constitutional Court ’ s finding that the lower courts could have – and should have – granted the original application made by the first applicant, and this Court ’ s finding that an application for an interim measure in the terms suggested by the Regional Court did not constitute an effective remedy, the Court finds little force in the Government ’ s submission that any subsequent injury sustained by the applicants was at least in part the first applicant ’ s responsibility for failing to make a second application. Moreover, the conviction of the second, third and fourth applicants ’ father more than two years after the first application was filed on 21 May 2003 and the subsequent amendment to the Code of Criminal Procedure in January 2003 did not amount to adequate redress for three minors who were forced to leave the family home because the State failed to offer them protection from an abusive parent for up to two years.", "37. The Court therefore finds that as a result of the Constitutional Court ’ s failure to award financial compensation to the second, third and fourth applicant, they have not obtained adequate redress for the violation of their rights under Articles 3 and 8 of the Convention.", "38. The Court further notes that the application is not inadmissible on any other grounds. The application must therefore be declared admissible.", "B. Merits", "39. The Government have admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government have further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants.", "40. The Court therefore finds that the respondent State failed to discharge the positive obligation to protect the rights of the second, third and fourth applicants under Articles 3 and 8 of the Convention.", "41. The first applicant denied that her rights under Articles 3 and 8 were adequately protected by the State", "42. The Government, on the other hand, submitted that she had failed to obtain protection from her former husband because she wrongly formulated the claim of her motion. By contrast, all of her subsequent applications for protection were successful. On 7 July 2003, following an amendment to the law, an interim measure was granted forbidding her former husband from entering the apartment and subsequently, on 10 December 2004, the right to the joint lease on the apartment was cancelled. In any case, on 18 June 2003 the first applicant ’ s former husband was convicted of cruelty towards her and the children and was sentenced to over four years in prison. Consequently, the Government submit that the first applicant was provided with effective protection against ill-treatment at the hands of her former husband and against any interference with her right to respect for her private and home life.", "43. The Court has already found that the alternate measure proposed by the Regional Court would not have afforded the applicant adequate protection against her former husband. The subsequent orders relied on by the Government were only granted in July 2003 and December 2004. The applicant could not have brought the application for an interim measure forbidding her former husband from entering the apartment until after the relevant law was amended in January 2003. It is not clear why the order severing the tenancy was not granted until December 2004 when the divorce was finalised in May 2002, or indeed whether the fault for this delay lies with the first applicant or the domestic court. In any case the first applicant was not in a position to apply to sever the tenancy until her divorce was finalised in May 2002, approximately a year after the allegations were first brought against her former husband. Given the nature and severity of the allegations, the first applicant and her children required protection immediately, and not a year or two years after the allegations first came to light. The Court finds that during this period no effective remedy was open to the first applicant by which she could secure protection for herself and her children against the acts of her former husband.", "44. In relation to the second, third and fourth applicants, the Government admitted that if they were victims for the purposes of Article 35 § 1, there had been a failure to protect them which resulted in a violation of their rights under Articles 3 and 8 of the Convention. In relation to the first applicant, the Government argued that the State had offered her adequate protection against her former husband. The Government have not, however, suggested that the first applicant was not subjected to treatment which reached the threshold of Articles 3 and 8. Therefore, in view of the Court ’ s finding that the State did not offer her adequate protection against her former husband, the Court finds the respondent State failed to discharge the positive obligation to protect the rights of the first applicant under Articles 3 and 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "45. The applicants alleged that the facts of the case also gave rise to a violation of Article 5 § 1 of the Convention.", "46. The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "47. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "48. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "49. The applicants claimed the following sums in respect of non-pecuniary damage :", "The first applicant: EUR 16, 596.96;", "The second applicant: EUR 33,19 3.92;", "The third applicant: EUR 23,235.74;", "The fourth applicant: EUR 23,235.74.", "50. The Government submitted that the claims were overstated and did not reflect the true subject value of the claims.", "51. While the Court has found a violation of Article 3 of the Convention in respect of each of the four applicants, the violation was breach of a positive obligation to take adequate steps to protect the applicants. As a consequence, the applicants had to leave their home and relocate elsewhere. There is no indication that they subsequently were subjected to further ill-treatment or abuse.", "52. Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that claimed by the applicants. Moreover, it sees no basis for distinguishing between the applicants in respect of the quantum of the award. They are a family unit and the violation affected them collectively and equally.", "53. The Court therefore awards the applicants jointly EUR 8, 000 in respect of non-pecuniary damage.", "B. Costs and expenses", "54. The applicants also claimed EUR 650.60 for the costs and expenses incurred before the Constitutional Court and EUR 1, 437.8 3 for those incurred before the Court.", "55. The Government submitted that the applicants have not provided evidence to prove that they actually paid the sums claimed to their advocate. Moreover, the Government submitted that the amount charged by the advocate and claimed by the applicants was overstated.", "56. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Provided that the costs have in fact been incurred, it is not necessary for the applicant to demonstrate that they have been paid to the advocate. In the present case, the advocate has submitted a bill and the Court is satisfied that the costs set out therein were incurred in the course of proceedings before this Court and the Constitutional Court. The Court therefore considers it reasonable to award the applicants jointly the sum of EUR 2, 000 covering costs under all heads.", "C. Default interest", "57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "5. The second applicant was born in 1976 and the first applicant in 2001 and they live in Zadar.", "6. On 23 June 2001 the second applicant married I.M.", "7. On 4 September 2001 the second applicant gave birth to the first applicant.", "8. Relations between the spouses deteriorated, and in 2006 the second applicant brought a civil action against her husband seeking divorce, custody of, and maintenance for the first applicant. Her husband, I.M., filed a counterclaim, seeking custody of the first applicant.", "9. In the period between 5 July 2006 and 7 March 2008 a total of eight criminal complaints were filed against the second applicant and I.M. Most of these complaints were filed against each other directly, but some were filed at the initiative of the police. Three of those eight complaints resulted in criminal proceedings being instituted (two against I.M. and one against both I.M. and the second applicant), the outcome of which is unknown. The remaining five criminal complaints were dismissed, including three in which it was alleged that criminal offences of child abuse and domestic violence had been committed against the first applicant.", "10. By a judgment of 24 August 2007, the Zadar Municipal Court ( Općinski sud u Zadru ) (a) granted the second applicant and I.M. a divorce; (b) awarded I.M. custody of the first applicant; (c) granted the second applicant access (contact) rights; and (d) ordered the second applicant to make regular maintenance payments for the first applicant. In so deciding the court relied on the opinion of forensic experts in psychiatry and psychology obtained during the proceedings and on the recommendation of the Zadar Social Welfare Centre ( Centar za socijalnu skrb Zadar, “the local social welfare centre”) which participated in those proceedings as an intervener sui generis with a view to protecting the first applicant ’ s interests. The judgment became final on 2 January 2008.", "11. Previously, by a decision of 7 November 2006 the local social welfare centre had ordered a child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed with a view to improving communication between the second applicant and I.M. regarding the first applicant, and also with a view to preventing her from being drawn into their conflict. The measure lasted until 31 August 2008, when it was discontinued. In its decision of 2 September 2008 the local social welfare centre stated, inter alia, the following:", "“The measure only partly achieved its goal, in that contact with the mother has stabilised. The parents still do not communicate with each other and it is evident that the mother intends to continue with such behaviour. Furthermore, the mother ’ s cooperation with the supervising officer is not adequate and it is evident that the measure has become futile.”", "B. The alleged abuse", "12. The applicants submit that on 1 February 2011 the first applicant ’ s father I.M. hit her in the face and squeezed her throat while verbally abusing her.", "13. The next day the second applicant took the first applicant to the police to report the incident. The police instructed them to see a doctor and accompanied them to the local hospital, where the first applicant was examined by an ophthalmologist, who diagnosed her with bruising of the eyeball and eye socket tissue. In particular, the ophthalmologist noted:", "“Clinically discrete haematoma of the left lower eyelid, in resorption. The motility of the eyes is normal, no diplopia [double vision], no clinical signs of orbit fracture.", "Pupils are normal, lenses [are] in place, transparent, fundus [is] normal on both sides.", "Dg.: Contusio oc.sin.", "Haematoma palp.inf.oc.sin.", "Treatment: cold wraps [compresses] ... Into the eye: Effludimex sol ...", "Dg:", "S05.1. Bruising of the eyeball and the eye socket tissue”", "14. After examining the first applicant the ophthalmologist filled in a standard form to be submitted to the police, in which he indicated that the injury had been inflicted by a hard blow to the left eye, gave bruising of the left eyelid ( haematoma palp.inf.oc.sin. ) as his diagnosis, and described the injury as light.", "15. The applicants then returned to the police, where they both gave statements. In her statement the first applicant mentioned other instances of physical and psychological violence by her father in the past three years. The relevant part of the police record of the interview conducted with the first applicant reads as follows:", "“This interview was conducted regarding the violent behaviour of the [child ’ s] father I.M.", "[The child] stated that yesterday around 4 p.m., when she was getting ready to visit her mother D.M., she wanted to take a picture frame containing a lock of her hair which her mum had had framed when she had had her first haircut. She put the picture frame underneath her jacket because she knew that her dad would not allow her to take that picture frame to her mum. Then his girlfriend I.P. saw that she had something under her jacket and asked what it was. She replied that it was nothing. Then her father came and took the picture frame from under her jacket and told her that they would talk about it when she came home in the evening.", "... In the evening, around 8 p.m., mum took her back to her dad, who brought her into the room and called her a thief, hit her with his hand on the left eye, and started squeezing her neck and pushing her. During this she fell, but did not hurt herself because she fell on a bag which was on the floor. Then she vomited saliva because she felt nauseous from her father ’ s squeezing her neck. Then [her father ’ s partner] I.P. came and told her father to calm down, otherwise she [the first applicant] would vomit ... He then left and sat in the living room. She was very afraid and was crying, but nevertheless went to her room and did her homework for the next day. When she woke up in the morning she greeted her father with ‘ good morning ’ but he did not even look at her and just turned his head away. In the morning she felt slight pain under the left eye where her father had hit her. When she arrived at school she mentioned it to her teacher and her friends P. and A., because she felt the need to confide in someone.", "Today she went to her mum and told her everything that happened that evening. She was also very hurt when her dad rudely [swore at] her. He often does that, and did so [also] yesterday evening. He also called her a ‘ cow ’ and told her she was stupid. Because of his rude language she cried a lot thereafter. Dad tells her from time to time [to go to hell] and she does not like swearing, especially when he mentions her mum while doing so. A few months ago the father told her that through his friends he would ensure that she never heard from or saw her mum. She is therefore very afraid of her dad because he can be dangerous. She had seen her dad beating her mum and was therefore afraid that he might beat her the same way too. She states that her father is often rude to her, yelling at her, forcing her to eat food she does not like, and when she does not, grabs her chin and shoves the food into her mouth, which makes her feel sick. He often takes away her mobile phone so she cannot call her mum, and she would like to be in contact with her mum. Once he hit her on the leg with a hairbrush when she would not allow him to brush her hair. He also grabs her arm and squeezes it so hard that she has bruises afterwards. She states that she is very afraid of her dad and would like to live with her mum. Tonight she definitely does not want to go with her father but wants to stay with her mum. She is afraid that her father will beat her and yell at her. He often threatens her by waving his hand at her and saying ‘ look at it, look at it ’, with the intention of hitting her if she does not listen to him. The father also threatens to cut off her hair, knowing that she likes [her] long hair. He threatens her with that when she is crying for her mum, bites her fingernails or asks for a mobile phone. Dad often tells her that she must not love her [maternal] grandmother, [her mother ’ s partner] N. or his mum, whereas she loves them all.", "She further states that each time her mum or [her mother ’ s new partner] N. buys her something and she brings it to her father ’ s home he throws all those things into the rubbish. Therefore, she wears the things her mum bought her only when she goes to her mum ’ s place, as she is not allowed to wear them when she is at her dad ’ s home.", "Lastly, she states that she is very afraid of her dad and [particularly] ... that he might do something bad to her mum, because he constantly threatens to do so.", "The interview was conducted in the presence of a social worker from the Zadar Social Welfare Centre V.C.”", "16. The same day the police interviewed I.M. and his partner I.P. The relevant part of the police record of the interview conducted with I.M. reads as follows:", "“The interview was conducted in the presence of his advocate B.Z., regarding the complaint that he had hit his minor daughter ... In that connection he stated the following:", "...", "[He says that his former wife] does not regularly pay maintenance for [their] daughter ... amounting to 800 Croatian kunas (HRK) per month and up to the present day owes [him] HRK 15,000.", "[He submits that], sadly, [his former wife] manipulates their daughter ... and uses her so that she rejects everything that bears [his] surname. She even created a Facebook page for her under ... the surname of her current partner ...", "As regards his relationship with his daughter ..., [he] states that he, as a parent who wants to teach his child to respect work and discipline, has his duties, and that the child has to have certain discipline, [for example] she must not lie to her parents, and may not do whatever she pleases. When [his daughter] comes back from school ... he requires her to do her homework and study. As regards food, [he] states that he wishes [his daughter] to eat healthy and varied food, with fruit and vegetables, rice and meat, and that she does not only eat pizzas, sandwiches and sweets. He also does not like to throw away food and prefers that it is eaten.", "On 1 February 2011 around 3.50 p.m. [his daughter] was preparing to go to her mother and came into the kitchen to say goodbye. On that occasion [his partner] I.P. noticed that she had something under her jacket ... and asked what it was. [The daughter] replied that it was nothing, even though there was visibly something underneath it. He asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing the locks of her hair cut off when she was still a baby. [He] then asked her why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The daughter] said that it was for her mum and that if she had asked him if she could take it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home.", "[The daughter] came home at 8 p.m. and they continued their conversation because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [His daughter] replied that she wanted [the picture frame] to be at her mother ’ s place. [He] then reprimanded her for lying to him, saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. He admits that he is sometimes a strict parent but that he always behaves in a measured way and with [good] reason, and it is only ever exclusively done with a view to making her behave [better].", "Today, on 2 February 2011 [his daughter] was at school in the morning and in the afternoon was having fun with [him] and his [partner] ... Nothing suggested that [she] was in any way distressed by the previous evening ’ s events.", "[He] emphasises that all this was fabricated by her mother ... who has a negative influence on [their daughter].”", "17. The relevant part of the police record of the interview conducted with I.M. ’ s partner I.P. reads as follows:", "“The interview was conducted regarding a complaint that I.M. had hit his minor daughter ... In that connection she stated the following:", "On 1 February 2011 around 3.50 p.m. [her stepdaughter] was preparing to go to her mother and came into the kitchen to say goodbye to them. On that occasion [I.P.] noticed that she had something under her jacket ... and asked her what it was. [Her stepdaughter] replied that it was nothing, even though there was visibly something underneath her jacket. I.M. asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing locks of her hair cut off when she was a baby. [He] then asked [his daughter] why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The stepdaughter] said that it was for her mum, and that if she had asked him for it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home.", "[The stepdaughter] came home at 8 p.m. and she and her father continued their conversation, because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [The stepdaughter] replied that she wanted [the picture frame] to be at her mother ’ s place. I.M. then reprimanded her for lying to him, by saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. I.P. firmly states that on that occasion I.M. did not hit [his daughter], nor has she ever seen him hitting [her]. She says that I.M. has a temper and sometimes shouts when he considers that something is wrong, but that he is really not prone to physical violence or hitting the children. I.P. notes that [her stepdaughter] is generally very sensitive about her mother and immediately starts crying as regards anything related to her.”", "18. After the interviews, the first applicant was returned to her father I.M., following the intervention of an employee of the local social welfare centre.", "19. On 19 February 2011 the first applicant was, at the initiative of the second applicant, examined by a psychiatrist at the Psychiatric Hospital for Children and Young People in Zagreb. The relevant part of the psychiatrist ’ s observations reads as follows:", "“The child was with the mother at the police station and reported the incident [of 1 February 2011] because the mother, and also the child, claim that this was not the first time that the father has mistreated [the child], although not so much physically as psychologically ...", "During the interview with the girl it is evident that the child gets very upset at the mention of the father, she is afraid of him, ‘ constantly thinks that he will hit her again and would like to stay with mum ’. Dad is allegedly constantly threatening that he will ‘ cut off her hair if she keeps crying and mentioning mum ... ’ he often swears and utters vulgar expressions against the mother;all this was allegedly reported to the police ... (the interview was conducted first with the mother alone and then with the girl, also alone; [the child] talks about it all through tears and while biting her fingernails) ....", "The girl says that she remembers that ‘ she was asked when she was little with whom she wished to live and that she said with dad because she was told that she had to say that, now she regrets it ’ (she is crying all the time).", "The girl otherwise appears to have good intellectual capacity; she functions well outside the family, and is an A-grade pupil. There are no signs of psychotic disorder, and the girl is emphatic in contact except when she gets upset and talks rapidly when the topic of the father and his relationship with her is raised (thus there is an impression of strong fear of the father).", "Given the complexity of the family situation (the father has remarried and [the child] lives with him, his new wife, her daughter from her first marriage and two small half-sisters, while the mother also has a new partner with whom she has a small son) and the evident traumatisation of the child which has probably already lasted a long time, a psychiatric assessment of the child is recommended.", "Until then ... I recommend taking the girl to a psychologist ...", "Dg. Abused child, T 74.8”", "20. On 5 March 2011 the second applicant took the first applicant to a psychologist in Zagreb, who, inter alia, made the following observations:", "“The interviews, which were conducted with the mother alone and separately with the girl, indicate that the child is afraid of her father because he psychologically and sometimes physically abuses her ...", "The girl ... says that she would gladly live with mum if she could, and that dad speaks badly of mum ...", "The results show that [the child] is emotionally attached to her mum and thinks that her dad does not love her, is afraid of him, does not trust him, and thinks that it is not fair that dad constantly yells at her even when she is not at fault. Her biggest wish is to live with her mum and her family, and she finds it difficult to return to her dad ’ s home. She identifies with her mother and thinks that they are very much alike.", "Findings : [The girl] is a traumatised child with well above-average mental abilities, strong self-control, neuroticism, depressive affect, hypersensitive, anxious with strong inferiority complex. Discrete tremor is diagnosed.", "I recommend psychological and, if need be, psychiatric counselling.”", "21. On 30 March 2011 the Zadar Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zadru, hereafter “the State Attorney”) informed the second applicant that on the same day it had, concerning the incident of 1 February 2011, indicted I.M. before the Zadar Municipal Court for the criminal offence of bodily injury defined in Article 98 of the Criminal Code (for a more detailed description of the course of those proceedings see paragraphs 35-51 below).", "22. On the same day, 30 March 2011, the second applicant instituted civil proceedings before the Zadar Municipal Court seeking reversal of the custody arrangements set forth in that court ’ s judgment of 24 August 2007 (see paragraph 10 above; for a more detailed description of the course of those proceedings see paragraphs 60-81 below).", "23. On 22 April 2011 the second applicant took the first applicant back to the same psychologist (see paragraph 20 above). The psychiatrist made the following observations:", "“... The interview with [the child] was conducted without her mother ’ s presence.", "In contact silent, with depressive affect, cooperative, bites her fingernails, occasionally cries. We again had a conversation about the events of 1 February 2011 during which the child was psychologically and physically abused by her father, and which she in her mother ’ s presence reported to the police.", "[The child] says that that was not an isolated incident and that she is afraid of her father because she has continuously, from the moment she started living with him, been exposed to psychological and, from time to time, also physical abuse. She says that on multiple occasions he has threatened that he would hit her if she kept biting her fingernails and that he would take her mobile phone away. Previously she was more afraid of her father ’ s physical violence than now, but her mother encourages her by telling her not to be afraid and to ‘ endure difficult moments ’. The child states that she does not like living with her father because he threatens her and tells her that he will beat her. She says that mum loves her more, does not threaten her and is good to her. She uses suppression and ‘ forgetting ’ as defence mechanisms ...", "The child states that the father yells at her almost every day, swears, tells her that she is a ‘ stupid cow, pig, goat, thief, that she constantly defies him ’. She says that this offensive behaviour by her father is rarer since she reported him to the police.", "[The child] says that the father has threatened her that he will, through ‘ his people ’, take care that she does not hear from or see her mother. He threatens her that he will cut off her hair if she cries for her mother.", "The child alleges that her father forces her to eat so that she has to eat everything he puts on her plate and that she sometimes vomits because of that. If she refuses to eat everything the father holds her chin and ‘ shoves ’ the food in her mouth. If she resists, he smears the food over her face.", "After she reported him to the police, the father controlled himself for a couple of days, and then again started yelling but then to a lesser degree. He no longer shoves food in her mouth, but she has to eat everything he puts on her plate. Sometimes she has to eat something that she does not like, which the mother never does to her.", "[The child] is lonely at her father ’ s home, because she spends time only with her half-sisters; her friends are not allowed to visit in case [the younger half-sister] gets sick. After school the father allows her to meet with friends for half an hour only. She visited one of her friends only once and she did not dare to ask the father for more visits. She thinks that her father is stricter with her than with her older half-sister.", "I found out that the father speaks badly of the mother and her new partner in front of the child, that she has different clothes at her mother ’ s and her father ’ s places, and that the father threw the sneakers she got as a birthday present from her mother and her partner into the rubbish.", "Asked about her father ’ s wife, she says that she is better to her than her father: does not force her to eat, has never hit her, helps her with homework, and brushes her hair.", "The child shows a strong desire to live with her mother because she is emotionally closer to her, and because the mother supports her in difficult moments. She has many friends in her mother ’ s neighbourhood and is encouraged to spend time with them; she has fun and feels safe with her mother. Asked about [the behaviour of] her mother ’ s partner towards her, the child says he is good to her and tries to cheer her up, buys her presents, and is fun and pleasant to talk to.", "To the question whether, if she were to live with her mother, she would be allowed to see her father outside the visiting schedule ordered by the court, she says that it is certain that her mum would allow her to see her father whenever she wished to and states that ‘ she would like to move to her mum ’ s [place] right away and forever ’.", "Findings and recommendations : In order to prevent the development of irreversible psychopathological consequences due to continuous abuse, it is recommended that the child be immediately removed from the family where she currently lives and that custody be awarded to the mother.", "Psychological and if need be, psychiatric follow-up is also recommended.”", "24. On 4 May 2011 the second applicant again took the first applicant to the police to report another instance of abuse by her father, who had allegedly pressured her to change her earlier statements made before the police and the experts. The relevant part of the police record of the interview conducted with the first applicant on that occasion reads as follows:", "“This interview was conducted regarding inappropriate behaviour of the [child ’ s] father I.M.", "[The child] stated that a couple of days ago her dad ’ s girlfriend I. asked her whether she had visited a certain lady in Zagreb with her mum. She had replied that she had, whereupon I. had asked her what she had talked about with that lady in Zagreb and why she had not said anything about [it] to her dad. She replied that she had forgotten to mention it. After that her father had called her on her mobile phone and asked her to come to his café ... immediately. When she had arrived there he had started yelling at her and asking why she had been saying bad things about him and why she had not told him that she had been in Zagreb ... After that he had told her that she was lying like a dog and told her to get out of his sight.", "... Afterwards her dad had kept asking her whether she really wanted to live with her mum and she always replied that she did. A couple of days ago he had told her that she would not live with her mum until she was eighteen years old.", "[The child] also states that he said that he would report her mum for taking her to a doctor in Zagreb, and that she [the mother] would receive a criminal complaint for [having done] that. He [also] told her that he would now take her to a psychologist and to some other people where she would have to say that he had not hit her and that he was good to her.", "Today he had again asked her whether she really wanted to live with her mum and she had again replied to him that she did want to live with her mum.", "This interview was conducted in the presence of the [child ’ s] mother ...”", "25. On 7 May 2011 the first applicant ’ s father took her to a psychiatrist at the Polyclinic for the Protection of Children in Zagreb, who, after studying the opinions of 19 February, 5 March and 22 April 2011 (see paragraphs 19, 20 and 23 and above) and interviewing the first applicant, in his observations noted, inter alia, the following:", "“It is evident that [the child] is very burdened by her parents ’ conflict and the inadequacy of their mutual communication, which frequently goes through her. The girl shows affection towards, rather than fear of, her father. However, when asked what happened [on 1 February 2011] she did not want to talk about it; she was visibly emotionally burdened so I did not insist on it. She freely expresses her dissatisfaction by saying that she does not like it when her father raises his voice. Asked when that happens, she replies: ‘ when I do something bad ’.", "She is functioning well at school, says that she has many friends ... that at her mother ’ s place she also has friends and likes to go there, but that she feels comfortable at home with her father because she gets on well with ... the daughter of her father ’ s new partner ...", "Her mental state is dominated by the emotional burden of her parents ’ conflict, high emotional tensions, the need to be close to her mother (whom she wishes to please by being with her) and, in her relationship with her father, by the conflict of loyalties she has been placed in.", "I am of the opinion that the girl has been drawn into a conflict of loyalties and is very burdened by her parents ’ disagreements and conflict, which has resulted in high emotional pressure, anxiety and hypersensitivity.", "I recommend that the parents undergo family counselling and possibly afterwards also family therapy together with [their daughter].”", "26. On 6 June 2011 the father took the first applicant back to the same psychiatrist who, in so far as relevant, noted:", "“The interview with the girl was conducted alone. [The child] states that she feels good, that she cannot wait for school to end but that she has no difficulties in school. She gets on well with both her father ’ s wife and her mother ’ s partner, and regards her half-brother and half-sisters as real siblings. She is still sad about her parents ’ differences and their inability to adequately communicate [with each other] and their different parenting styles.”", "27. In the course of the above-mentioned custody proceedings (see paragraph 22 above) the court ordered a combined expert opinion from experts in psychiatry and psychology. Accordingly, the applicants and the first applicant ’ s father were examined by forensic experts of this type at the Neuropsychiatric Hospital in Popovača. As part of the preparation of their opinion each expert conducted interviews, inter alia, with the first applicant. In particular, on 1 July and 28 September 2011 the first applicant was interviewed by each expert; on 2 September 2011 she was interviewed only by the expert in psychiatry. The interviews of 1 July 2011 were conducted without the first applicant ’ s parents being present, that of 2 September 2011 in the presence of her mother (the second applicant), and those of 28 September 2011 in the presence of her father.", "28. The relevant part of the record of the interview of 1 July 2011 with the expert in psychiatry reads as follows:", "“[The child] states that she always tells the truth, literally always, and that she feels her worst when she is told that she is a liar like her mum.", "... She very clearly articulates her emotional bond and closeness with her mother and her wish to live with her. ...", "[The child] states that she once attempted to talk with her father about living with her mother, but that the conversation ended quickly with him telling her that there would be no discussion about that and that she would stay with him until she was eighteen ... She says that her father is very strict and that he often shouts at and insults her, which makes her embarrassed and scared. The last time he attacked her, because of the picture [frame], I. [her father ’ s partner] stopped him, and she felt nauseous ...", "She says that she complained to her mother about her father, which was why she went to the police with her. She was particularly struck when the social worker came to the police [station] and talked to her mother; she heard the social worker say that unless they agreed on where [their daughter] was going to live she would be placed in a children ’ s home. (The girl cries for a long time afterwards).", "When asked how it is to live with her father, she states that she would prefer to live with her mother as she is closer to her ...”", "29. The relevant part of the record of the interview of 1 July 2011 with the expert in psychology reads as follows:", "“Dad is so- so. When he is in a good mood, he is good. When he is not [in a good mood] he is not [good]. Once when he forced me to eat I vomited. ’ ...", "‘ Mum is great. Good, fair and does not hit me. She does not threaten me. I do not fight with her that much. I am calmer when I am with my mum, there are not that many fights, I am more relaxed. ’", "... She said that she came to the expert assessment ‘ because of what dad did to me and because I want to live with my mum. I wanted ... He threatened me ... ’ She cried and indistinctly through tears says that her dad smeared food over her face as a joke so she felt ugly and embarrassed. ‘ He hit me once ... He said that he did not but that he only made a [threatening] gesture with his finger ... ’", "After she calmed down we cameng back to the traumatic incident.", "You started crying?", "‘ ... He did this to me (she demonstrates with her hand round her neck). Dad hit me and I always cry so I almost vomited. [He squeezed me] this hard (she is touching her throat and chin) so that I almost vomited ... ’", "‘ [He called me a thief] and I said I was not and then he hit me near the eye (she shows the left temple) ... He asked me if I would do that again (she needs to be interrupted because she is speaking indistinctly while sobbing) ... [The next day] ... I told my mum what he had done to me. She told me that we could go to the police and there I told [them what happened] ... The first lady [the policewoman] there was good. The other [the social worker] pulled my hand while saying that I have to go to my dad. I did not want [to go]. She then told me that if mum gets into a fight with dad she will go to jail and I will go into a children ’ s home (she is sobbing). I had to go with my father. Dad said that we would not talk about that ... ’", "‘ Yesterday he told me that he had never hit me and that he had not done anything to me and that I should tell the truth. But he did hit me. He also told me that when he smeared the food over my face it was a joke, but I felt embarrassed. He also told me that if I mentioned it he would call [the stepmother and stepsister] to say that it was a joke, which would make me look like a liar. I felt embarrassed and ugly then ...", "‘ He threatened to cut off my hair if did not stop biting my nails, and to take my mobile phone away. ’", "‘ Once we were in the car together ... he saw mum with [her new partner] in the next lane. He said that he would put both of them to jail and kill them. He swore at them a lot. He told them many bad things ... The next day or shortly afterwards he said that through his people he would ensure that my mum and me did not see or hear from each other. ’", "‘ I was at a doctor ’ s in Zagreb some time ago. He asked me something about school but he seemed bad to me and I did not want to talk to him and I did not tell the truth. After a month we went to him again. I said I wanted to live with my mum but I did not mention that my dad had hit me. Then I was afraid of my dad, and still am because I knew he would say that he had not hit me ... ’", "‘ Once he hit me when I was little, I do not remember, once ... ’", "‘ He gets upset when I cannot eat something. When I say something [to justify myself] he asks why I defy him. He used to insult me. He called me a cow, stupid goat. He swore at me. He told me to go to hell ... he said that to me many times. He also told me to fuck off many times ... He told me that my mum was a whore (she is crying) ...", "‘ Mum tells me that I cannot do certain things. She does not threaten me. Sometimes she raises her voice, but she does it rarely and then I do not do it any more.”", "30. The relevant part of the record of the interview conducted on 2 September 2011 with the expert in psychiatry reads as follows:", "“This interview was conducted with the girl and the mother together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and serious than during the previous interview ...", "At some point the girl has a strong emotional reaction. The girl states (while crying) that she would like to celebrate her forthcoming birthday at her mum ’ s place ... given that she celebrated her last birthday with her father. The mother did not manage to calm the girl completely or ease her frustration. Instead, she herself looked anxious and frustrated, almost lost.”", "31. The relevant part of the record of the interview of 28 September 2011 with the expert in psychiatry reads as follows:", "“This interview was conducted with the girl and the father together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and deep in her thoughts, and seems restrained ... Asked if she would like to change something, she says that she would like to live with her mum and that she wishes to be able to extend the time she spends with one parent when she wants to stay with that parent longer. While saying that the girl reacts emotionally (she is crying). In the course of it there is no mutual contact between the girl and her father; there is no eye contact, nor is the father trying to calm her. Each [keeps] to themselves, with their eyes fixed forward.”", "32. The relevant part of the record of the interview of 28 September 2011 with the expert in psychology reads as follows:", "“She states in her father ’ s presence: ‘ I would like to live with my mum and decide when visits should take place, to go with my mum or my dad (she is crying). Dad adds: ‘ That would be the best ... ’", "To the direct question whether she asked her dad about it, she replies that she did not. She adds that once she asked her dad [about it] and that he said that she could not go to her mum ...”", "33. On 27 October 2014 the first applicant wrote the following in her school essay:", "“...they all think that they know me but they don ’ t know even a third of me. They judge me by my success in school, but that isn ’ t me. They don ’ t know what is happening, they see me as a happy girl, but I am the opposite of that. I have lived with my dad since I was six years old, and from day one I wanted to go to [live with] my mum ... Dad tells me he won ’ t let me go until I am 18 ... For some time already I have found comfort in cutting myself ... the scars are no longer visible, only when I play volleyball or some other ball game and when my arm turns red, then they are visible.”", "34. Alarmed by the first applicant ’ s admission of self-harm in the school essay, on 22 November 2014 the second applicant took her to the same psychologist who had examined her on 5 March and 22 April 2011. In her observations the psychologist noted the following:", "“[The girl] came accompanied by her mother because the mother had learned of [her daughter ’ s] self-harm, which [the girl] had written about in a school essay ... of 27 October 2014.", "Interview :", "Depressive, anxious at the beginning ... verbally fluent. We are talking in the absence of the mother.", "After the her parents ’ divorce, [the girl] lived with her mother. She says that was the happiest period in her life. She had lived with her father since she was six [years old] ... Relations in the family she described as conflictual, she is afraid of her father. She describes emotional blackmail by her [paternal] grandmother and threats and emotional blackmail by her father, as well as occasional abuse by the father, on which there are medical and police reports. She states that when she was six, she [because of being] manipulated and intimidated by her father, stated during the [forensic] expert examination [in the course of divorce proceedings] that she wanted to live ‘ fifty-fifty ’ [when asked which parent she would like to live with]. She says that her dad told her to say that but that she did not know what it meant. Since the divorce became final she has lived with her father, and has suffered because she has a close and trusting relationship with her mother and her mother ’ s partner. From that time on she has been expressing the wish to live with her mother, but despite all her statements [to that effect] ... the [relevant] authorities pay no heed ... Thanks to her mother ’ s support and understanding she is still functional [that is she manages to live normally] but is unhappy because she cannot live with her mother.", "She says that she is unhappy, that she does not understand why the [relevant] authorities are ignoring her, and that they do not understand how much they are abusing her by not taking appropriate measures.", "In her school essay (which was presented) she mentions that she cut herself on the arms. Her friend helped her to deal with the scars. When asked why she did that, she replies that it was because she felt helpless in enduring the constant pressure in her father ’ s family, constant conflicts, inability to manage her own time, and refusal to let her live with her mother, which would make her happy. Other behaviour mentioned in the essay points to the development of an obsessive-compulsive disorder, fear of the dark, anxious-depressive symptomatology, and emotional control disorder. These are not related to puberty but indicate post-traumatic stress symptomatology, emotional disorders caused by constant frustrations, and child abuse ...", "The girl has for years been burdened by expert examinations, judicial proceedings, interviews at the social welfare centre, and the hope that someone will finally listen to her plea to live with her mother, because since the age of six she has been unhappy because she has to live with her father. She enjoys her mother ’ s and her mother ’ s partner ’ s company, and they are supportive, but she is afraid that she will not be able to live with them for a long time yet. She is unhappy because her father constantly fights with her and does not want her to be happy (as she would be if she lived with her mother). She ‘ hates the situation she is in, where she is forced to live with her dad. She wants to become an advocate and she would never allow her child to suffer as she does because she is not allowed to choose with whom ... to live. ’", "She is introverted, anxious ... Emotional suffering, distrust, depression, fear, guilt, reduced impulse control and problems with facing stress are diagnosed. These symptoms are related to inability to control her desires and to plan and organise. Despite previously established above-average cognitive capacities, a reduced level of openness and a need for new experiences is detected. This is probably because of continuing obstruction of her freedom of action. Despite constant obstructions she is still willing to fight for herself. She is empathic.", "She has very developed defence mechanisms. However, symptoms of post-traumatic stress are also detected.", "Conclusion:", "Elements of strong psychological trauma are diagnosed (post-traumatic stress), which are, according to her statements, the result of frustration caused by the abuse by her father and the authorities who are ignoring her wish to live with her mother, and [which serve] to protect her from suffering and the feeling of helplessness, which she reduces by obsessive-compulsive disorder and by harming herself.”", "C. Criminal proceedings", "1. Criminal proceedings for bodily injury", "35. As already mentioned above (see paragraph 21), on 30 March 2011 the State Attorney indicted the first applicant ’ s father before the Zadar Municipal Court for having committed the criminal offence of bodily injury defined in Article 98 of the Criminal Code (see paragraph 86 below) during the incident of 1 February 2011.", "36. On 19 April 2011 the court issued a penal order ( kazneni nalog ), finding him guilty as charged and imposing a fine of HRK 1,820.", "37. On 4 May 2011 the first applicant ’ s father challenged the penal order, arguing that the basis on which it had been issued was false. The court accordingly set aside the penal order, and the proceedings resumed under the rules of summary criminal procedure.", "38. The hearing scheduled for 7 May 2013 was adjourned because neither the accused nor the summoned witnesses attended it.", "39. At the hearing held on 6 June 2013 the first applicant ’ s father pleaded not guilty and made a statement. He also proposed that several witnesses be heard. The applicants proposed that they themselves be heard.", "40. At the hearing held on 23 July 2013 the court heard the second applicant, one of the police officers who had interviewed the applicants following the incident of 1 February 2011, the first applicant ’ s schoolteacher, and Z.M., a psychologist who had acted as supervising officer during the implementation of the first child protection measure in respect of the supervision of the exercise of parental authority (see paragraph 11 above).", "41. The police officer stated that she had not noticed any visible injuries on the first applicant during the interview with her the day after the incident of 1 February 2011. The first applicant ’ s schoolteacher had not seen any injuries either. He also testified that he had noticed that the first applicant had seemed sad the day after the incident and that he had talked to her about this; the first applicant had told him on that occasion that her father had not hit her. Z.M., who said that he had spoken with the first applicant some time after the incident in the capacity of a private individual and at her father ’ s request, testified that the first applicant had told him that her father had yelled at her and that she had been afraid that he would hit her but that he had not. He also stated that as a school psychologist he knew very well how to recognise signs of abuse in children and that the first applicant had not shown such signs.", "42. On 25 July 2013 the court decided to obtain an expert opinion from a medical expert on the first applicant ’ s injuries.", "43. The hearing scheduled for 18 September 2013 was adjourned because the summoned witnesses failed to attend it.", "44. On 23 September 2013 the expert submitted his opinion, which stated that it was possible, but could not be determined with certainty, that the first applicant ’ s injury had been sustained during the incident of l February 2011. The relevant part of his opinion states as follows:", "“The following injury was established [at the time] by medical examination:", "small haematoma of the left lower eyelid.", "This injury constitutes a bodily injury.", "The injury was inflicted by some hard and blunt object. It was inflicted by a single blow of low intensity.", "The mechanism of the injury could correspond to the course of events as they were described to the doctor by the injured party during the examination (a blow with the hand to the eye).", "However, it is to be noted that the injury was described by the doctor who performed the examination as a haematoma in resorption, thus in [the process of] disappearing, fading. That normally happens after a certain period of time, for example, several days, after an injury. It would not be common for resorption to already be visible the day after the injury.", "It follows from the above that the injury could have been inflicted during the incident in question, but that a causal link cannot be established with certainty.”", "45. At the hearing held on 24 October 2013 the court heard the other police officer who had interviewed the first applicant on 2 February 2011, the social worker who had been present during the interview with the police, and the doctor who had examined her on that day.", "46. The police officer testified that the first applicant did indeed not want to return to her father and that the social worker from the local social welfare centre had indeed told her that they would have to temporarily place her in a children ’ s home if she refused. She also testified that she had not seen any signs of injury on the first applicant. The social worker testified that she had not noticed any signs of injury on the first applicant either. She also stated that while it was true that the first applicant had not wanted to return to her father, she had changed her mind after they spoke, in the course of which she had not mentioned the alternative of sending the first applicant to a children ’ s home. The doctor who examined the first applicant stated that resorption of a haematoma occurred more quickly in children and young people. While he excluded the possibility that the injury could have been caused by crying and rubbing the eyes he did not rule out the possibility that it had been caused by, for example, the first applicant being hit by the ball during her volleyball practice. The applicants ’ representative reiterated their proposal that the first applicant be heard.", "47. In order to decide on that proposal, the court decided to consult the case file concerning the above-mentioned custody proceedings (see paragraph 22 above and 60-81 below). Eventually, the court decided to hear the first applicant via video link on 1 July 2014.", "48. However, that hearing was adjourned because on 30 June 2014 the first applicant ’ s father sought withdrawal of the trial judge; that application was dismissed by the court ’ s president on 3 July 2014.", "49. Since none of the courts in Zadar was equipped with a video link device, the court asked the police authorities to provide it. The police informed the court that it would make available a video-link device on 16 October 2014. Accordingly, the examination of the first applicant was scheduled for that date.", "50. However, on 14 October 2014 the police authorities informed the court that they would not be able to provide the device on 16 October 2014.", "51. According to the Government, the proceedings are still pending, depending on the availability of the video link device.", "2. The applicants ’ attempts to institute criminal proceedings against the first applicant ’ s father for child abuse", "52. Meanwhile, on 27 April 2011 the second applicant lodged a criminal complaint with the State Attorney against the first applicant ’ s father accusing him of the criminal offence of child abuse as defined in Article 213 paragraph 2 of the Criminal Code (see paragraph 86 below). In particular, the second applicant argued that he had physically and psychologically abused the first applicant by: (a) in the period between February 2008 and April 2011, inter alia, swearing at her and calling her names, frequently forcing her to eat food she did not like, and force-feeding her when she refused, threatening to hit her, cut off her long hair and ensure that she never saw or heard from her mother, hitting her with a hairbrush on one occasion, among others, and (b) on 1 February 2011 hitting the first applicant several times in the face and squeezing her throat while verbally abusing her, as a result of which she was later diagnosed by an ophthalmologist with bruising of the eyeballs and eye-socket tissue.", "53. On 20 June 2011 the State Attorney asked the of the Zadar County Court ( Županijski sud u Zadru ) investigating judge to: (a) question the suspect, (b) take statements from his partner and from the second applicant and her partner, and (c) order a combined expert opinion from experts in psychiatry and psychology.", "54. On 29 September 2011 the State Attorney ’ s Office itself ordered a combined expert opinion from certain court experts in psychiatry and psychology. On 4 October 2011 it set that order aside after finding that such a combined expert opinion had already been obtained in the context of the above-mentioned custody proceedings (see paragraph 22 above and paragraphs 60-81 below).", "55. On 16 January 2012 the State Attorney dismissed the second applicant ’ s criminal complaint, finding that there were not sufficient grounds to suspect that the first applicant ’ s father had committed the criminal offence the second applicant had accused him of. In so doing the State Attorney ’ s Office addressed only the part of her complaint concerning the alleged abuse of the first applicant in the period between February 2008 and April 2011, and not the part concerning the incident of 1 February 2011. After examining the statements made to the police by the suspect and his partner, the second applicant and her partner, psychiatrists ’ opinions of 19 February and 7 May 2011, the psychologist ’ s opinion of 5 March 2011, and the combined expert opinion of 29 December 2011 (see paragraphs 16-17, 19-20 and 25 above and paragraphs 69-70 below), the State Attorney gave the following reasons for his decision:", "“Analysing the above facts, it follows that the suspect I.M. ’ s conduct or the conduct of [the second applicant] cannot be regarded as conscious and deliberate emotional or physical child abuse, but rather as inadequate child-rearing practice [ parenting style] and reaction caused by parental conflict over child custody, persistence of long-lasting mutual unresolved conflicts, and limited parenting capacity ...", "In view of the foregoing ... there is no reasonable suspicion that the suspect I.M. committed the criminal offence he is accused of ...”", "56. The first and second applicants then decided to take over the prosecution from the State Attorney as injured parties in the role of (subsidiary) prosecutors. As the Criminal Procedure Act requires that an accused be questioned before being indicted, on 25 January 2012 the applicants asked an investigating judge ( sudac istrage ) of the Zadar County Court to question the first applicant ’ s father.", "57. By a decision of 9 February 2012 the investigating judge dismissed the applicants ’ request, holding that the facts adduced by the applicants did not constitute the criminal offence of child abuse. In so doing he relied on the combined expert opinion of the forensic experts in psychiatry and psychology of 29 December 2011 obtained in the custody proceedings (see paragraphs 69-70 below). The relevant part of that decision reads as follows:", "“... the conduct cannot be regarded as abuse [because the combined expert opinion] did not confirm the diagnosis of child abuse. This is very strongly indicated by the recommendation that changing the child ’ s residence is not advisable. Had that diagnosis been established, the recommendation concerning the child ’ s residence would have certainly been very different.”", "58. On 21 February 2012 a three-member panel of the Zadar County Court dismissed an appeal by the applicants against the decision of the investigating judge. The relevant part of that decision reads as follows:", "“[The child is under supervision] by the [local] social welfare centre. It is therefore evident that if the suspect had behaved in an unseemly or inappropriate manner towards her as a parent that the centre would have reacted. There must have been reasons why the father was awarded care of the child. If there is any change in circumstances that decision could also be changed. According to the expert opinion no elements of abuse were found ...”", "59. On 24 May 2012 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared inadmissible a subsequent constitutional complaint by the applicants. It held that the contested decisions of the Zadar County Court were not susceptible to constitutional review. The Constitutional Court served its decision on the applicants ’ representative on 3 July 2012.", "D. Custody proceedings", "60. Meanwhile, on 30 March 2011 the second applicant brought a civil action in the Zadar Municipal Court against the first applicant ’ s father with a view to altering the custody and contact arrangements ordered in the judgment of the same court of 24 August 2007 (see paragraph 10 above). In particular, she sought custody of the first applicant. At the same time the second applicant asked the court to issue a provisional measure whereby it would temporarily grant her custody of the first applicant pending the final outcome of the principal proceedings.", "61. The court regarded the second applicant ’ s civil action as an application for non-contentious proceedings, as it considered that the rules on non-contentious procedure rather than those on regular civil procedure should apply in such matters. It held hearings on 29 April and 16 May 2011.", "62. The local social welfare centre participated in those proceedings as an intervener sui generis with a view to protecting the first applicant ’ s interests.", "63. At the hearing held on 29 April 2011, the second applicant ’ s representative insisted on the provisional measure being issued. The representative of the local social welfare centre stated that the situation in the first applicant ’ s family was very complex, that her parents had made numerous criminal complaints against each other, and that both parents should be assessed by forensic experts. He also stated that the centre could not at that time make a recommendation as regards the provisional measure requested, because such a recommendation could only be made after completion of the family-assessment procedure by a team of professionals employed at the centre. The second applicant ’ s representative replied that the centre had been aware of the incident of 1 February 2011 but had taken no action to address the situation in the first applicant ’ s family. She therefore insisted on pursuing the application for a provisional measure.", "64. On 12 May 2011 the local social welfare centre submitted its report and recommendation to the court. In the course of their preparation of this report the centre interviewed the second applicant and the first applicant ’ s father on 3 and 4 May 2011, visited their homes and requested an opinion from the first applicant ’ s school. The relevant part of the centre ’ s report reads as follows.", "“The allegations of the [child ’ s parents] who accuse each other of child abuse are impossible to verify, nor can a straightforward conclusion be made only on the basis of interviews with them or on the basis of visits to their families.", "There is an impression that the parents, burdened by their permanently strained relationship and their own need to live with the child, consciously or subconsciously place themselves and their needs first while disregarding the welfare and the needs of the child.", "The child protection measure of supervision of the exercise of parental authority was previously ordered in respect of the parents during the divorce proceedings, from 7 November 2006 to 31 August 2008.", "Given that the already poor communication between the parents has worsened again, which brings about negative tensions which could be harmful for the child ’ s emotional development, and having regard to the fact that they are again facing court proceedings, the centre is in the process of imposing the same measure with a view to protecting the rights and welfare of [the child] through which [the centre] shall monitor the mother ’ s and the father ’ s relationship with the child and [in the implementation of which] they will be advised how to improve communication between them and strengthen their parenting competencies.”", "65. The local social welfare centre recommended a combined expert assessment (psychiatric and psychological) of the first applicant and her parents with a view to establishing their parenting abilities and the possible consequences of their behaviour for her physical and mental development. They added that the first applicant ’ s family situation was complex but that at that moment there was nothing to suggest that it was life-threatening. The relevant part of the local social welfare centre ’ s recommendation reads as follows.", "“After conducting the family-assessment procedure ... it was established that the parents express opposing views as regards abuse and neglect of [their child]. [The mother] accuses the father of child abuse [in that] he is abusing the child physically and emotionally, obstructing her contact with the mother, and using inappropriate child-rearing methods. [The father] accuses [the mother] of neglecting the child ’ s interests by her behaviour [in that] she does not pay child maintenance, does not come to school to consult with teachers or to parents ’ meetings and that the child is being manipulated by the mother ...", "Having regard to the medical documentation at the disposal of the centre, the parties ’ submissions, visits made to [the father ’ s and the mother ’ s] homes and interviews with them, we recommend that the parents and the child undergo a combined [psychiatric and psychological] expert assessment in order to assess their fitness for further care of [their daughter] and the possible consequences of their behaviour for her psycho-physical development.", "It is true that the family situation is complex. However, there is no impression that at present [the child ’ s] life is at risk in her father ’ s family.”", "66. By decisions of 16 May and 6 and 16 June 2011, the court ordered a combined expert opinion from forensic experts in psychiatry and psychology who were to assess (a) the parenting capacities of the second applicant and the first applicant ’ s father, (b) the first applicant ’ s condition, and (c) whether the first applicant had been exposed to abuse and, if so, by whom.", "67. By a decision of 7 June 2011, the court refused to issue a provisional measure sought by the second applicant (see paragraph 60 above). In so deciding the court examined the ophthalmologist ’ s report of 2 February 2011, psychiatrists ’ opinions of 19 February and 7 May 2011, and psychologist ’ s opinions of 5 March and 22 April 2011 (see paragraphs 13 ‑ 14, 19-20, 23 and 25 above). It also consulted the case file of the criminal proceedings in respect of the bodily injury, and examined the report and recommendation of the local social welfare centre of 12 May 2011 (see paragraphs 64-65 above). It found, in view of the conflicting opinions of the psychiatrists, the penal order against the first applicant ’ s father which never became final, and the recommendation of the local social welfare centre, that at that point the allegations that the first applicant had been abused by her father were not plausible enough to justify her immediate temporary removal from his custody. In particular, the court held as follows:", "“... the case was not sufficiently plausibly made that such a measure was necessary to prevent violence or the risk of irreparable harm from materialising, given that at present it remains uncertain and disputed whether [the child] was subjected to abuse by her father or was being manipulated by her mother ...”", "68. On 2 March 2012 the Zadar County Court ( Županijski sud u Zadru ) dismissed an appeal by the second applicant and upheld the first-instance decision.", "69. On 29 December 2011 the forensic experts submitted their opinion (see paragraph 66 above) to the Zadar Municipal Court. In their opinion the experts found that both the second applicant and the first applicant ’ s father had limited parenting abilities and suffered from personality disorders (both of them were emotionally unstable and the first applicant ’ s father was also narcissistic). As regards the first applicant, the experts found that she was emotionally traumatised by her parents ’ separation and their mutual conflict and lack of communication. Instead of shielding her from that conflict, her parents had placed her at the centre of it and manipulated her, sometimes up to the level of emotional abuse. The experts therefore recommended that the first applicant and her parents receive appropriate therapy. They further found that the first applicant was ambivalent towards her father and idealised her mother, whom she viewed as a “friend”, and expressed the wish to live with her. The experts were of the opinion that this desire to be close to her mother could be achieved through (more) extensive contact between the first and the second applicant. If after one year of recommended therapy the first applicant still wished to live with her mother, they recommended that another combined expert opinion be obtained.", "70. The experts did not reply to the court ’ s question whether the first applicant had been exposed to abuse and, if so, by whom (see paragraph 66 above). Their conclusions were (a) that the first applicant should nevertheless continue living with her father for the time being while maintaining extensive contact with her mother; (b) that she and both her parents should undergo treatment and counselling; (c) that the supervision of the exercise of parental authority (the child protection measure imposed by the local social welfare centre, see paragraph 82 below), should be continued; and (d) the first applicant and her parents should be reassessed after a year. In particular, the experts concluded as follows.", "“We do not find [any] contraindications to [the child ’ s living with her father. [Our] recommendation is that, for the time being it is not necessary or desirable to change the child ’ s place of residence, that is to say [the child] should continue living with her father.”", "71. Following a request by the second applicant, by a decision of 27 July 2012, the Zadar Municipal Court appointed G.Š., a lawyer practising in Zadar, to act as a special representative for the first applicant and represent her interests in the proceedings, as required by Article 9, paragraph 1, of the European Convention on the Exercise of Children ’ s Rights (see paragraph 98 below).", "72. Following an appeal by the first applicant ’ s father, on 26 October 2012 the Zadar County Court quashed that decision and remitted the case. It held that the first-instance court had failed to establish whether the interests of the first applicant were indeed in conflict with the interests of (one of) her parents, which was a necessary precondition for the appointment of a special representative.", "73. By a decision of 13 November 2012, the local social welfare centre also appointed G.Š. to act as the first applicant ’ s guardian ad litem pursuant to section 167 of the Family Act (see paragraph 84 below).", "74. The Zadar Municipal Court held further hearings in the case on 6 September and 11 December 2012 and 8 March 2013.", "75. At the last-mentioned hearing the court heard the experts who had prepared the combined expert opinion of 29 December 2011. Those experts stated, inter alia, (a) that their expert opinion had in the meantime become obsolete, because a year and two months had passed since they had prepared it; (b) that they had not replied to the court ’ s question whether the first applicant had been exposed to abuse because it was the task of the judicial authorities and not theirs to make that assessment; and (c) that it would be irrelevant which parent the first applicant should live with if her parents both behaved better.", "76. By a decision of 30 April 2013, the Zadar Municipal Court dismissed the second applicant ’ s application for the custody and contact arrangements stipulated in the judgment of 24 August 2007 to be reversed. The second applicant and the first applicant ’ s guardian ad litem appealed.", "77. On 15 November 2013 the Zadar County Court quashed the first-instance decision for incomplete facts and remitted the case to the lower court. It instructed the first-instance court to (a) inquire whether the first applicant ’ s father ’ s conviction for the criminal offence of bodily injury against her had become final; (b) assess whether the first applicant was able to understand the importance of the proceedings and, if so, allow her to express her opinion and take her testimony; (c) assess the need to appoint a special representative to the first applicant; and (d) obtain an opinion and recommendation from the local social welfare centre.", "78. In the resumed proceedings, on 18 November 2013 the Zadar Municipal Court discontinued the non-contentious proceedings and decided that the proceedings would be continued under the rules of (regular) civil procedure. The court explained that the second applicant ’ s application for reversal of the custody and contact arrangements set forth in its judgment of 24 August 2007 (see paragraph 10 above) would, if agreed, necessarily entail a new decision on the payment of maintenance by the non-custodial parent, which was an issue that could not be decided in non-contentious but only in regular civil proceedings. That did not mean that procedural acts undertaken thus far had lost their validity or become irrelevant.", "79. On 27 February 2014 the second applicant lodged a request for the protection of the right to a hearing within a reasonable time, complaining of the length of the proceedings.", "80. On 9 July 2014 the President of the Zadar Municipal Court dismissed the first applicant ’ s request.", "81. It would appear that the proceedings are currently again pending before the Zadar Municipal Court as the court of first instance.", "E. Proceedings before the local social welfare centre", "82. Following the incident of 1 February 2011, on 22 September 2011 the local social welfare centre again (see paragraph 11 above) issued a decision ordering the child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed for a period of one year and was, by the centre ’ s decision of 1 October 2012, further extended for another six months, until 31 March 2014, when it was discontinued.", "83. In her final report of 30 March 2014 the supervising officer (a psychologist) summarised the results of the measure in the following terms:", "“The aim of the measure was to encourage appropriate parental behaviour with a view to preventing and minimising the negative effects of [their] conflictual relationship on the child ’ s psycho-physical development ... in that sense it was only a question of creating preconditions for adequate communication between the parents, so that currently there is no open conflict (but only because the parents avoid it). In particular, the parents are observing the visiting schedule. They have made concessions to each other from time to time. However, the parents are still in conflict, they still do not communicate, and the majority of their communication goes through the child or through text messages. It is precisely in this way that they are disregarding [her] needs and forcing [her] to deal with something with which she should not be dealing at her age (or at any other age for that matter). Both parents think they are doing what is best for their child, while forgetting that their conflict is the major obstacle to the normal psycho-physical development and functioning of their child ... [The mother] thinks that the child should be with her and that the wish of the child, who also expresses the wish to be with her, should be respected. [The father] thinks that that his role is to protect the child from the mother ’ s negative influence and ensure stability for her. Those views are O.K., but the only question is how much each of them negatively affects the child by fighting for their own position? For a compromise people need to be ready to partially abandon their position, but they are not ready to do so. In my view, both parents have a good relationship with the child; they [both] try to spend quality time with her. They differ to some extent in their methods and parenting styles ([the mother ’ s] is permissive and directed at [developing] a friendly relationship with her daughter, which may also be a strategy for ‘ winning ’ the child, whereas [the father] is more impulsive, with a tendency to give in, and is oriented towards the traditional role of the father, which would not be a problem if the two parents would cooperate ... Neither of them disputes that the role of the other parent is also important for the child, but they both find it important that the child lives with them, believing that in that way they would diminish the harmful influence ‘ the other parent has on the child ’. This means that the main problem is unresolved parental conflict, and the parents should probably work on that outside the [social welfare] centre. When they are able to talk to each other, and when they realise why and which of their actions are harmful for [the child] (and stem from their personal conflict) then they will be able to function better. In that regard I think that the supervision measure cannot provide a better solution to the problems they have.”", "II. RIGHTS AND DUTIES BETWEEN PARENTS AND CHILDREN", "1. Rights and duties of the child", "Section 88", "“Parents and other family members must not subject the child to degrading treatment, psychological or physical violence or abuse.”", "Section 89", "“(1) The child is entitled to seek protection of his or her rights before the relevant authorities, which must inform the social welfare centre thereof.", "(2) The child is entitled to a special guardian in cases specified by this Act.", "(3) The special guardian shall be appointed by the social welfare centre in cases where another authority is deciding on the infringement of the child ’ s right, and by the court when the social welfare centre is competent to decide on a right of the child.", "(4) The special guardian shall submit a report on the representation of the child at the request of, and within the time-limit set forth by, the authority that appointed him or her.", "(5) In proceedings involving decisions on the child ’ s right or interest the child is entitled to be informed in an appropriate way of the relevant circumstances of the case, obtain advice and express his or her views, and to be informed of the possible consequences of [those] views. The [child ’ s] views shall be given due weight in accordance with his or her age and maturity.”", "2. Parental responsibility", "Section 102", "“The court shall, upon application by the parent, the child or the social welfare centre, issue a new decision on custody and access rights, and if need be on other elements of parental responsibility, if substantially changed circumstances so require.”", "3. Measures for the protection of the rights and welfare of the child", "Section 109", "“(1) The social welfare centre shall order supervision of the exercise of parental authority when the errors and omissions are various and frequent or when the parents need special assistance in bringing up their child.", "(2) ...", "(3) The programme of supervision may entail referring the child to a children ’ s home for a half day or for a full day, or referring the parents and the child to medical and other institutions for treatment and other professional assistance.", "(4) The supervision shall be ordered for a minimum period of six months ...”", "Fifth part", "GUARDIANSHIP", "III. GUARDIANSHIP IN SPECIAL CASES", "Section 167", "“In order to protect certain personal and pecuniary rights and interests the social welfare centre shall appoint a special guardian ... ...", "6. ... in other cases where the interests of the child conflict with those of the parents.”", "Eighth part", "JUDICIAL PROCEEDINGS", "I. COMMON PROVISIONS", "Section 263", "“(1) The provisions of this part of the Act determine the rules by which the courts shall proceed in special civil [contentious] and non-contentious proceedings and special enforcement and security proceedings when deciding in matrimonial, family and other matters regulated by this Act.", "(2) The proceedings referred to in paragraph 1 of this section shall be urgent.”", "Section 269(2)", "“In order to pursue his or her rights or interests, the court shall in [personal] status matters, in accordance with his or her age and maturity and [having regard to the child ’ s] welfare, allow the child to express his or her views before the social welfare centre or before the court.”", "II. SPECIAL CIVIL PROCEEDINGS", "3. Proceedings concerning custody, parental responsibility or child protection measures", "Section 295", "“(1) Before reaching a decision on custody or parental responsibility, the court shall obtain a report and recommendation of a social welfare centre.", "(2) The social welfare centre must within thirty days submit to the court the report and recommendation referred to in paragraph 1 of this section.", "(3) ...”", "2. Relevant case-law", "85. In its judgment no. Gž-994/11-3 of 17 March 2011 the Bjelovar County Court held as follows:", "“When the child has gone to live of his or her own free will with the other parent (the father), who was equally as fit to take care of the child as the parent (the mother) with whom the child had lived thus far, and the child is, having regard to his or her age and maturity, capable of forming his or her own opinion and expressing views on issues that concern him or her, then these circumstances may justify a reversal of an earlier custody decision.”", "B. The Criminal Code", "1. Relevant provisions", "86. The relevant provision of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments), which was in force from 1 January 1998 to 31 December 2012, reads as follows:", "Article 8", "“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney ’ s Office in the interest of the Republic of Croatia and its citizens.", "(2) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private bill of indictment or that the State Attorney ’ s Office should institute criminal proceedings at the initiative of [a victim].”", "CHAPTER TEN (X)", "CRIMINAL OFFENCES AGAINST LIFE AND LIMB", "Bodily injury", "Article 98", "“Whoever inflicts bodily injury on another person or impairs another person ’ s health shall be fined or punished by imprisonment not exceeding one year.”", "Instituting criminal proceedings for criminal offences of bodily injury", "Article 102", "“Criminal proceedings for the offence of bodily injury (Article 98), unless committed against a child or a minor, shall be instituted upon a private bill of indictment.”", "CHAPTER SIXTEEN (XVI)", "CRIMINAL OFFENCES AGAINST MARRIAGE, THE FAMILY AND JUVENILES", "Neglect or abuse of a child or a minor", "Article 213", "“(1) A parent, adoptive parent, guardian or other individual who grossly neglects their duties to care for or raise a child or minor shall be punished by imprisonment of six months to five years.", "(2) The penalty referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive parent, guardian or other individual who abuses a child or minor, forces [the child] to perform work unsuitable for his or her age, or to work excessively, or to beg, or out of greed induces [the child] to behave in a manner harmful to his or her development, or by [engaging in] dangerous activities or in some other way puts [the child] in danger.”", "Domestic violence", "Article 215a", "“A family member who by violence, abuse or particularly offensive behaviour places another member of the family in a humiliating position shall be punished by imprisonment of six months to five years.”", "2. Legal commentary", "87. According to Croatian legal scholars, abuse, as a constitutive element of a number of criminal offences, including the offence of child abuse, is defined as “deliberate infliction of physical or mental discomfort or pain of significant intensity” (see Željko Horvatić (ed.), Rječnik kaznenog prava [The Dictionary of Criminal Law], Masmedia, Zagreb, 2002, p. 664) or “... deliberate infliction of mental or physical discomfort of significant degree. What constitutes a ‘ significant degree ’ of physical or mental discomfort is to be determined on a case-by-case basis. In making that assessment the court will often require an opinion from an expert in psychiatry” (see Ana Garačić, Kazneni zakon u sudskoj praksi – Posebni dio [Criminal Code in Judicial Practice – Special Part], Organizator, Zagreb, 2009, pp. 375-376).", "88. As regards the criminal offence of domestic violence Croatian legal scholars have expressed the following view (see op. cit., pp. 285-286):", "“[The perpetrator ’ s conduct] is defined alternatively as violence, abuse or particularly offensive behaviour. Violence is to be understood in a wider sense [that is] as an application of physical force against the physical integrity of another family member, psychological coercion, or serious psychological maltreatment, but also as coercion directed at objects if the family member perceives this as physical coercion. Violence is normally not an isolated and single incident, but entails a number of instances and is characterised by continuous activity. Abuse is very deliberate infliction of physical or mental pain of great intensity, short of bodily injury. Abuse within a family may be physical, psychological or emotional, or sexual ... Particularly offensive behaviour entails the perpetrator ’ s manifest contempt for, and ruthlessness and arrogance against, another family member ... For the offence to be committed it is necessary for the family member to be put into a humiliating position as a result of the perpetrator ’ s conduct. This is a position which offends honour and reputation, human dignity, and self-esteem. Putting a family member in a humiliating position is regarded as the objective element of the crime ... which does not have to be accompanied by the perpetrator ’ s mens rea. However, the intent of the perpetrator must correspond to his or her conduct ...”", "C. Protection against Domestic Violence Act", "89. The Protection against Domestic Violence Act ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 137/09 with subsequent amendments), inter alia, defines the minor offence of domestic violence and provides sanctions which may be imposed to those convicted of that offence.", "90. Section 20 provides that where the minor offence of domestic violence has been committed against a child, the court may impose either a fine of at least HRK 7,000 or a prison sentence of at least forty-five days. In cases of recidivism the court may impose a fine of at least HRK 15,000 or a prison sentence of at least sixty days. The maximum fine of HRK 50,000 and the maximum prison sentence of ninety days are prescribed by the Minor Offences Act ( Prekršajni zakon, Official Gazette no. 107/07 with subsequent amendments).", "91. Sections 11-19 of the Protection against Domestic Violence Act provide for various protective measures the court may impose in addition to, or independently of, the penalties listed in section 20, even before the institution of minor offences proceedings. Section 12 provides for the protective measure of compulsory psycho-social treatment.", "D. The Courts Act 2013", "92. Under the Courts Act 2013 ( Zakon o sudovima, Official Gazette no. 28/13), which entered into force on 14 March 2013, a party to pending judicial proceedings who considers that those proceedings have been unduly protracted has the right to lodge an acceleratory remedy, namely a “request for the protection of the right to a hearing within a reasonable time” and to request that the president of the same court before which those proceedings are pending expedite them by setting a time-limit of a maximum of six months within which the judge sitting in the case must render a decision. A party whose request is not decided upon within sixty days or whose request is dismissed may lodge an appeal with the president of the immediately higher court.", "93. In addition, a further, combined compensatory-acceleratory remedy, namely a “request for payment of appropriate compensation”, is also available, but only in cases where the judge sitting in the case did not comply with the time-limit for deciding the case specified by the court president when granting the request for the acceleratory remedy.", "IV. Child-friendly justice before, during and after judicial proceedings", "...", "3. Right to be heard and to express views", "44. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Means used for this purpose should be adapted to the child ’ s level of understanding and ability to communicate and take into account the circumstances of the case. Children should be consulted on the manner in which they wish to be heard.", "45. Due weight should be given to the child ’ s views and opinion in accordance with his or her age and maturity.", "46. The right to be heard is a right of the child, not a duty on the child.", "47. A child should not be precluded from being heard solely on the basis of age. Whenever a child takes the initiative to be heard in a case that affects him or her, the judge should not, unless it is in the child ’ s best interests, refuse to hear the child and should listen to his or her views and opinion on matters concerning him or her in the case.", "48. Children should be provided with all necessary information on how effectively to use the right to be heard. However, it should be explained to them that their right to be heard and to have their views taken into consideration may not necessarily determine the final decision.", "49. Judgments and court rulings affecting children should be duly reasoned and explained to them in language that children can understand, particularly those decisions in which the child ’ s views and opinions have not been followed.”", "E. Council of Europe Recommendation on integrated national strategies for the protection of children from violence", "103. The Recommendation CM/Rec(2009)10 of the Committee of Ministers to member States on integrated national strategies for the protection of children from violence, adopted by the Committee of Ministers of the Council of Europe on 18 November 2009, emphasises that “children ’ s fragility and vulnerability and their dependence on adults for the growth and development call for greater investment in the prevention of violence and protection of children on the part of families, society and the State”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Family Act", "1. Relevant provisions", "84. The relevant provisions of the Family Act of 2003 ( Obiteljski zakon, Official Gazette no. 163/03 with subsequent amendments – hereafter “the Family Act 2003”), which was in force between 22 July 2003 and 1 September 2014, read as follows:", "Third part", "PARENTS AND CHILDREN", "III. RELEVANT INTERNATIONAL LAW", "A. Convention on the Rights of the Child", "1. Relevant provisions", "94. The relevant provisions of the Convention on the Rights of the Child of 2 September 1990, which came into force in respect of Croatia on 12 October 1992, read as follows.", "Article 12", "“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.", "2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”", "Article 19", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "95. The Preamble of the Optional Protocol of 19 December 2011 to the Convention on the Rights of the Child on a communications procedure, which Protocol entered into force on 14 April 2014 but has not yet been ratified by Croatia, reaffirms “the status of the child as a subject of rights and as a human being with dignity and with evolving capacities”.", "2. General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia)", "96. The relevant part of General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia ) adopted by the Committee on the Rights of the Child at its forty-second session held from 15 May to 2 June 2006, reads as follows:", "“40. The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by their parents that come to light should lead to prosecution of parents. The de minimis principle – that the law does not concern itself with trivial matters – ensures that minor assaults between adults only come to court in very exceptional circumstances; the same will be true of minor assaults on children. States need to develop effective reporting and referral mechanisms. While all reports of violence against children should be appropriately investigated and their protection from significant harm assured, the aim should be to stop parents from using violent or other cruel or degrading punishments through supportive and educational, not punitive, interventions.", "41. Children ’ s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children ’ s best interests. It is the Committee ’ s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child. The affected child ’ s views should be given due weight, according to his or her age and maturity.", "42. Advice and training for all those involved in child protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law. Guidance should also emphasize that article 9 of the Convention requires that any separation of the child from his or her parents must be deemed necessary in the best interests of the child and be subject to judicial review, in accordance with applicable law and procedures, with all interested parties, including the child, represented. Where separation is deemed to be justified, alternatives to placement of the child outside the family should be considered, including removal of the perpetrator, suspended sentencing, and so on.”", "3. General Comment No. 12 (2009) on the right of the child to be heard (Article 12)", "97. The relevant part of General Comment No. 12 (2009) on the right of the child to be heard, adopted by the Committee on the Rights of the Child at its fifty-first session held from 25 May to 12 June 2009, reads as follows.", "“ A. Legal analysis", "15. Article 12 of the Convention establishes the right of every child to freely express her or his views, in all matters affecting her or him, and the subsequent right for those views to be given due weight, according to the child ’ s age and maturity. This right imposes a clear legal obligation on States parties to recognize this right and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child.", "...", "1. Literal analysis of article 12", "(a) Paragraph 1 of article 12", "(i) ’ Shall assure ’", "19. Article 12, paragraph 1, provides that States parties ‘ shall assure ’ the right of the child to freely express her or his views. ‘ Shall assure ’ is a legal term of special strength, which leaves no leeway for State parties ’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children. This obligation contains two elements in order to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views.", "(ii) ’ Capable of forming his or her own views ’", "20. States parties shall assure the right to be heard to every child ‘ capable of forming his or her own views ’. This phrase should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity.", "21. The Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child ’ s right to be heard in all matters affecting her or him. ...", "(iv) ’ In all matters affecting the child ’", "26. States parties must assure that the child is able to express her or his views ‘ in all matters affecting ’ her or him. This represents a second qualification of this right: the child must be heard if the matter under discussion affects the child. This basic condition has to be respected and understood broadly.", "...", "v) “Being given due weight in accordance with the age and maturity of the child”", "28. The views of the child must be “given due weight in accordance with the age and maturity of the child”. This clause refers to the capacity of the child, which has to be assessed in order to give due weight to her or his views, or to communicate to the child the way in which those views have influenced the outcome of the process. Article 12 stipulates that simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views.", "30. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child. Maturity is difficult to define; in the context of article 12, it is the capacity of a child to express her or his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child.", "31. Consideration needs to be given to the notion of the evolving capacities of the child, and direction and guidance from parents ....", "(b) Paragraph 2 of article 12", "(i) The right ‘ to be heard in any judicial and administrative proceedings affecting the child ’", "32. Article 12, paragraph 2, specifies that opportunities to be heard have to be provided in particular ‘ in any judicial and administrative proceedings affecting the child ’. The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, ...", "...", "(ii) ’ Either directly, or through a representative or an appropriate body ’", "35. After the child has decided to be heard, he or she will have to decide how to be heard: ‘ either directly, or through a representative or appropriate body ’. The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings.", "36. The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child ’ s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined by the child (or by the appropriate authority as necessary) according to her or his particular situation. Representatives must have sufficient knowledge and understanding of the various aspects of the decision-making process and experience in working with children.", "37. The representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons (parent(s)), institutions or bodies (e.g. residential home, administration or society). Codes of conduct should be developed for representatives who are appointed to represent the child ’ s views.", "...", "2. Steps for the implementation of the child ’ s right to be heard", "40. Implementation of the two paragraphs of article 12 requires five steps to be taken in order to effectively realize the right of the child to be heard whenever a matter affects a child or when the child is invited to give her or his views in a formal proceeding as well as in other settings. These requirements have to be applied in a way which is appropriate for the given context.", "...", "(c) Assessment of the capacity of the child", "44. The child ’ s views must be given due weight, when a case-by-case analysis indicates that the child is capable of forming her or his own views. If the child is capable of forming her or his own views in a reasonable and independent manner, the decision maker must consider the views of the child as a significant factor in the settlement of the issue. Good practice for assessing the capacity of the child has to be developed.", "(d) Information about the weight given to the views of the child (the feedback)", "45. Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously. The information may prompt the child to insist, agree or make another proposal or, in the case of a judicial or administrative procedure, file an appeal or a complaint.", "...", "3. Obligations of States parties", "...", "(b) Specific obligations with regard to judicial and administrative proceedings", "(i) The child ’ s right to be heard in civil judicial proceedings", "50. The main issues which require that the child be heard are detailed below:", "Divorce and separation", "51. In cases of separation and divorce, the children of the relationship are unequivocally affected by decisions of the courts. Issues of maintenance for the child as well as custody and access are determined by the judge either at trial or through court-directed mediation. Many jurisdictions have included in their laws, with respect to the dissolution of a relationship, a provision that the judge must give paramount consideration to the ‘ best interests of the child ’.", "...", "B. The right to be heard and the links with other provisions of the Convention", "68. Article 12, as a general principle, is linked to the other general principles of the Convention, such as article 2 (the right to non-discrimination), article 6 (the right to life, survival and development) and, in particular, is interdependent with article 3 (primary consideration of the best interests of the child). The article is also closely linked with the articles related to civil rights and freedoms, particularly article 13 (the right to freedom of expression) and article 17 (the right to information). Furthermore, article 12 is connected to all other articles of the Convention, which cannot be fully implemented if the child is not respected as a subject with her or his own views on the rights enshrined in the respective articles and their implementation.", "...", "1. Articles 12 and 3", "70. The purpose of article 3 is to ensure that in all actions undertaken concerning children, by a public or private welfare institution, courts, administrative authorities or legislative bodies, the best interests of the child are a primary consideration. It means that every action taken on behalf of the child has to respect the best interests of the child. The best interests of the child is similar to a procedural right that obliges States parties to introduce steps into the action process to ensure that the best interests of the child are taken into consideration. The Convention obliges States parties to assure that those responsible for these actions hear the child as stipulated in article 12. This step is mandatory.", "71. The best interests of the child, established in consultation with the child, is not the only factor to be considered in the actions of institutions, authorities and administration. It is, however, of crucial importance, as are the views of the child.", "...", "74. There is no tension between articles 3 and 12, only a complementary role of the two general principles: one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives.", "...", "E. Conclusions", "135. Investment in the realization of the child ’ s right to be heard in all matters of concern to her or him and for her or his views to be given due consideration, is a clear and immediate legal obligation of States parties under the Convention. It is the right of every child without any discrimination. Achieving meaningful opportunities for the implementation of article 12 will necessitate dismantling the legal, political, economic, social and cultural barriers that currently impede children ’ s opportunity to be heard and their access to participation in all matters affecting them. It requires a preparedness to challenge assumptions about children ’ s capacities, and to encourage the development of environments in which children can build and demonstrate capacities. It also requires a commitment to resources and training.", "136. Fulfilling these obligations will present a challenge for States parties. But it is an attainable goal if the strategies outlined in this general comment are systematically implemented and a culture of respect for children and their views is built.”", "B. European Convention on the Exercise of Children ’ s Rights", "1. Relevant provisions", "98. The relevant provisions of the European Convention on the Exercise of Children ’ s Rights of 25 January 1996, which came into force in respect of Croatia on 1 August 2010, read as follows.", "“ Chapter I – Scope and object of the Convention and definitions", "Article 1 – Scope and object of the Convention", "1. This Convention shall apply to children who have not reached the age of 18 years.", "2. The object of the present Convention is, in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority.", "3. For the purposes of this Convention proceedings before a judicial authority affecting children are family proceedings, in particular those involving the exercise of parental responsibilities such as residence and access to children.", "4. Every State shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, specify at least three categories of family cases before a judicial authority to which this Convention is to apply.", "5. Any Party may, by further declaration, specify additional categories of family cases to which this Convention is to apply or provide information concerning the application of Article 5, paragraph 2 of Article 9, paragraph 2 of Article 10 and Article 11.", "6. Nothing in this Convention shall prevent Parties from applying rules more favourable to the promotion and the exercise of children ’ s rights.", "...", "Chapter II – Procedural measures to promote the exercise of children ’ s rights", "A. Procedural rights of a child", "Article 3 – Right to be informed and to express his or her views in proceedings", "A child considered by internal law as having sufficient understanding, in the case of proceedings before a judicial authority affecting him or her, shall be granted, and shall be entitled to request, the following rights:", "a to receive all relevant information;", "b to be consulted and express his or her views;", "c to be informed of the possible consequences of compliance with these views and the possible consequences of any decision.", "...", "B. Role of judicial authorities", "Article 6 – Decision-making process", "In proceedings affecting a child, the judicial authority, before taking a decision, shall:", "a consider whether it has sufficient information at its disposal in order to take a decision in the best interests of the child and, where necessary, it shall obtain further information, in particular from the holders of parental responsibilities;", "b in a case where the child is considered by internal law as having sufficient understanding:", "– ensure that the child has received all relevant information;", "– consult the child in person in appropriate cases, if necessary privately, itself or through other persons or bodies, in a manner appropriate to his or her understanding, unless this would be manifestly contrary to the best interests of the child;", "– allow the child to express his or her views;", "c give due weight to the views expressed by the child.", "...", "Article 9 – Appointment of a representative", "1. In proceedings affecting a child where, by internal law, the holders of parental responsibilities are precluded from representing the child as a result of a conflict of interest between them and the child, the judicial authority shall have the power to appoint a special representative for the child in those proceedings.", "2. Parties shall consider providing that, in proceedings affecting a child, the judicial authority shall have the power to appoint a separate representative, in appropriate cases a lawyer, to represent the child.", "C. Role of representatives", "Article 10", "1. In the case of proceedings before a judicial authority affecting a child the representative shall, unless this would be manifestly contrary to the best interests of the child:", "a provide all relevant information to the child, if the child is considered by internal law as having sufficient understanding;", "b provide explanations to the child if the child is considered by internal law as having sufficient understanding, concerning the possible consequences of compliance with his or her views and the possible consequences of any action by the representative;", "c determine the views of the child and present these views to the judicial authority.", "2. Parties shall consider extending the provisions of paragraph 1 to the holders of parental responsibilities.”", "2. Croatia ’ s declaration under Article 1 § 4 of the European Convention on the Exercise of Children ’ s Rights", "99. On 6 April 2010, when depositing the instrument of ratification of the above Convention with the Secretary General of the Council of Europe, the Croatian Minister for Foreign Affairs made the following declarations (contained in the instrument of ratification):", "“In accordance with Article 1, paragraph 4, of the Convention, the Republic of Croatia designates the following categories of family cases to which this Convention is to apply before its judicial authorities:", "– proceedings for deciding on parental care during the divorce of parents;", "– proceedings for the exercise of parental care;", "– measures for the protection of personal rights and interests of a child;", "– proceedings for adoption; and", "– proceedings concerning guardianship of minors.”", "C. Council of Europe Convention on preventing and combating violence against women and domestic violence", "100. The relevant Article of the Council of Europe Convention on preventing and combating violence against women and domestic violence of 25 January 1996, which entered into force on 1 August 2014 but has not yet been ratified by Croatia, read as follows:", "Article 3 – Definitions", "“For the purpose of this Convention:", "a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life;", "b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim;", "...”", "Article 31 – Custody, visitation rights and safety", "“1 Parties shall take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of this Convention are taken into account.", "2 Parties shall take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardise the rights and safety of the victim or children.”", "Article 45 – Sanctions and measures", "“1 Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include, where appropriate, sentences involving the deprivation of liberty which can give rise to extradition.", "2 Parties may adopt other measures in relation to perpetrators, such as:", "– monitoring or supervision of convicted persons;", "– withdrawal of parental rights, if the best interests of the child, which may include the safety of the victim, cannot be guaranteed in any other way.”", "Article 46 – Aggravating circumstances", "“Parties shall take the necessary legislative or other measures to ensure that the following circumstances, insofar as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with this Convention:", "...", "d the offence was committed against or in the presence of a child;", "...”", "101. The relevant part of the Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence reads as follows:", "Article 31 – Custody, visiting rights and safety", "“175. This provision aims at ensuring that judicial authorities do not issue contact orders without taking into account incidents of violence covered by the scope of this Convention. It concerns judicial orders governing the contact between children and their parents and other persons having family ties with children. In addition to other factors, incidents of violence against the non-abusive carer as much as against the child itself must be taken into account when decisions on custody and the extent of visitation rights or contact are taken.", "176. Paragraph 2 addresses the complex issue of guaranteeing the rights and safety of victims and witnesses while taking into account the parental rights of the perpetrator. In particular in cases of domestic violence, issues regarding common children are often the only ties that remain between victim and perpetrator. For many victims and their children, complying with contact orders can present a serious safety risk because it often means meeting the perpetrator face-to-face. Hence, this paragraph lays out the obligation to ensure that victims and their children remain safe from any further harm.”", "D. Council of Europe Guidelines on child-friendly justice", "102. The relevant part of the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers ’ Deputies, read as follows.", "“ III. Fundamental principles", "1. The guidelines build on the existing principles enshrined in the instruments referred to in the preamble as well as the case law of the European Court of Human Rights.", "2. These principles are further developed in the following sections and should apply to all chapters of these guidelines.", "A. Participation", "1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children ’ s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful.", "2. Children should be considered and treated as full bearers of rights and should be entitled to exercise all their rights in a manner that takes into account their capacity to form their own views as well as the circumstances of the case.", "...", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 3 AND/OR ARTICLE 8 OF THE CONVENTION", "104. The applicants complained that the State authorities had not complied with their procedural positive obligation under Article 3 and/or Article 8 of the Convention in that they had refused to prosecute the first applicant ’ s father for the criminal offence of child abuse he had committed against her. They also complained that the domestic authorities had not discharged their positive obligation under either of those Articles in that they had failed to remove the first applicant from her father ’ s care and thus prevent him from committing further violent acts against her. Those Articles read as follows:", "Article 3 (prohibition of torture)", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 (right to respect for private and family life)", "“1. Everyone has the right to respect for his private and family life ...”", "105. The Government contested those arguments.", "A. Admissibility", "1. The parties ’ submissions", "(a) The Government", "106. The Government argued that in so far as the applicants complained of a breach of the authorities ’ procedural positive obligation under Article 3 of the Convention to investigate the incident of 1 February 2011, their complaints were inadmissible for non-compliance with the six-month rule. They first explained that the incident in question was to be regarded as a one-off act which had not produced any permanent consequences or a continuous situation. The Government further referred to the Court ’ s case-law, according to which in the absence of an effective remedy the six-month time-limit begins to run from the moment the event complained of occurs. That was precisely the situation in the present case, where the applicants complained that the response by the domestic authorities to the incident of 1 February 2011 had not been appropriate.", "107. In any event, since the father had been punished for the incident in question by a penal order against the first applicant ’ s father on 19 April 2011, the six-month time-limit had started to run at the latest on that date, whereas the applicants had not lodged their application with the Court until 3 January 2013.", "108. To the extent that the applicants complained of breaches of the authorities ’ positive obligations under Articles 3 and/or 8 of the Convention in the custody proceedings, the Government submitted that the applicants had failed to exhaust domestic remedies. In particular, the Government argued that those complaints were premature because the custody proceedings were still pending (see paragraphs 60-81 above), and that the applicants had not (fully) availed themselves of domestic remedies for the excessive length of proceedings (see paragraphs 79-80 and 92-93 above). The Government therefore invited the Court to declare those complaints inadmissible for non-exhaustion of domestic remedies, both in respect of the length of the proceedings and in respect of the other alleged breaches of positive obligations in those proceedings.", "(b) The applicants", "109. As regards the alleged non-compliance with the six-month rule (see paragraphs 106-07 above), the applicants explained that their complaint that the domestic authorities had failed to comply with their procedural positive obligation was primarily directed against those authorities ’ refusal to prosecute the first applicant ’ s father for the criminal offence of child abuse. In that respect they had exhausted domestic remedies by taking over the prosecution as injured parties in the role of (subsidiary) prosecutors, and had lodged their application with the Court within six months of the last domestic decision rendered in that regard.", "110. The applicants did not reply to the Government ’ s argument concerning non-exhaustion of domestic remedies (see paragraph 108 above) because it had been raised for the first time on 26 February 2014 in the Government ’ s comments on the applicants ’ observations of 9 December 2013.", "2. The Court ’ s assessment", "(a) Compliance with the six-month rule", "111. As regards the Government ’ s objection regarding the alleged non-compliance by the applicants with the six-month rule (see paragraphs 106-107 above), the Court first reiterates that the procedural positive obligation under Article 3 of the Convention requires States to conduct effective official investigations capable, inter alia, of leading to the punishment of those responsible (see paragraph 136 below). That being so, the Court finds it sufficient to note that the penal order of 19 April 2011, whereby the first applicant ’ s father was sentenced to a fine, was set aside and that the criminal proceedings against him are still pending (see paragraphs 37 and 51 above). Accordingly, the six-month time-limit has not even started to run yet, much less expired, as the Government suggested. It follows that the Government ’ s inadmissibility objection based on non-compliance with the six-month rule must be dismissed.", "(b) Non-exhaustion of domestic remedies", "112. As to the Government ’ s argument that the applicants failed to pursue the domestic length-of-proceedings remedies, the Court notes that it is not the length of the proceedings which is at issue in the present case. Rather, the question is whether in the circumstances of the case seen as a whole the State could be said to have complied with certain positive obligations under Article 3 and/or 8 of the Convention (see Remetin v. Croatia, no. 29525/10, § 75, 11 December 2012 ).", "113. It follows that the Government ’ s objection as regards non ‑ exhaustion of domestic remedies must be rejected.", "114. To the extent that the Government ’ s non-exhaustion objection rests on the fact that the custody proceedings are still pending and that therefore the applicants ’ complaints under Article 3 and/or 8 of the Convention concerning the alleged breach of the positive obligation to prevent future violent acts against the first applicant are premature, the Court considers that this argument concerns only the merits of those complaints, rather than their admissibility. It will therefore be examined accordingly (see paragraphs 153 ‑ 62 below).", "3. Conclusion as to the admissibility", "115. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The Government", "116. The Government emphasised that the documents in the case drawn up by various experts in psychiatry and psychology suggested that the first applicant was traumatised by the highly conflictual relationship of her separated parents. In particular, those experts had regarded her as a child drawn into a conflict of loyalties and thus torn between her parents, both of whom she loved.", "117. Not even the diagnosis of child abuse made by a psychiatrist in the opinion of 19 February 2011 (see paragraph 19 above), on which the applicants had relied heavily in support of their allegations that the first applicant had been abused by her father, suggested otherwise. Namely, the code (T74.8) under the International Classification of Diseases the psychiatrist had used on that occasion merely indicated some form of maltreatment, without specifying whether it was physical or psychological (as such abuses were classified under different codes), or whether it had been perpetrated solely by her father.", "118. As regards the alleged breach of the procedural obligation under Article 3 or 8 of the Convention, the Government argued that the domestic authorities ’ reaction to the incident of 1 February 2011 had been prompt, without any unexplained delays or obstructions, and detailed. In particular, the police had reacted immediately after the applicants had reported the incident, and had conducted interviews with all the participants and other individuals who could have had knowledge of it, and of events that had preceded it (see paragraphs 13, 15-17, 21 and 24 above).", "119. As regards the alleged breach of positive obligations under Article 3 or 8 of the Convention, the Government submitted that the judicial authorities had decided promptly on the second applicant ’ s request for a provisional measure and, on the basis of an opinion given by the local social welfare centre, refused her request for an interim custody order (see paragraph 67 above). That decision had been made only after a careful examination of all the evidence presented and after establishment of all the relevant facts, with the best interests of the first applicant as the primary consideration. The first-instance court had given sufficient reasons for its decision, which thus could not be regarded as arbitrary. The Government averred in that connection that since they had heard the parties directly and examined evidence the domestic courts were in a better position than the Court to assess the evidence, establish the relevant facts, and make a decision.", "120. In addition, while the custody proceedings were pending before the first-instance court, the social authorities had imposed the child protection measure of supervision of the exercise of parental authority (see paragraph 82 above), with a view to monitoring the situation in the first applicant ’ s family and reacting promptly if changed circumstances so required.", "121. Furthermore, in the course of the first-instance custody proceedings an extensive psychiatric and psychological assessment had been made by forensic experts who, together with a number of other witnesses, had been examined by the first-instance court (paragraphs 66, 69 ‑ 70 and 75), with a view to establishing whether the change in the first applicant ’ s family situation justified a reversal of the custody order.", "122. In particular, those experts had suggested that the behaviour of the first applicant ’ s mother (the second applicant) was unpredictable, and that she placed her needs before those of her child. It was therefore better in the given circumstances for the first applicant to continue to live with her father and his family, where she had been living since early childhood, and whose home was a better and safer environment for her development. Therefore, not only was it unnecessary to separate the first applicant from her father, but it would be counterproductive. The experts had also found that what was detrimental to the first applicant ’ s development was the conflict between her parents. All the experts and social welfare professionals had warned both parents about it, and it was the principal reason for imposing the child protection measure of supervision of the exercise of parental authority.", "123. In view of the foregoing, it could not be argued that while the custody proceedings were pending the first applicant was at risk of being abused.", "124. As regards the applicants ’ objections that the first applicant had not been heard in the custody proceedings, nor had a special representative (see paragraph 129 below), the Government first noted that the domestic authorities had eventually assigned her a guardian ad litem (see paragraph 73 above) whose role was to protect the first applicant ’ s interests and that, contrary to the applicants ’ view, neither the European Convention on the Exercise of Children ’ s Rights nor the domestic law provided for an obligation to assign her any other special representative (see paragraphs 84 and 98 above). Furthermore, from the latest decisions adopted in both the criminal proceedings for bodily injury and the custody proceedings (see paragraphs 47 and 77 above) it was evident that the first applicant would be given a chance to express her views.", "125. In view of the foregoing arguments, the Government invited the Court to find that there had been no violation of either Article 3 or Article 8 of the Convention in the present case.", "(b) The applicants", "126. The applicants reiterated their view (see paragraph 104 above) that prosecuting the first applicant ’ s father (only) for the criminal offence of inflicting bodily injury was not sufficient for the domestic authorities to meet their positive obligations under Articles 3 and/or 8 of the Convention. Rather, he should have been prosecuted for the criminal offence of child abuse (see paragraph 86 above). By charging the first applicant ’ s father with the less serious offence of bodily injury entailing a modest penalty the prosecuting authorities had acted in his favour. Besides, even those criminal proceedings had already been pending for more than four years, and there was no indication that they would be over soon and that he would be punished.", "127. As regards the custody proceedings and the obligation to protect the first applicant from future violence by her father, the applicants argued that precisely because the domestic prosecuting and judicial authorities had failed to adequately prosecute him, judicial and social authorities and the forensic experts in the custody proceedings had been reluctant to find that the first applicant had been abused by him and to protect her from further violence by removing her from his custody.", "128. The applicants in particular pointed to a flaw in the combined expert opinion of 29 December 2011, namely to the fact that the forensic experts who had prepared it had expressly refused to reply to the family court ’ s question whether the first applicant had been abused, and if so by whom (see paragraphs 66, 70 and 75 above). That shortcoming had had wider repercussions, because that expert opinion had also been consulted by the prosecuting and judicial authorities which had eventually refused the applicants ’ attempts to prosecute the first applicant ’ s father for the criminal offence of child abuse (see paragraphs 55 and 57-58 above).", "129. The applicants particularly emphasised the fact that neither in the criminal proceedings nor in the custody proceedings was the first applicant heard, although the forensic experts regarded her as being of above-average intellectual capacities and she on multiple occasions before various professionals had unequivocally expressed the wish to live with her mother,even though her age and maturity so permitted. The first applicant ’ s precarious position had been further exacerbated by the fact that it took the domestic authorities more than a year and a half before she finally had a special representative assigned to her in the custody proceedings (see paragraph 73 above), as required by the European Convention on the Exercise of Children ’ s Rights (see paragraph 98 above).", "130. Lastly, the applicants pointed out that the custody proceedings had, like the criminal proceedings for bodily injury, also already been pending for more than four years, and there was no indication that they would soon be completed, or what would be their outcome. Because of their inordinate length they had lost their initial purpose, and the first applicant had started exhibiting signs of psychological damage, which the applicants had wished to prevent by instituting those proceedings and removing her from her father ’ s care (see paragraph 33-34 above).", "2. The Court ’ s assessment", "(a) As regards the first applicant", "131. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects, and in some instances the sex, age and state of health of the victim (see, for example, A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998 ‑ VI, and Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C).", "132. Treatment has been found by the Court to be “degrading”, and thus falling within the scope of the prohibition set out in Article 3 of the Convention, if it causes in its victim feelings of fear, anguish and inferiority (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25, and Stanev v. Bulgaria [GC], no. 36760/06, § 203, ECHR 2012); if it humiliates or debases an individual (humiliation in the victim ’ s own eyes, see Raninen v. Finland, 16 December 1997, § 32, Reports of Judgments and Decisions 1997 ‑ VIII; and/or in other people ’ s eyes, see Gutsanovi v. Bulgaria, no. 34529/10, § 136, ECHR 2013 (extracts)), whether or not that was the aim (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV ), if it breaks the person ’ s physical or psychological resistance or drives him or her to act against his or her will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006 ‑ IX), or if it shows a lack of respect for, or diminishes, human dignity (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 118 and 138, 17 July 2014).", "133. In the present case the applicants alleged that in the period between February 2008 and April 2011 the first applicant had been exposed to physical and psychological abuse by her father (see paragraph 52 above). In particular, they claimed that the first applicant ’ s father had sworn at her, uttered vulgar expressions against her, and called her names such as “stupid” or “cow”, and that he had threatened that he would cut off her long hair and ensure that she never saw or heard from her mother. They also claimed that he had frequently forced her to eat food she did not like and, when she refused, grabbed her chin and shoved the food in her mouth. He had sometimes even smeared the food all over her face. The applicants further claimed that the first applicant ’ s father had often threatened her with physical violence, had hit her on the leg with a hairbrush on one occasion, and had sometimes grabbed her arm and squeezed it so hard that she had bruises afterwards. This had culminated in the incident of 1 February 2011, when he had allegedly hit her in the face and squeezed her throat while verbally abusing her.", "134. In this connection the Court itself notes that in her statements to the police, those given before various clinical experts and those before the forensic experts who examined her in the custody proceedings, the first applicant stated on a number of occasions that she was afraid of her father (see paragraphs 15, 19-20, 23, 28-29 and 32 above). She also stated, inter alia, that when her father had smeared the food over her face she had felt embarrassed because she had been made to look ugly (see paragraph 29 above). It follows that, if the applicants ’ allegations are true, the abuse complained of instilled in the first applicant feelings of fear and shame, and on one occasion even caused her physical injury.", "135. Therefore, the Court, having regard in particular to the first applicant ’ s young age (she was nine years old at the time of the incident of 1 February 2011), considers that the cumulative effect of all the above-described acts of domestic violence (see, mutatis mutandis, Sultan Öner and Others v. Turkey, no. 73792/01, § 134, 17 October 2006) would, if they were indeed perpetrated, render the treatment she was allegedly exposed to sufficiently serious to reach the threshold of severity required for Article 3 of the Convention to apply. Having regard to its case-law (see paragraph 132 above), the Court finds that such treatment could be regarded as “degrading”.", "136. The Court further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals. Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, for example, A. v. the United Kingdom, cited above, § 22, and Opuz v. Turkey, no. 33401/02, § 159, ECHR 2009, as well as the Council of Europe Recommendation on integrated national strategies for the protection of children from violence, cited in paragraph 103 above). The Court has also acknowledged the particular vulnerability of victims of domestic violence and the need for active State involvement in their protection (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008, and Opuz, cited above, § 132 ). Those positive obligations, which often overlap, consist of: (a) the obligation to prevent ill-treatment of which the authorities knew or ought to have known (see, for example, Đorđević v. Croatia, no. 41526/10, §§ 138 ‑ 139, ECHR 2012), and (b) the (procedural) obligation to conduct an effective official investigation where an individual raises an arguable claim of ill-treatment (see, for example, Dimitar Shopov v. Bulgaria, no. 17253/07, § 47, 16 April 2013 ).", "137. In this connection, the Court first observes that the applicants reported the events of 1 February 2011 to the police authorities the next day. During the interview with the police the first applicant stated that her father had hit her in the face the day before, and mentioned other instances of domestic violence complained of (see paragraph 15 above). She later repeated those allegations before various clinical experts (see paragraphs 19 and 23 above), and before the forensic experts in the custody proceedings (see paragraphs 28-29 above).", "138. Furthermore, the injury the first applicant allegedly sustained on 1 February 2011 was medically documented. In particular, the next day she was diagnosed by an ophthalmologist with bruising of the left lower eyelid (see paragraph 13 above). The opinion obtained from the forensic expert in the course of the criminal proceedings against the first applicant ’ s father for bodily injury states that she had indeed sustained an injury around that time and that it was possible, though not certain, that it had been inflicted in the way she had described (see paragraph 44 above).", "139. As regards the remaining allegations of (mostly psychological) abuse, the Court notes that various therapists and the forensic experts in the custody proceedings established that the first applicant was a traumatised child (see paragraphs 19-20, 23, 25 and 69 above).", "140. The Court, being fully aware that the manipulation of children and false accusations of child abuse are common occurrences in highly conflictual relationships between separated parents, considers that this evidence (see the three preceding paragraphs) is sufficient to render the applicants ’ claim brought before the domestic authorities that the first applicant had been abused by her father “arguable”. It was thus capable of triggering the State ’ s (procedural) positive obligation under Article 3 of the Convention to investigate. The “arguable” character of the applicants ’ claim is therefore not called into question by the fact that the Government ’ s submission relied on (see paragraphs 116-17 above) the possibility that the first applicant had been traumatised by her separated parents ’ conflictual relationship, rather than by the alleged ill-treatment by her father.", "141. Likewise, once the applicants had reported to the authorities that the first applicant had been abused by her father and had presented the above evidence, those authorities must have been aware that she could be at risk of being subjected to such treatment (again). Accordingly, the State ’ s positive obligation to protect her from future ill-treatment was also engaged.", "142. Having regard to the foregoing, and in particular to the fact that the first applicant is both a child and an alleged victim of domestic violence, the Court considers that the present case gave rise to the State ’ s positive obligations under Article 3 of the Convention as regards that applicant.", "143. That being so, the Court considers that in so far as the first applicant complained about the State ’ s failure to discharge its positive obligations in relation to violent acts allegedly perpetrated against her by her father, her complaints under Article 8 of the Convention are absorbed by her complaints under Article 3 thereof.", "144. The Court must further ascertain whether the domestic authorities complied with their positive obligations under Article 3 of the Convention.", "(i) As regards the alleged breach of the (procedural) positive obligation to investigate", "145. As regards the positive obligation of the domestic authorities to conduct an effective official investigation into the applicants ’ allegations of ill-treatment, the Court first notes that those authorities decided to prosecute the first applicant ’ s father only for the injuries allegedly sustained during the incident of 1 February 2011 (see paragraphs 21 and 35 above). In other words, the domestic authorities decided to prosecute only what appears to be the most serious in a series of violent acts against the first applicant rather than charging her father (also) with a criminal or minor offence(s) capable of covering all the instances of ill-treatment she had allegedly sustained (see paragraphs 86-89 above), which would have enabled those authorities to address the situation in its entirety.", "146. In this connection the Court also notes that under the Convention on the Rights of the Child (see Article 19 thereof and points 40-41 of the General Comment thereto, cited in paragraphs 94 and 96 above) all reports of violence against children, including those within the family, must be appropriately investigated (but not necessarily prosecuted).", "147. However, even if prosecuting the first applicant ’ s father only for the criminal offence of bodily injury was not in the given circumstances contrary to the State ’ s procedural positive obligation to conduct an effective investigation into allegations of ill-treatment, the Court considers that in the present case the domestic authorities nevertheless failed to comply with that obligation. That is so because the criminal proceedings for bodily injury they did institute have so far lasted more than four years and two months, during which time the case has remained pending before the first-instance court (see paragraphs 35-51 above).", "148. In this connection the Court reiterates that for the investigation required by Article 3 of the Convention to be regarded as “effective”, it must not only be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible; a requirement of promptness and reasonable expedition is also implicit in that context (see, for example, W. v. Slovenia, no. 24125/06, § 64, 23 January 2014). Moreover, when the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention. In this respect, the Court has already held that the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (see, for example, W. v. Slovenia, cited above, § 65).", "149. In that regard the Court first notes that the first applicant ’ s father was indicted within two months of the alleged commission of the offence and that the penal order against him was issued less than a month after that (see paragraphs 35-36 above). It thus cannot but be concluded that at that stage the domestic authorities demonstrated exceptional promptness.", "150. However, substantial delays occurred once the first applicant ’ s father challenged the penal order which was then automatically set aside and the criminal proceedings resumed. In particular, from the Government ’ s submission it would appear that in the period between the penal order being challenged on 4 May 2011 and the first hearing in the case being scheduled on 7 May 2013 the proceedings were at a complete standstill for two years (see paragraphs 37-38 above). The Government did not provide any explanation for that delay.", "151. Further delays occurred once the trial court decided to hear the first applicant, because neither the court nor the police authorities were equipped with a video-link device (see paragraphs 47-50 above). At a time when this or similar technology is easily available, the Court finds it difficult to justify such a delay, which has so far lasted more than a year.", "152. The result of these delays on the part of the domestic authorities is that in the more than four years and five months since the first applicant was injured the domestic authorities have not established by a final judicial decision whether her injuries were inflicted by her father and, if so, determined his criminal liability in that regard and imposed a penalty. In such circumstances, the Court concludes that those authorities have failed to comply with the requirement of promptness implicit in their procedural positive obligation under Article 3 of the Convention (see, a fortiori, Remetin v. Croatia (no. 2), no. 7446/12, § 120, 24 July 2014).", "(ii) As regards the alleged breach of the positive obligation to prevent ill-treatment", "153. At the outset the Court finds it important to emphasise that the applicants did not argue that the domestic authorities had breached their positive obligation by failing to prevent the alleged acts of domestic violence against the first applicant that had already occurred. Rather, they complained that after the incident of 1 February 2011 those authorities had breached that positive obligation by leaving the first applicant in her father ’ s custody, and thus had failed to prevent the recurrence of domestic violence against her.", "154. Therefore, the Court ’ s task is to determine whether since the incident of 1 February 2011 the domestic authorities have taken all reasonable measures to prevent potential ill-treatment of the first applicant by her father, that is to prevent a risk which even the applicants themselves have not argued has ever materialised.", "155. In this connection the Court notes that on 30 March 2011, some two months after the incident of 1 February 2011, the second applicant instituted proceedings to have the custody order of 24 August 2007 reversed (see paragraphs 22 and 60 above) and the first applicant thereby removed from her father ’ s care. At the same time she asked the first-instance court to issue a provisional measure in the form of an interim custody order, whereby she would have been temporarily awarded custody of the first applicant (see paragraph 60 above).", "156. The Court further notes that in its recommendation of 12 May 2011 the local social welfare centre stated that at the time there was nothing to suggest that by staying in her father ’ s home the first applicant would be at risk (see paragraph 65 above). Nevertheless, the centre ’ s opinion was incorrectly formulated in that the relevant risk it was required to assess was the risk of abuse of the first applicant rather than any risk to her life.", "157. In this regard the Court finds it important to note that the local social welfare centre was familiar with the first applicant ’ s situation, because in the period between 7 November 2006 and 31 August 2008 it carried out a child protection measure of supervision of the exercise of parental authority in her family (see paragraph 11 above). Following the incident of 1 February 2011 the local social welfare centre again, on 22 September 2011, imposed the same measure, which lasted until 31 March 2014 (see paragraph 82 above). This means that the situation in the first applicant ’ s family was closely monitored by the social authorities during that period. Moreover, nothing in the reports of the supervising officer suggests that during that period the first applicant was, or risked being, ill-treated (see paragraph 83 above).", "158. The Court also notes that some two months after the institution of custody proceedings, on 7 June 2011 the first-instance court refused the second applicant ’ s request for a provisional measure (see paragraph 67 above). In so deciding it relied primarily on the above-mentioned recommendation of the local social welfare centre, while also taking into account other evidence, in particular two conflicting opinions of clinical psychiatrists (see paragraphs 19 and 25 above) and the fact that criminal proceedings for bodily injury against the first applicant ’ s father were still pending. It follows that its refusal to order the drastic measure proposed by the second applicant (see in this connection points 40-42 of General Comment no. 8 of the Committee on the Rights of the Child in paragraph 96 above) was based on the absence of sufficient proof that the abuse had taken place and after careful consideration of all relevant materials (see, mutatis mutandis, M.P. and Others v. Bulgaria, no. 22457/08, § 115, 15 November 2011 ).", "159. The combined expert opinion from forensic experts in psychiatry and psychology of 29 December 2011, obtained in the context of the same custody proceedings, stated that there were no contraindications to the first applicant ’ s continuing to live with her father (see paragraph 70 above). As regards the applicants ’ argument that those experts had not replied to the family court ’ s question whether she had been abused, and if so by whom (see paragraphs 70 and 128 above), the Court finds it evident that the experts would not have recommended that she continue living with her father if they considered that she had been at risk of ill-treatment.", "160. The foregoing considerations are sufficient for the Court to find that in the period after 1 February 2011 the domestic authorities took reasonable steps to assess and weigh the risk of potential ill-treatment of the first applicant by her father and to prevent it.", "161. Therefore, while the length of the custody proceedings, which have so far lasted more than four years and three months, is indeed regrettable and is relevant in a different context (see paragraphs 182-84 and 188-89 below), it is not of decisive importance in the context of this complaint, and thus cannot call into question the Court ’ s finding that the State has complied with its positive obligation to protect the first applicant from possible ill-treatment by her father (see, mutatis mutandis, M.P. and Others v. Bulgaria, cited above, § 117 ).", "162. This also means that the applicants ’ complaints concerning the alleged breach of the positive obligation to prevent ill-treatment cannot be considered premature just because the custody proceedings are still pending, as the Government argued (see paragraphs 108 and 114 above).", "(iii) Conclusion as to the merits", "163. It follows that in the present case there has been, as regards the first applicant, a violation of Article 3 of the Convention on account of the breach by the domestic authorities of their (procedural) positive obligation to conduct an effective investigation into allegations of ill-treatment, and no violation of that Article on account of their obligation to prevent such treatment.", "(b) As regards the second applicant", "164. As regards the second applicant, the Court reiterates its finding that in the case of Đorđević v. Croatia the ill-treatment to which the second applicant ’ s son had been exposed in that case had had an adverse effect on her private and family life (see Đorđević, cited above, § 97, ECHR 2012). It also held that, by failing to put in place adequate and relevant measures to prevent further ill-treatment of her son, the State authorities had not only breached their positive obligation under Article 3 of the Convention in respect of him but also their positive obligation under Article 8 in respect of her (see Đorđević, cited above, § 153, ECHR 2012).", "165. However, in the present case the Court, in view of its above finding under Article 3 of the Convention that the State has adequately discharged its positive obligation to prevent ill-treatment of the first applicant (see paragraphs 160 and 163 above), considers that the domestic authorities have also complied with their positive obligation towards the second applicant under Article 8 of the Convention.", "166. Accordingly, there has been no violation of Article 8 of the Convention in the present case as regards the second applicant concerning the alleged breach of the State ’ s positive obligation to prevent violence against her daughter, the first applicant.", "II. OTHER ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION", "167. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case, and that it is not bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the Court had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, for example, Şerife Yiğit v. Turkey [GC], no. 3976/05, § 52, 2 November 2010).", "168. The Court reiterates that various therapists and the forensic experts in the custody proceedings have established that the first applicant is a traumatised child (see paragraphs 19-20, 23, 25, 69 and 139 above). It further notes that in her statements to the police, those given before various clinical experts, and those before the forensic experts who examined her in the custody proceedings the first applicant stated on a number of occasions that she wanted to live with her mother, the second applicant (see paragraphs 19-20, 23-24, 28, 32, 34 and 69 above). The Court also observes that in her school essay of 27 October 2014 the first applicant stated that she had started cutting herself and later explained before a clinical psychologist that she had done that, inter alia, because of “inability to manage her own time and refusal to let her live with her mother, which would make her happy” and “ because she was not allowed to choose with whom to live” (see paragraphs 33-34 above). The report of that psychologist suggests that the first applicant started self-harming because of frustration resulting from limitation of her freedom of action (see paragraph 34 above).", "169. In this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130, and Gluhaković v. Croatia, no. 21188/09, § 54, 12 April 2011), and that the concept of “private life” within the meaning of that Article includes, inter alia, the right to personal autonomy (see, for example, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ) and to physical and psychological integrity (see, for example, X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91 ).", "170. In particular, in the case of Fernández Martínez v. Spain the Court, as regards the right to private and family life, stressed the importance for individuals to be able to decide freely how to conduct their private and family life, and reiterated that Article 8 also protected the right to self-fulfilment, whether in the form of personal development or from the point of view of the right to establish and develop relationships with other human beings and the outside world, the notion of personal autonomy being an important principle underlying the interpretation of the guarantees laid down in that provision (see Fernández Martínez v. Spain ([GC], no. 56030/07, § 126, ECHR 2014 (extracts)).", "171. This right to personal autonomy – which in the case of adults means the right to make choices as to how to lead one ’ s own life, provided that this does not unjustifiably interfere with the rights and freedoms of others – has a different scope in the case of children. They lack the full autonomy of adults but are, nevertheless, subjects of rights (see the Preamble to the Optional Protocol [of 19 December 2011] to the Convention on the Rights of the Child [which came into force on 14 April 2014] on a communications procedure in paragraph 95 above). This circumscribed autonomy in cases of children, which gradually increases with their evolving maturity, is exercised through their right to be consulted and heard. As specified in Article 12 of the Convention on the Rights of the Child (see paragraph 94 above), a child who is capable of forming his or her own views has the right to express them and the right to have due weight given to those views, in accordance with his or her age and maturity, and, in particular, has to be provided with the opportunity to be heard in any judicial and administrative proceedings affecting him or her.", "172. Having regard to the foregoing considerations, and taking the best interests of the child as a primary consideration, the Court considers that the applicants ’ complaints that the domestic authorities have been ignoring the first applicant ’ s wish to live with her mother, and the fact that she has not yet been heard in the custody proceedings, which have themselves lasted too long (see paragraphs 129-30 above), raise issues regarding the right to respect for private and family life distinct from those analysed in the context of Articles 3 and 8 of the Convention in paragraphs 153-66 above, which thus require separate examination by the Court under the latter Article.", "A. Admissibility", "173. The Court reiterates that the Government argued that certain complaints by the applicants under Articles 3 and/or 8 of the Convention, namely those concerning the alleged breach of the positive obligation to prevent future violent acts against the first applicant, were premature because the custody proceedings were still pending (see paragraph 108 above). In the context of this part of the application, that argument constitutes an inadmissibility objection and has to be examined as such (compare with paragraph 114 above).", "174. In this connection the Court reiterates that those custody proceedings have so far been pending for more than four years and three months, and notes that after three and a half years the first applicant started exhibiting self-harming behaviour, which she herself described as a reaction to the frustration resulting from the fact that she was not allowed to live with her mother, the second applicant (see paragraphs 33-34 above). The Court further reiterates that the speed of the domestic proceedings is relevant to whether a given remedy is to be deemed effective and hence necessary in terms of Article 35 § 1 of the Convention. Indeed, the excessive length of the domestic proceedings may constitute a special circumstance which would absolve the applicants from exhausting the domestic remedies at their disposal (see Šorgić v. Serbia, no. 34973/06, § 55, 3 November 2011 ). That is especially so in cases such as the present one, which concerns a continuing situation (highly) prejudicial to the first applicant ’ s private life (see, mutatis mutandis, X. v. Germany, no. 6699/74, Commission decision of 15 December 1977, Decisions and Reports 11, p. 16, at p. 24). Having regard to the particular circumstances mentioned above, the Court considers that in this case the applicants cannot be required to wait any longer for the final outcome of the custody proceedings.", "B. Merits", "1. The parties ’ submissions", "175. The arguments of the Government and the applicants reproduced in paragraphs 121-22 and 124 and in paragraphs 129-30 above, respectively, are also relevant for examining the merits of this part of the application.", "2. The Court ’ s assessment", "(a) The first applicant", "176. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life, and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves. Children and other vulnerable individuals, in particular, are entitled to effective protection (see, for example, Bevacqua and S., cited above, § 64 ).", "177. As regards the right to respect for private life, these obligations may involve the adoption of measures designed to secure that right, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights, and the implementation, where appropriate, of specific measures (see, for example, P. and S. v. Poland, no. 57375/08, § 95, 30 October 2012).", "178. As regards the right to respect for family life, these include an obligation on the national authorities to take measures with a view to reuniting parents with their children and to facilitate such reunions. This also applies to cases where contact and custody disputes concerning children arise between parents and/or other members of the children ’ s family (see, for example, Gluhaković, cited above, § 56 ).", "179. The Court reiterates that ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 127, 1 December 2009, and S.I. v. Slovenia, no. 45082/05, § 69, 13 October 2011).", "180. It further reiterates that whilst Article 8 contains no explicit procedural requirements, the decision-making process must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121, and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001 ‑ V (extracts)). In particular, in a number of childcare case,s the Court has examined whether the parents had been sufficiently involved in the decision-making process, with a view to establishing whether their rights under Article 8 had been violated (see, for example, W. v. the United Kingdom, cited above, §§ 62-68 and 70; Sommerfeld v. Germany [GC], no. 31871/96, §§ 66-75, ECHR 2003 ‑ VIII (extracts)); and Sahin v. Germany [GC], no. 30943/96, §§ 68-78, ECHR 2003 ‑ VIII).", "181. Having regard to Article 12 of the Convention on the Rights of the Child (see paragraphs 94 and 97 above, and in particular paragraph 32 of General Comment No. 12 (2009) on the right of the child to be heard), the Court finds that the same considerations apply mutatis mutandis in any judicial or administrative proceedings affecting children ’ s rights under Article 8 of the European Convention on Human Rights. In particular, in such cases it cannot be said that the children capable of forming their own views were sufficiently involved in the decision-making process if they were not provided with the opportunity to be heard and thus express their views.", "182. Turning to the present case, the Court notes that the custody proceedings have so far been pending for more than four years and three months. Having regard to its case-law (see Eberhard and M., cited above, §§ 138-42, and Kopf and Liberda v. Austria, no. 1598/06, §§ 46-49, 17 January 2012 ), the Court considers that this fact alone would be sufficient to find that the respondent State has failed to discharge its positive obligations under Article 8 of the Convention, even if the facts of the instant case had not necessitated greater promptness than that normally required in childcare cases.", "183. The present case indeed called for greater promptness, because it concerns a traumatised child who, if for no other reason than the fact of her parents ’ conflictual relationship, suffered great mental anguish which culminated in self-harming behaviour. However, it would appear that the domestic courts failed to recognise the seriousness and the urgency of the situation. In particular, it appears that they did not understand that the first applicant perceived life with her mother as a way out of her precarious position, and the custody proceedings as instrumental in achieving that goal. The domestic courts therefore did not realise that the protracted character of those proceedings was exacerbating the first applicant ’ s plight.", "184. The Court is particularly struck by the fact that after four years and three months the first applicant has not yet been heard in those proceedings and thus given a chance to express her views on the issue of which parent she wanted to live with. It notes that the County Court had in its decision of 15 November 2013 instructed the Municipal Court to assess whether the first applicant was able to understand the importance of the proceedings and, if so, allow her to express her opinion and take a statement from her (see paragraph 77 above), although there was nothing to call into question the presumption that the first applicant – who was at the time twelve years old – was capable of forming her own views and expressing them (see paragraph 20 of the General Comment No. 12 (2009) on the right of the child to be heard, in paragraph 97 above). In any event, more than a year and seven months have passed without steps being taken to comply even with that instruction. What is even more surprising is that no steps have been taken to accelerate the proceedings even after the first applicant started exhibiting self-harming behaviour.", "185. In addition, the Court notes that under the case-law of the Croatian courts, in situations where both parents are equally fit to take care of the child, and the child is, having regard to his or her age and maturity, capable of forming his or her own views and expressing them, the child ’ s wishes as regards which parent to live with must be respected (see paragraph 85 above). The Court cannot but subscribe to that view, as it considers that otherwise the rule that the views of the child must be given due weight would be rendered meaningless.", "186. The Court observes that in the present case the forensic experts in psychology and psychiatry found that the first applicant ’ s parents were equally (un)fit to take care of her (see paragraph 69 above), a view that appears to be shared by the local social welfare centre (see paragraph 83 above). Those experts also established that the first applicant expressed a strong wish to live with her mother (see paragraph 69 above). The Court further observes that both her parents live in the same town, and that a reversal of the custody order would therefore not entail the first applicant having to change school or otherwise be removed from her habitual social environment. Moreover, the first applicant, who is an A-grade pupil and whom the experts viewed as being of good or even above-average intellectual capacities (see paragraphs 19-20 above), was nine and a half years old at the start of the proceedings and is now thirteen and a half. It would thus be difficult to argue that, given her age and maturity, she is not capable of forming her own views and expressing them freely. The Court therefore finds that not respecting her wishes as regards the issue of which parent to live with would, in the specific circumstances of the present case, constitute an infringement of her right to respect for private and family life.", "187. Having regard to all of the above, the Court finds that there has been a violation of Article 8 of the Convention in the present case as regards the first applicant ’ s right to respect for her private and family life.", "(b) The second applicant", "188. The Court considers that its above findings concerning the protracted character of the custody proceedings apply equally to the second applicant (see paragraph 182).", "189. There has accordingly been a violation of Article 8 of the Convention in the present case as regards the second applicant ’ s right to respect for family life.", "III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION", "190. The applicants also complained that they had neither had access to court nor an effective remedy to complain of a violation of their rights under Articles 3 and 8 of the Convention because of the refusal by the domestic authorities to allow them to pursue criminal proceedings against the first applicant ’ s father for the criminal offence of child abuse. They relied on Article 6 § 1 and Article 13 of the Convention, the relevant parts of which read as follows:", "Article 6 (right to a fair hearing)", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Article 13 (right to an effective remedy)", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "191. The Court reiterates that the Convention does not guarantee a right to have criminal proceedings instituted against third persons or to have such persons convicted (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I, and Krzak v. Poland, no. 51515/99, § 24, 6 April 2004).", "192. It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "193. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "194. The applicants each claimed 20,000 euros (EUR) in respect of non-pecuniary damage.", "195. The Government contested that claim.", "196. Having regard to all the circumstances of the present case, the Court accepts that the applicants suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 19,500, to be paid to her guardian ad litem and held until such time as this sum can be administered by the first applicant herself, and the second applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts.", "B. Costs and expenses", "197. The applicants also claimed HRK 15,625 for costs and expenses incurred before the domestic authorities and HRK 27,578.47 for those incurred before the Court.", "198. The Government contested these claims.", "199. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 3,600 for the proceedings before the Court, plus any tax that may be chargeable to them.", "C. Default interest", "200. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1965 and lives in Remanzaccio.", "7. The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998.", "8. The applicant alleged that after their marriage her husband had started beating her. However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future.", "1. The first assault committed by A.T. against the applicant and her daughter", "9. The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T.", "10. When the police arrived, A.T. had left the family home. He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant ’ s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit.", "11. The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home.", "12. The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit.", "2. The second assault committed by A.T. against the applicant", "a) The applicant ’ s version", "13. The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there.", "14. She recounted the following events as follows. On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends. Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help.", "15. The police merely checked her and A.T. ’ s identity papers, and despite the applicant ’ s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon.", "16. Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week.", "b) The Government ’ s version", "17. The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home. The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon.", "3. The applicant ’ s complaint", "18. At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association” ).", "19. The president of the women ’ s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects.", "20. From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages.", "21. On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women ’ s shelter and that A.T. was harassing her by telephone.", "22. A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9 October 2012.", "23. On 15 October 2012 the prosecution, having regard to the applicant ’ s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant ’ s daughter.", "24. The applicant was given shelter by the association for three months.", "25. In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her.", "26. The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association ’ s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done.", "27. On 4 December 2012 the applicant left the shelter to look for work.", "28. She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint.", "29. On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant ’ s allegations rapidly.", "30. On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter. With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself.", "The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to. She stated that, barring her husband ’ s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence.", "31. The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband.", "32. On 30 May 2013 the Udine public prosecutor ’ s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations.", "33. In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied.", "34. With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant ’ s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries.", "35. With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28 October 2013. The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000 euros (EUR) on 1 October 2015.", "4. The third assault by A.T., against the applicant and her son and the murder by A.T. of his son", "36. It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate ’ s court on 19 May 2014 for inflicting bodily harm on the applicant in August 2012.", "37. In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband.", "38. The police made the following findings in their report : on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations. The applicant ’ s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence.", "39. A. T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade.", "40. While he was walking along the street he was arrested by the police for an identity check at 2. 25 a.m.", "41. The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him.", "42. At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant. The applicant ’ s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest.", "5. Criminal proceedings instituted against A.T. for grievous bodily harm", "43. On 1 October 2015 A.T. was convicted by the magistrate ’ s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2 ,000.", "6. Criminal proceedings instituted against A.T. for the murder of his son, the attempted murder of the applicant and ill-treatment of the applicant", "44. On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened.", "45. A.T. asked to be tried in accordance with the summary procedure ( giudizio abbreviato ).", "46. On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages.", "47. With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant ’ s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25 November 2013 were the consequence of an attempt by the applicant to get away from A.T.", "48. On 22 May 2015 A.T. appealed against the judgment.", "It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "...", "55. In its report entitled “Violence towards women” (2014) the National Statistics Institute (ISTAT) provided statistical data concerning violence towards women.", "“ Istat carried out the survey in 2014, on a sample of 24,000 women aged 16 ‑ 70.The results are to be widely disseminated also among migrant women. Istat carried out the survey in 2014, on a sample of 24,000 women aged 16-70. Estimates indicate the most affected foreign women for citizenship: Romania, Ukraine, Albania, Morocco, Moldavia, China.", "More specifically, according to the second Istat survey, 6,788,000 women have been victims of some forms of violence, either physical or sexual, during their life, that is 31.5% of women aged 16-70. 20.2% has been victim of physical violence; 21% of sexual violence and 5.4% of the most serious forms of sexual violence such as rape and attempted rape: 652,000 women have been victims of rape; and 746,000 have been victims of attempted rape.", "Further, foreign women are victims of sexual or physical violence on a scale similar to Italian women ’ s: 31.3% and 31.5%, respectively. However, physical violence is more frequent among the foreign women (25.7% vs. 19.6%), while sexual violence is more common among Italian women (21.5% vs. 16.2%). Specifically, foreign women are more exposed to rape and attempted rape (7.7% vs. 5.1%) with Moldavians (37,3%), Romanians (33,9%) and Ukrainians (33,2%) who are the most affected ones. As for the author, current and former partners are those who commit the most serious crimes. 62.7% of rapes is committed by the current or the former partner while the authors of sexual assault in the majority of cases are unknown (76.8%).", "As for the age of the victim, 10.6% of women have been victims of sexual violence prior to the age of 16. Considering VAW-cases against women with children who have been witnessed violence, the rate of children witnessing VAW cases rises to 65.2% compared to the 2006 figure (= 60.3%).", "As for women ’ s status, women separated or divorced are those far more exposes to physical or sexual violence (51.4% vs. 31.5% relating to all other cases).", "It remains of great concern the situation of women with disabilities or diseases. 36% of the women with bad health conditions and 36.6% of those with serious limitations have been victims of physical or sexual violence. The risk to be exposed to rape or attempted rape doubles compared to women without any health problems (10% vs. 4.7%).", "On a positive note, compared to the previous edition-2006, sexual and physical violence cases result to be reduced from 13.3% to 11.3%. This is the result of an increased awareness of existing protection tools by women in the first place and the public opinion at large, in addition to an overall social climate of condemnation and no mercy for such crimes.", "More specifically, physical or sexual violence cases committed by a partner or a former partner is reduced (as for the former, from 5.1% to 4%; as for the latter, from 2.8% to 2%) as well as for cases of VAW perpetrated by non-partners (from 9% to 7.7%).", "The decline is meaningful when considering cases among female students: it reduced from 17.1% to 11.9% in the event of former partners; from 5.3% to 2.4% in the event of current partner; and from 26.5% to 22%, in the event of a non-partner.", "Significantly reduced are those cases of psychological violence committed by the current partner (from 42.3% to 26.4%), especially when they are not coupled with physical and sexual violence.", "Women are far more aware that they have survived a crime (from 14.3% to 29.6% in case of violence by the partner) and it is reported far more often to the police (from 6.7% to 11.8%). More often, they talk about that with someone (from 67.8% to 75.9%) and look for professional help (from 2.4% to 4.9%). The same applies in the event of violence by a non-partner.", "Compared to the 2006 edition, survivors are far more satisfied with the relevant work carried out by the police. In the event of violence from the current or the former partner, data show an increase from 9.9% to 28.5%.", "Conversely, negative results emerge when considering cases of rape or attempted rape (1.2% in both editions).", "The forms of violence are far more serious with an increase of those also victims of injuries (from 26.3% to 40.2% when the partner is the author); and an increased number of women that were fearing that their life was in danger (from 18.8% in 2006 to 34.5% in 2014). Also the forms of violence by a non-partner are more serious.", "3, 466,000 women (=16.1%) have been victims of stalking during lifetime, of whom 1, 524,000 have been victims of their former partner; and 2,229,000 from other person that the former partner.”", "III. RELEVANT INTERNATIONAL LAW", "56. The relevant international law is partly described in the case of Opuz v. Turkey (no. 33401/02, §§ 72-82, ECHR 2009) and partly in the case of Rumor v. Italy ( no. 72964/10, §§ 31-35, 27 May 2014).", "57. At its 49 th session, which was held from 11 to 29 July 201 1, the Committee on the Elimination of Discrimination against Women ( “ the CEDAW Committee ” ) adopted its concluding comments on Italy, of which the passages relevant to the present case read as follows :-", "“26. The Committee welcomes the adoption of the Act No. 11/2009 which introduced a crime of stalking and mandatory detention for perpetrator of acts of sexual violence, the National Action Plan to Combat Violence against Women and Stalking as well as the first comprehensive research on physical, sexual and psychological violence against women developed by the National Statistics Institute. However, it remains concerned about the high prevalence of violence against women and girls and the persistence of socio-cultural attitudes condoning domestic violence, as well as lack of data on violence against immigrant, Roma and Sinti women and girls. The Committee is further concerned about the high number of women murdered by their partner or ex-partner (femicide), which may indicate a failure of the State party ’ s authorities to adequately protect the women victims from their partners or ex-partners. In accordance with its general recommendation No. 19 on violence against women and the views adopted by the Committee under the Optional Protocol procedures, the Committee urges the State party to:", "(a) put emphasis on comprehensive measures to address violence against women in the family and in society, including through addressing the specific needs of women made vulnerable by particular circumstances, such as Roma and Sinti, migrant and older women and women with disabilities;", "(b) ensure that female victims of violence have immediate protection, including expulsion of perpetrator from the home, guarantee that they can stay in secure and well funded shelters, in all parts of the country, and that they have access to free legal aid, psycho-social counselling and adequate redress, including compensation;", "(d) enhance the system of appropriate data collection on all forms of violence against women, including domestic violence, protection measures, prosecutions and sentences imposed on perpetrators and conduct appropriate surveys to assess the prevalence of violence experienced by women belonging to disadvantaged groups, such as Roma and Sinti, migrant and older women and women with disabilities;", "(e) further pursue, in collaboration with a broad range of stakeholders, including women ’ s and other civil society organizations, awareness-raising campaigns through the media and public education programmes to make violence against women socially unacceptable and disseminate information on available measures to prevent acts of violence against women among the general public;", "(f) ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, in a timely manner. ”", "58. On 27 September 2012 the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) was signed. It was ratified by Italy on 10 September 2013 and came into force in that country on 1 August 2014. The passages of that Convention relevant to the present case are partly set out in the case of Y. v. Slovenia (no. 41107/10, § § 72, ECHR 2015 (extracts) ). Furthermore, Article 3 of that Convention provides :", "Article 3 – Definitions", "“For the purpose of this Convention:", "a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life;", "b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim;", "... ”", "59. The conclusions of the United Nations Special Rapporteur on violence against women, its causes and consequences, drawn up following his official visit to Italy (from 15 to 26 January 2012), read as follows:-", "“ VII. Conclusions and recommendations", "91. Efforts have been made by the Government to address the issue of violence against women, including through the adoption of laws and policies and the establishment and merger of governmental bodies responsible for the promotion and protection of women ’ s rights. Yet these achievements have not led to a decrease in the femicide rate or translated into real improvements in the lives of many women and girls, particularly Roma and Sinti women, migrant women and women with disabilities.", "92. Despite the challenges of the current political and economic situation, targeted and coordinated efforts in addressing violence against women, through practical and innovative use of limited resources, need to remain a priority. The high levels of domestic violence, which are contributing to rising levels of femicide, demand serious attention.", "93. The Special Rapporteur would like to offer the Government the following recommendations.", "A. Law and policy reforms", "94. The Government should:", "(a) Put in place a single dedicated governmental structure to deal exclusively with the issue of substantive gender equality broadly and violence against women in particular, to overcome duplication and lack of coordination;", "(b) Expedite the creation of an independent national human rights institution with a section dedicated to women ’ s rights;", "(c) Adopt a specific law on violence against women to address the current fragmentation which is occurring in practice due to the interpretation and implementation of the civil, criminal and procedures codes;", "(d) Address the legal gap in the areas of child custody and include relevant provisions relating to protection of women who are the victims of domestic violence;", "(e) Provide education and training to strengthen the skills of judges to effectively address cases of violence against women;", "(f) Ensure the provision of quality, State-sponsored legal aid to women victims of violence as envisaged in the constitution and Law No. 154/200 on measures against violence in family relations;", "(g) Promote existing alternative forms of detention, including house arrest and low-security establishments for women with children, having due regard to the largely non-violent nature of the crimes for which they are incarcerated and the best interest of children;", "(h) Adopt a long-term, gender-sensitive and sustainable policy for social inclusion and empowerment of marginalized communities, with a particular focus on women ’ s health, education, labour and security;", "(i) Ensure the involvement of representatives of these communities, particularly women, in the design, development and implementation of policies which impact them;", "(j) Ensure continued provision of quality education for all, including through a flexible application of the 30 per cent ceiling of non-Italian pupils per classroom, to allow for inclusive schools particularly in places where the population of non-Italians is high.", "(k) Amend the “Security Package” laws generally, and the crime of irregular migration in particular, to ensure access of migrant women in irregular situations to the judiciary and law enforcement agencies, without fear of detention and deportation;", "(l) Address the existing gender disparities in the public and private sectors by effectively implementing the measures provided by the Constitution and other legislation and policies to increase the number of women, including from marginalized groups, in the political, economic, social, cultural and judicial spheres;", "(m) Continue to remove legal hurdles affecting the employment of women, which is exacerbated through the practice of signing blank resignations, and the lower positions and salary scale for women. Strengthen the social welfare system by removing impediments to the integration of women into the labour market;", "(n) Ratify and implement the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, International Labour Organization Convention No. 189 (2011) concerning decent work for domestic workers; the European Convention on the Compensation of Victims of Violent Crimes and the Council of Europe Convention on preventing and combating violence against women and domestic violence.", "B. Societal changes and awareness-raising initiatives", "95. The Government should also:", "(a) Continue to conduct awareness-raising campaigns aimed at eliminating;", "(b) Strengthen the capacity of the National Racial Discrimination Office to put in place programmes to bring about change in society ’ s perception of women who belong to marginalized communities and groups;", "(c) Continue to conduct targeted sensitization campaigns, including with CSOs, to increase awareness on violence against women generally, and women from marginalized groups in particular;", "(d) Train and sensitize the media on women ’ s rights including on violence against women, in order to achieve a non-stereotyped representation of women and men in the national media.", "C. Support services", "96. The Government should further:", "(a) Continue to take the necessary measures, including financial, to maintain existing and/or set-up new anti-violence shelters for the assistance and protection of women victims of violence;", "(b) Ensure that shelters operate according to international and national human rights standards and that accountability mechanisms are put in place to monitor the support provided to women victims of violence;", "(c) Enhance coordination and exchange of information among the judiciary, police and psychosocial and health operators who deal with violence against women;", "(d) Recognize, encourage and support public-private partnerships with CSOs and higher learning institutions, to provide research and responses to addressing violence against women.”", "60. A report by the non-governmental organisation WAVE (Women Against Violence Europe) on Italy was published in 2015. The part relevant to the present case reads as follows:", "“ In 2014, 681 women and 721 children were accommodated at 45 women ’ s shelters that are part of the national network Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e.", "In addition, there are three shelters for Black and Minority Ethnic (BME) women, migrant and asylum seeking women in the cities of Reggio Emilia, Imola and Modena, one shelter for girls and young women victims of forced marriage, and 12 shelters for victims of trafficking.", "Women ’ s Centres", "There are 140 women ’ s centres providing non-residential support to women survivors of any kind of violence in Italy; 113 of these centres are run by NGOs, 19 are run by the state, and 8 are run by faith-based organisations. While the exact number of such services is not known, there are several women ’ s centres for Black and Minority Ethnic (BME) women, as well as centres for women victims of trafficking. All the women ’ s centres provide information and advice, counselling, advocacy and practical support with access to social rights (i.e. housing, income, health care) and legal advice. Some only provide specialist support for children and family support, and cooperate with programmes for perpetrators of violence against women.", "Women ’ s Networks", "There is one national women ’ s network in Italy, called Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e. The network includes 73 members, all women ’ s organisations running women ’ s shelters and anti-violence centres in Italy. Formed in 2008 and based in Rome, the network conduct activities in the areas of public awareness, lobbying and advocacy, training, research and networking. In 2014, the network received EUR 66,747 in funding from various private donors and foundations for specific projects, and EUR 20,000 in membership fees.", "Policy & Funding", "The Extraordinary Action Plan against gender and sexual violence in accordance with art.5 par. 1 Law Decree 14 August 2013 n.93 converted with amendments into Law 15 October 2013 n.119 ( Piano di Azione Straordinario contro la violenza sessuale e di genere ai sensi dell ’ art 5 comma 1 D.L. 14 Agosto 2013 n. 93 convertito con modifiche nella legge del 15 Ottobre 2013 n 119 ) was launched in 2015 and covers a three-year period [voir paragraphe 53 ci-dessus]. The Plan addresses rape and sexual assault only marginally, and it does not provide for adequate financing of existing services or to create new services in the many regions where these are inexistent. While forced and early marriage is mentioned in the Plan, no particular measures are included. Conceived as an extraordinary measure provided for in a law decree addressing other subjects, the Plan generally fails to address the structural characteristics of violence against women and gender-based violence. Measures and interventions included in the Plan do not consider women ’ s shelters and anti-violence centres as key actors in providing specialist support to survivors of violence, with a gender perspective.", "The Department for Equal Opportunities – Presidency of the Council of Ministers – acts as coordinating body for the implementation of policies on VAW. This body has in practice little effectiveness, largely due to the failure of the President of the Council of Ministers to appoint a Minister with decision-making.", "There is currently no national monitoring body entrusted with the evaluation of national strategies on VAW in Italy, and women ’ s organisations are rarely invited to conduct such evaluation. Nonetheless, in 2014, a coalition of Italian women ’ s NGOs (among which D.i.R.e.) submitted a Shadow Report on the implementation of the Beijing Declaration and Platform for Action covering 2009-2014, and including review of national strategies on VAW.", "In 2014, funding for governmental activities to combat VAW equalled EUR 7 million, while very little funding was provided for NGOs activities through local regional governments; detailed information on funding for NGOs activities is not available, due to the budget being decentralized. State funding for women ’ s organisations providing support is exclusively project-based.", "Prevention, Awareness-raising, Campaigning", "The national women ’ s network, along with most of the women ’ s shelters and centres, and the national women ’ s helpline conduct activities in the field of prevention, awareness-raising and campaigning; besides the national women ’ s helpline (1522), none of them received funding to carry out these activities in 2014.", "Training", "Most of the women ’ s shelters and centres conduct trainings with a number of target groups: police, judiciary, civil servants, health professionals, psychologists, social workers, education professionals, media, and others.”", "THE LAW", "...", "II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "76. Relying on Articles 2, 3 and 8 of the Convention, the applicant complained that, owing to their complacency and indifference, the Italian authorities, despite having been alerted several times to her husband ’ s violence, had not taken the necessary measures to protect her and her son ’ s life from the – in her view real and known – risk represented by her husband, and had not prevented the commission of other domestic violence. She alleged that the authorities had thus failed to comply with their positive obligation under the Convention.", "77. The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties. In other words, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012 ). Having regard to the circumstances complained of by the applicant and the manner in which her complaints were formulated, the Court will examine them under Articles 2 and 3 of the Convention ( for a similar approach, see E.M. v. Romania, no. 43994/05, § 51, 30 October 201 2; Valiulienė v. Lithuania, no. 33234/07, § 87, 26 March 2013; and M.G. v. Turkey, no. 646/10, § 62, 22 March 2016 ).", "Those Articles provide :", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "78. The Government disputed that argument.", "A. The applicant ’ s submissions", "79. The applicant alleged that the failure by the authorities to comply with their obligation to protect her life and that of her son, who was killed by her husband, had resulted in a violation of Article 2 of the Convention. She submitted in that regard that the Italian authorities had failed to protect her son ’ s right to life and that they had been negligent before the repeated violence, threats and injuries which she herself had endured.", "80. She argued that the Italian authorities had tolerated de facto her husband ’ s violence. In her submission, the police had known since June 2012 that she had been a victim of violence and should have known that there was a real and serious risk that A.T. would be violent towards her. According to the applicant, there had been clear signs of a continuing threat of danger to her, but the authorities had not taken the necessary measures immediately after she had lodged her complaint and had thus left her alone and defenceless.", "81. The applicant alleged, further, that, despite the hospital certificate of 19 August 2012 establishing that she had been beaten and threatened with a knife, that fact had not been taken seriously.", "82. In the applicant ’ s view, the only remedy available had been a criminal complaint and this had not been effective. She stated that she had lodged a complaint on 5 September 2012 and made a statement to the police in April 2013. She added that, during the seven months between lodging the complaint and giving her statement, no investigative steps had been taken and no witnesses heard. In March 2013 the public prosecutor had again had to ask the police to investigate (see paragraph 29 above).", "83. The applicant complained of the authorities ’ complacency and stated that she had changed her version of the facts once she had been questioned by the police seven months after lodging her complaint. In her view, it was clear that the State had not protected her and that she had been abandoned by the authorities, who had not taken any measures to protect her despite her request. The applicant also stated that the Udine District Council, while aware of the difficult situation in which she found herself, had refused to help her and had stopped funding her accommodation at the shelter run by the association for the protection of battered women. In her submission, the authorities should have intervened of their own motion given the circumstances of the case and her vulnerability.", "84. The applicant argued that, according to the Court ’ s case-law, the positive obligations under Article 2 of the Convention imposed a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person and backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. She submitted that this could also imply in certain circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual (she referred to Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998 ‑ VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 200 7). She concluded that in the present case the Italian State had not taken the necessary measures to protect her life and that of her son.", "85. Referring to the Court ’ s case-law ( Opuz, cited above, § 159), the applicant complained that she had also been subjected to inhuman and degrading treatment. She reiterated that she had lodged a complaint, supported by her medical case notes, in September 2012 and that, for seven months, the authorities had done nothing to protect her. She added that her husband had meanwhile succeeded in convincing her to come back and live with him.", "86. In conclusion, the applicant submitted that the State had failed to comply with its positive obligations under Articles 2 and 3 of the Convention.", "B. The Government ’ s submissions", "87. After stating the principles established in the Court ’ s case-law, the Government submitted that not every claimed risk to life could entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising ( they referred to Opuz, cited above, § 129). In their submission, it also had to be established that the authorities had known or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they had failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.", "88. Furthermore, the Government considered that the present case had to be distinguished from the case of Opuz (cited above). In their submission, in the present case the authorities had not known and could not have known that the applicant and her son ’ s lives were at risk, as there had been no tangible evidence that their lives were in imminent danger. They pointed out that, after the two episodes of violence in June and August 2012 the applicant had found refuge in a victim support shelter and that she had subsequently found employment providing her with financial independence. In the Government ’ s submission, the two episodes reported in June and August 2012 had appeared to be mere family rows. The Government submitted that the authorities had done everything in their power by fining A.T. for unauthorised possession of a lethal weapon, and that an investigation in respect of ill-treatment and bodily injury required that a complaint be lodged.", "89. The Government also stated that the applicant had left the shelter where she had taken refuge and that when she had been questioned by the police in April 2013 she had changed her earlier statements. They observed that the authorities, before discontinuing the complaint of ill-treatment, had checked whether her version of the facts was accurate, whether there had been other events of that type and whether the applicant had been in a vulnerable situation capable of inducing her to change her statements. According to the Government, the applicant had then stated that there had been no further incident and that A.T. had calmed down.", "90. In those circumstances the Government considered that an intervention by the authorities could have breached Article 8 of the Convention.", "91. In their view, the time that elapsed between lodging the complaint and hearing the applicant had not had the effect of leaving the applicant exposed to violence from A.T. The Government pointed out, further, that as no other request for intervention had been made, there had been no specific sign of real and immediate violence. They added that on the basis of the aforementioned factors the authorities had decided not to prosecute A.T. for ill-treatment of family members.", "92. The Government submitted that the applicant had never shown that she had suffered continual abuse or violence or that she had lived in fear of being attacked. They observed, however, that during her interview with the police in April 2013 she had asserted that she was no longer being abused.", "93. Consequently, the Government considered that the acts of violence allegedly suffered by the applicant could not be classified as inhuman or degrading treatment.", "94. From a procedural point of view, the Government submitted that they had complied with their positive obligations under the Convention. They stated that, following the investigation, as the applicant had changed her statements, the prosecution had to request that the case be discontinued. They added that the proceedings relating to the offence of causing bodily injury had continued and that A.T. had been sentenced on 1 October 2015 to pay a fine of EUR 2, 000.", "C. The Court ’ s assessment", "1. Applicable principles", "95. The Court will examine the complaints under Articles 2 and 3 of the Convention in the light of the converging principles deriving from both those provisions, principles which are well-established and have been summarised, inter alia, in the judgments Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, §§ 110 and 112-113, ECHR 2005 ‑ VII), and Ramsahai and Others v. the Netherlands ([GC], no. 52391/99, §§ 324- 25, ECHR 2007 ‑ II ).", "96. The Court has already stated that, in interpreting Articles 2 and 3, it must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.", "97. It reiterates that Article 3, like Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining one of the core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention ( see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002 ‑ III ).", "98. The Court also reiterates the general principles established in its case-law concerning domestic violence as laid down in Opuz ( cited above, § 159, with the case-law references mentioned therein ).", "99. In that connection it reiterates that children and other vulnerable individuals – into which category fall victims of domestic violence – in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity ( see Opuz, cited above, § 159). It also observes that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that the State should set in place an efficient and independent judicial system by which the cause of a death can be established and the guilty parties punished. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. A requirement of promptness and reasonable expedition is implicit in that context ( ibid., §§ 150- 51).", "100. The Court has also previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include a duty to put in place and apply an adequate legal framework affording protection against acts of violence by private individuals (see, among other authorities, Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A. v. Croatia, no. 55164/08, § 60, 14 October 2010; Đorđević v. Croatia, no. 41526/10, §§ 141-143, ECHR 2012; and M. and M. v. Croatia, no. 10161/13, § 136, ECHR 2015 (extracts) ).", "101. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual ( see Osman, cited above, § 115; Branko Tomašić and Others v. Croatia, no. 46598/06, § 50, 15 January 2009; Opuz, cited above, § 128; Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000 ‑ III; and Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000 ‑ III ).", "Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk ( see Keenan v. the United Kingdom, no. 27229/95, §§ 89-90, ECHR 2001 ‑ III; Gongadze v. Ukraine, no. 34056/02, § 165, ECHR 2005 ‑ XI; and Opuz, cited above, §§ 129- 30). Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention ( see Osman, cited above, § 116, and Opuz, cited above, § 129).", "102. The Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, even administered by private individuals.", "103. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention ( see Opuz, cited above, § 165 ). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged ( see Sandra Janković, cited above, § 46, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010 ). The question of the appropriateness of the authorites ’ response may raise a problem under the Convention ( see Bevacqua and S ., cited above, § 79).", "104. The positive obligation to protect a person ’ s physical integrity extends to matters concerning the effectiveness of a criminal investigation, which cannot be considered to be limited solely to cases of ill-treatment by State agents ( see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII ).", "105. This aspect of the positive obligation does not necessarily require a conviction, but effective implementation of the law, particularly criminal, in order to secure the protection of the rights guaranteed by Article 3 of the Convention ( see M.G. v. Turkey, cited above, § 80).", "106. A requirement of promptness and reasonable expedition is implicit in the obligation to carry out an investigation. The protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to them ( see Opuz, cited above, §§ 150- 51). The State ’ s obligation under Article 3 of the Convention will not be deemed to be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays.", "2. Application of the above-mentioned principles to the present case", "a) Article 2", "107. The Court observes first of all that there is no doubt that Article 2 of the Convention applies to the situation arising as a result of the death of the applicant ’ s son.", "108. It notes subsequently that in the instant case the force used against the applicant was not in the event lethal. This does not, however, exclude in principle an examination of the complaints under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life ( see Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004 ‑ XI ). The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction ( see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III ).", "109. It is also necessary to bear in mind that, where the State ’ s positive obligations to protect the right to life are concerned, it may be a question of recourse to lethal force by the police or of failure by the authorities to take protective measures to avoid a risk from the acts of third party ( see, for example, Osman, cited above, §§ 115- 22 ).", "110. The Court considers that the applicant was the victim of inherently life-endangering conduct even though she ultimately survived her injuries ( see Camekan v. Turkey, no. 54241/08, § 38, 28 January 2014 ). Article 2 of the Convention therefore applies in the present case in respect of the applicant herself as well.", "111. Turning to the circumstances of the instant case, the Court notes that, following the violent acts perpetrated against her in June and August 2012, the applicant lodged a criminal complaint in respect of the abuse inflicted by A.T. ( see paragraph 21 above). It observes that the applicant appended to her complaint a medical report drawn up after the assault and describing the physical injuries visible on her body ( see paragraph 16 above ). At that time she expressed her fears for her life and that of her daughter and requested the benefit of protective measures. Accordingly, the conduct of the domestic authorities must be assessed from that date onwards.", "112. The Court notes that a judicial investigation was instituted against A.T. for ill-treatment of family members, inflicting grievous bodily harm and making threats. The police sent the applicant ’ s complaint to the prosecution on 9 October 2012. On 15 October 2012 the prosecuting authorities, having regard to the applicant ’ s request for protective measures, ordered urgent investigative measures to be carried out. In particular, they requested the police to check whether there had been witnesses, including the applicant ’ s daughter. It notes that in the meantime the applicant had found refuge, through an association, in a shelter for victims of violence, where she stayed for three months.", "113. The Court notes that no protection order was issued, that the prosecution reiterated its request to the police in March 2013, emphasising the urgency of the situation, and that the applicant was not heard until April 2013.", "114. Whilst, in the context of domestic violence, protection measures are in principle intended to avoid a dangerous situation as quickly as possible, the Court notes that seven months elapsed before the applicant was heard. Such a delay could only serve to deprive the applicant of the immediate protection required by the situation. Admittedly, as submitted by the Government, during the period in question the applicant was not subjected to further physical acts of violence by A.T. However, the Court cannot disregard the fact that the applicant, who was being harassed by telephone, was living in fear while staying at the shelter.", "115. In the view, the national authorities had a duty to take account of the unusual psychological, physical and material situation in which the applicant found herself and to assess the situation accordingly, providing her with appropriate support. That was not done in this case.", "116. While it is true that, seven months later, in April 2013, the applicant changed some of her statements, which led the authorities to discontinue the case in part, the Court notes that proceedings for grievous bodily harm were still pending on that date. Yet, the authorities failed to conduct any assessment of the risks facing the applicant, including the risk of renewed assaults.", "117. In the light of the foregoing, the Court considers that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T. ’ s acts of violence against his wife and family ( see Halime Kılıç v. Turkey, no. 63034/11, § 99, 28 June 2016 ).", "118. Although the Government submitted that there had been no tangible evidence of an imminent danger to the applicant ’ s life or that of her son, the Court considers that the authorities do not appear to have assessed the risks involved for the applicant as a result of A.T. ’ s behaviour.", "119. It notes that the context of impunity referred to above ( see paragraph 117) reached its peak during the tragic night of 25 November 2013. The Court observes in that connection that the police intervened twice that night. Having been called out by the applicant, the police first found the bedroom door broken and the floor strewn with bottles of alcohol. The applicant had informed them that her husband had been drinking and that she had decided to call them because she thought he needed a doctor. She had told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her statements. The couple ’ s son had stated that his father was not violent towards him. Lastly, neither the applicant not her son presented any traces of violence. A.T. had been taken to hospital in a state of intoxication but had subsequently checked himself out to go to an amusement arcade.", "The police intervened a second time the same night when they stopped and fined A.T. during an identity check in the street. According to the police report, A.T. had been in a state of intoxication, had difficulty maintaining his balance and the police had let him go after fining him.", "120. The Court notes that on neither occasion did the authorities take any specific measures to provide the applicant with adequate protection consonant with the seriousness of the situation, even though the violence inflicted on her by A.T. was known to the police as proceedings for inflicting grievous bodily harm on the applicant were still pending at the time ( see paragraph 35 above ).", "121. The Court cannot speculate as to how events would have turned out if the authorities had adopted a different approach. It reiterates, however, that a failure to take reasonable measures which might realistically have altered the outcome or mitigated the harm is sufficient to engage the State ’ s responsibility ( see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002; Opuz, cited above § 136; and Bljakaj and Others v. Croatia, no. 74448/12, § 124, 18 September 2014 ).", "122. In the Court ’ s view, the risk of a real and immediate threat ( see paragraph 99 above ) must be assessed taking due account of the particular context of domestic violence. In such a situation it is not only a question of an obligation to afford general protection to society ( see Mastromatteo v. Italy [GC], no. 37703/97, § 69, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 111, 15 December 2009; Choreftakis and Choreftaki v. Greece, no. 46846/08, § 50, 17 January 2012; and Bljakaj, cited above, § 121), but above all to take account of the recurrence of successive episodes of violence within the family unit. In that context the Court reiterates that the police had to intervene twice during the night of 25 November 2013: firstly when they inspected the damaged flat, and secondly when they stopped and fined A.T., who was in a state of intoxication. Having regard also to the fact that the police had been in a position to check, in real time, A.T. ’ s police record, the Court considers that they should have known that the applicant ’ s husband constituted a real risk to her, the imminent materialisation of which could not be excluded. It therefore concludes that the authorities failed to use their powers to take measures which could reasonably have prevented, or at least mitigated, the materialisation of a real risk to the lives of the applicant and her son.", "123. The Court reiterates that in domestic violence cases perpetrators ’ rights cannot supersede victims ’ human rights to life and to physical and psychological integrity ( see Opuz, cited above, § 147). Furthermore, the State has a positive obligation to take preventive operational measures to protect an individual whose life is at risk.", "124. In those circumstances the Court concludes that the authorities cannot be considered to have displayed due diligence. They therefore failed in their positive obligation to protect the right to life of the applicant and her son within the meaning of Article 2 of the Convention.", "125. Having regard to the foregoing, the Court considers that the shortcomings observed above rendered the applicant ’ s criminal complaint ineffective in the circumstances of the instant case. Accordingly, it rejects the preliminary objection raised by the Government on grounds of non-exhaustion of domestic remedies ( see paragraph 68 above ) and concludes that there has been a violation of Article 2 of the Convention.", "b) Article 3", "126. The Court considers that the applicant can be regarded as belonging to the category of “vulnerable persons” entitled to State protection ( see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI ). In that connection it takes note of the acts of violence suffered by the applicant in the past. It also notes that the violent acts perpetrated against the applicant, manifesting themselves in physical injuries and psychological pressure, are sufficiently serious to be classified as ill-treatment within the meaning of Article 3 of the Convention. It must therefore be determined whether the domestic authorities acted in a manner such as to satisfy the requirements of that Article.", "127. The Court has found, under Article 2 of the Convention ( see paragraph 117 above ) that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T. ’ s acts of violence against his wife and family. It also notes that A. T. was convicted on 1 October 2015 of causing grievous bodily harm following the incident in August 2012, while in the meantime he had killed his son and attempted to murder the applicant and had also been sentenced on 8 January 2015, by the Udine preliminary hearings judge to life imprisonment for the murder of his son and the attempted murder of his wife, and for the offences of ill-treatment of the applicant and her daughter. It was established that the applicant and her children had been living in a climate of violence ( see paragraph 47 above ).", "128. The Court reiterates on this point that the mere passing of time can work to the detriment of the investigation, and even fatally jeopardise its chances of success ( see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011 ). It also observes that the passing of time will inevitably erode the amount and quality of the evidence available and that the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the complainants ( see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002 ‑ II ).", "129. The Court again emphasises that special diligence is required in dealing with domestic violence cases and considers that the specific nature of domestic violence as recognised in the Preamble to the Istanbul Convention ( see paragraph 58 above ) must be taken into account in the context of domestic proceedings.", "It stresses in this regard that the Istanbul Convention imposes a duty on the States Parties to take “the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings ”.", "130. In that connection the Court also considers that, in judicial cases involving disputes relating to violence against women, the national authorities have a duty to examine the victim ’ s situation of extreme psychological, physical and material insecurity and vulnerability and, with the utmost expedition, to assess the situation accordingly. In the instant case there is no explanation for the authorities ’ complacency for such a long period – seven months – before the instigation of criminal proceedings. Likewise, there is no explanation for why the criminal proceedings for grievous bodily harm, instituted after the applicant had lodged her complaint, lasted three years, ending on 1 October 2015.", "131. Having regard to the findings in the present case, the Court considers that the manner in which the domestic authorities prosecuted the case is also a manifestation of that judicial complacency and cannot be deemed to satisfy the requirements of Article 3 of the Convention.", "...", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3", "133. Relying on Article 14 of the Convention taken in conjunction with Articles 2 and 3, the applicant submitted that the omissions by the Italian authorities proved that she had been discriminated against as a woman and that the Italian legislation on domestic violence was inadequate.", "Article 14 of the Convention provides :", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "134. Referring to all the domestic and international legislation she considered relevant in the instant case, the applicant relied on the conclusions of the United Nations Special Rapporteur, who urged Italy to eliminate stereotypical attitudes about the roles and responsibilities of women and men in the family, society and workplace.", "135. The applicant alleged that she had not had the benefit of adequate legislative protection and that the authorities had failed to respond appropriately to her allegations of domestic violence. In her submission, that amounted to discriminatory treatment on grounds of sex.", "136. Referring to the Court ’ s conclusion regarding Article 14 of the Convention taken in conjunction with Article 3 in the case of T.M. and C.M. v. the Republic of Moldova ( no. 26608/11, § § 49 and 62, 28 January 2014 ), the applicant requested the Court to conclude that there had been a violation of Article 14.", "137. The Government submitted that there had not been discrimination on grounds of sex in the present case. Moreover, in their submission, the claim that discrimination was institutionalised by the criminal law or administrative or judicial practice did not stand up to close analysis.", "138. They pointed out that the National Council of the Judiciary had adopted two resolutions – on 11 February 2009 and 18 March 2014 – requesting the heads of the judicial offices to organise their departments and specialise in this area in such a way as to be able to deal effectively with cases of domestic violence.", "139. They added that the domestic law provided for a firm response to such acts of violence : the law on stalking ... contained provisions for combating violence against women.", "B. The Court ’ s assessment", "1. Admissibility", "140. The Court, while observing that this complaint was never examined as such by the domestic courts, considers, in the light of the circumstances of the case, that it is so closely linked to the complaints examined above that the outcome must be the same and the complaint accordingly declared admissible.", "2. Merits", "141. The Court reiterates that, according to its case-law, a State ’ s failure to protect women against domestic violence breaches their right to equal protection before the law and that this failure does not need to be intentional ( see Opuz, cited above, § 191). The Court has previously held that “ the general and discriminatory judicial passivity [of the police] creating a climate that was conducive to domestic violence” amounted to a violation of Article 14 of the Convention ( ibid., §§ 191 et seq .). It also found that such discriminatory treatment occurred where it could be established that the authorities ’ actions were not a simple failure or delay in dealing with the violence in question, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the complainant as a woman ( see Eremia v. the Republic of Moldova, no. 3564/11, § 89, 28 May 2013 ).", "142. In the instant case the Court notes that the applicant was assaulted by A.T. on several occasions ( see paragraphs 10, 16, 21 and 47 above ) and that the authorities had been aware of this.", "143. It observes that the authorities did not carry out any investigation in the seven months following the applicant ’ s lodging of her complaint and that no measure of protection was implemented. Whilst, admittedly, the proceedings in respect of the applicant ’ s complaint were discontinued approximately one year later, on account of her having changed her statements, the Court also notes that A.T. was convicted of grievous bodily harm three years later, on 1 October 2015, after killing his son and attempting to murder the applicant.", "144. The authorities ’ complacency in the present case is particularly striking in that the prosecution had asked the police, who had remained inactive for six months, to take immediate action having regard to the applicant ’ s request for protective measures. The Court reiterates in this connection the findings it has reached regarding the domestic authorities ’ failure to provide the applicant with effective protection and the impunity enjoyed by A.T. ( see paragraph 117 above ).", "145. According to the Court, the combined effect of the above-mentioned factors shows that, by underestimating, through their complacency, the seriousness of the violent acts in question, the Italian authorities in effect condoned them. The applicant was therefore a victim of discrimination, as a woman, in breach of Article 14 of the Convention ( see T.M. and C.M. v. the Republic of Moldova, cited above, § 62; Eremia, cited above, § 98; and Mudric v. the Republic of Moldova, no. 74839/10, § 63, 16 July 2013 ). Furthermore, the conclusions of the Special Rapporteur on violence against women, its causes and consequences, following his official visit to Italy ( see 59 paragraph above ), those of the CEDAW ( see paragraph 57 above ) and those of the National Statistics Institute ( see paragraph 55 above ) demonstrate the extent of the problem of domestic violence in Italy and the discrimination suffered by women in this regard. The Court considers that the applicant provided prima facie evidence, backed up by undisputed statistical data, that domestic violence primarily affects women and that, despite the reforms implemented, a large number of women are murdered by their partners or former partners (femicide) and, secondly, that the socio - cultural attitudes of tolerance of domestic violence persist ( see paragraph 57 and 59 above ).", "146. That prima facie evidence, which is undisputed by the Government, distinguishes the present case from that of Rumor ( cited above, § 76), the circumstances of which were very different, and in which the Court had held that the legislative framework in Italy governing domestic violence had been effective in that case in punishing the perpetrator of the crime of which the applicant had been a victim and preventing the recurrence of violent attacks on her physical integrity and had accordingly held that there had been no violation of Article 3, taken alone or in conjunction with Article 14.", "147. The Court reiterates that, having found that the criminal - law system in the present case had not had an adequate deterrent effect capable of effectively preventing the unlawful acts by A.T against the personal integrity of the applicant and of her son, it held that there had been a violation of the applicant ’ s rights under Articles 2 and 3 of the Convention.", "148. Having regard to its conclusions reached above ( see paragraph 145 ), the Court considers that the violence perpetrated against the applicant must be regarded as based on her sex and accordingly as a form of discrimination against women.", "149. Consequently, in the circumstances of the instant case, the Court concludes that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 2 and 3 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1965 and lives in Remanzaccio.", "7. The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998.", "8. The applicant alleged that after their marriage her husband had started beating her. However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future.", "1. The first assault committed by A.T. against the applicant and her daughter", "9. The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T.", "10. When the police arrived, A.T. had left the family home. He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant ’ s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit.", "11. The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home.", "12. The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit.", "2. The second assault committed by A.T. against the applicant", "a) The applicant ’ s version", "13. The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there.", "14. She recounted the following events as follows. On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends. Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help.", "15. The police merely checked her and A.T. ’ s identity papers, and despite the applicant ’ s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon.", "16. Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week.", "b) The Government ’ s version", "17. The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home. The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon.", "3. The applicant ’ s complaint", "18. At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association” ).", "19. The president of the women ’ s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects.", "20. From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages.", "21. On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women ’ s shelter and that A.T. was harassing her by telephone.", "22. A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9 October 2012.", "23. On 15 October 2012 the prosecution, having regard to the applicant ’ s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant ’ s daughter.", "24. The applicant was given shelter by the association for three months.", "25. In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her.", "26. The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association ’ s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done.", "27. On 4 December 2012 the applicant left the shelter to look for work.", "28. She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint.", "29. On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant ’ s allegations rapidly.", "30. On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter. With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself.", "The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to. She stated that, barring her husband ’ s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence.", "31. The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband.", "32. On 30 May 2013 the Udine public prosecutor ’ s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations.", "33. In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied.", "34. With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant ’ s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries.", "35. With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28 October 2013. The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000 euros (EUR) on 1 October 2015.", "4. The third assault by A.T., against the applicant and her son and the murder by A.T. of his son", "36. It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate ’ s court on 19 May 2014 for inflicting bodily harm on the applicant in August 2012.", "37. In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband.", "38. The police made the following findings in their report : on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations. The applicant ’ s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence.", "39. A. T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade.", "40. While he was walking along the street he was arrested by the police for an identity check at 2. 25 a.m.", "41. The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him.", "42. At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant. The applicant ’ s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest.", "5. Criminal proceedings instituted against A.T. for grievous bodily harm", "43. On 1 October 2015 A.T. was convicted by the magistrate ’ s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2 ,000.", "6. Criminal proceedings instituted against A.T. for the murder of his son, the attempted murder of the applicant and ill-treatment of the applicant", "44. On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened.", "45. A.T. asked to be tried in accordance with the summary procedure ( giudizio abbreviato ).", "46. On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages.", "47. With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant ’ s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25 November 2013 were the consequence of an attempt by the applicant to get away from A.T.", "48. On 22 May 2015 A.T. appealed against the judgment.", "It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "...", "55. In its report entitled “Violence towards women” (2014) the National Statistics Institute (ISTAT) provided statistical data concerning violence towards women.", "“ Istat carried out the survey in 2014, on a sample of 24,000 women aged 16 ‑ 70.The results are to be widely disseminated also among migrant women. Istat carried out the survey in 2014, on a sample of 24,000 women aged 16-70. Estimates indicate the most affected foreign women for citizenship: Romania, Ukraine, Albania, Morocco, Moldavia, China.", "More specifically, according to the second Istat survey, 6,788,000 women have been victims of some forms of violence, either physical or sexual, during their life, that is 31.5% of women aged 16-70. 20.2% has been victim of physical violence; 21% of sexual violence and 5.4% of the most serious forms of sexual violence such as rape and attempted rape: 652,000 women have been victims of rape; and 746,000 have been victims of attempted rape.", "Further, foreign women are victims of sexual or physical violence on a scale similar to Italian women ’ s: 31.3% and 31.5%, respectively. However, physical violence is more frequent among the foreign women (25.7% vs. 19.6%), while sexual violence is more common among Italian women (21.5% vs. 16.2%). Specifically, foreign women are more exposed to rape and attempted rape (7.7% vs. 5.1%) with Moldavians (37,3%), Romanians (33,9%) and Ukrainians (33,2%) who are the most affected ones. As for the author, current and former partners are those who commit the most serious crimes. 62.7% of rapes is committed by the current or the former partner while the authors of sexual assault in the majority of cases are unknown (76.8%).", "As for the age of the victim, 10.6% of women have been victims of sexual violence prior to the age of 16. Considering VAW-cases against women with children who have been witnessed violence, the rate of children witnessing VAW cases rises to 65.2% compared to the 2006 figure (= 60.3%).", "As for women ’ s status, women separated or divorced are those far more exposes to physical or sexual violence (51.4% vs. 31.5% relating to all other cases).", "It remains of great concern the situation of women with disabilities or diseases. 36% of the women with bad health conditions and 36.6% of those with serious limitations have been victims of physical or sexual violence. The risk to be exposed to rape or attempted rape doubles compared to women without any health problems (10% vs. 4.7%).", "On a positive note, compared to the previous edition-2006, sexual and physical violence cases result to be reduced from 13.3% to 11.3%. This is the result of an increased awareness of existing protection tools by women in the first place and the public opinion at large, in addition to an overall social climate of condemnation and no mercy for such crimes.", "More specifically, physical or sexual violence cases committed by a partner or a former partner is reduced (as for the former, from 5.1% to 4%; as for the latter, from 2.8% to 2%) as well as for cases of VAW perpetrated by non-partners (from 9% to 7.7%).", "The decline is meaningful when considering cases among female students: it reduced from 17.1% to 11.9% in the event of former partners; from 5.3% to 2.4% in the event of current partner; and from 26.5% to 22%, in the event of a non-partner.", "Significantly reduced are those cases of psychological violence committed by the current partner (from 42.3% to 26.4%), especially when they are not coupled with physical and sexual violence.", "Women are far more aware that they have survived a crime (from 14.3% to 29.6% in case of violence by the partner) and it is reported far more often to the police (from 6.7% to 11.8%). More often, they talk about that with someone (from 67.8% to 75.9%) and look for professional help (from 2.4% to 4.9%). The same applies in the event of violence by a non-partner.", "Compared to the 2006 edition, survivors are far more satisfied with the relevant work carried out by the police. In the event of violence from the current or the former partner, data show an increase from 9.9% to 28.5%.", "Conversely, negative results emerge when considering cases of rape or attempted rape (1.2% in both editions).", "The forms of violence are far more serious with an increase of those also victims of injuries (from 26.3% to 40.2% when the partner is the author); and an increased number of women that were fearing that their life was in danger (from 18.8% in 2006 to 34.5% in 2014). Also the forms of violence by a non-partner are more serious.", "3, 466,000 women (=16.1%) have been victims of stalking during lifetime, of whom 1, 524,000 have been victims of their former partner; and 2,229,000 from other person that the former partner.”", "III. RELEVANT INTERNATIONAL LAW", "56. The relevant international law is partly described in the case of Opuz v. Turkey (no. 33401/02, §§ 72-82, ECHR 2009) and partly in the case of Rumor v. Italy ( no. 72964/10, §§ 31-35, 27 May 2014).", "57. At its 49 th session, which was held from 11 to 29 July 201 1, the Committee on the Elimination of Discrimination against Women ( “ the CEDAW Committee ” ) adopted its concluding comments on Italy, of which the passages relevant to the present case read as follows :-", "“26. The Committee welcomes the adoption of the Act No. 11/2009 which introduced a crime of stalking and mandatory detention for perpetrator of acts of sexual violence, the National Action Plan to Combat Violence against Women and Stalking as well as the first comprehensive research on physical, sexual and psychological violence against women developed by the National Statistics Institute. However, it remains concerned about the high prevalence of violence against women and girls and the persistence of socio-cultural attitudes condoning domestic violence, as well as lack of data on violence against immigrant, Roma and Sinti women and girls. The Committee is further concerned about the high number of women murdered by their partner or ex-partner (femicide), which may indicate a failure of the State party ’ s authorities to adequately protect the women victims from their partners or ex-partners. In accordance with its general recommendation No. 19 on violence against women and the views adopted by the Committee under the Optional Protocol procedures, the Committee urges the State party to:", "(a) put emphasis on comprehensive measures to address violence against women in the family and in society, including through addressing the specific needs of women made vulnerable by particular circumstances, such as Roma and Sinti, migrant and older women and women with disabilities;", "(b) ensure that female victims of violence have immediate protection, including expulsion of perpetrator from the home, guarantee that they can stay in secure and well funded shelters, in all parts of the country, and that they have access to free legal aid, psycho-social counselling and adequate redress, including compensation;", "(d) enhance the system of appropriate data collection on all forms of violence against women, including domestic violence, protection measures, prosecutions and sentences imposed on perpetrators and conduct appropriate surveys to assess the prevalence of violence experienced by women belonging to disadvantaged groups, such as Roma and Sinti, migrant and older women and women with disabilities;", "(e) further pursue, in collaboration with a broad range of stakeholders, including women ’ s and other civil society organizations, awareness-raising campaigns through the media and public education programmes to make violence against women socially unacceptable and disseminate information on available measures to prevent acts of violence against women among the general public;", "(f) ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, in a timely manner. ”", "58. On 27 September 2012 the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) was signed. It was ratified by Italy on 10 September 2013 and came into force in that country on 1 August 2014. The passages of that Convention relevant to the present case are partly set out in the case of Y. v. Slovenia (no. 41107/10, § § 72, ECHR 2015 (extracts) ). Furthermore, Article 3 of that Convention provides :", "Article 3 – Definitions", "“For the purpose of this Convention:", "a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life;", "b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim;", "... ”", "59. The conclusions of the United Nations Special Rapporteur on violence against women, its causes and consequences, drawn up following his official visit to Italy (from 15 to 26 January 2012), read as follows:-", "“ VII. Conclusions and recommendations", "91. Efforts have been made by the Government to address the issue of violence against women, including through the adoption of laws and policies and the establishment and merger of governmental bodies responsible for the promotion and protection of women ’ s rights. Yet these achievements have not led to a decrease in the femicide rate or translated into real improvements in the lives of many women and girls, particularly Roma and Sinti women, migrant women and women with disabilities.", "92. Despite the challenges of the current political and economic situation, targeted and coordinated efforts in addressing violence against women, through practical and innovative use of limited resources, need to remain a priority. The high levels of domestic violence, which are contributing to rising levels of femicide, demand serious attention.", "93. The Special Rapporteur would like to offer the Government the following recommendations.", "A. Law and policy reforms", "94. The Government should:", "(a) Put in place a single dedicated governmental structure to deal exclusively with the issue of substantive gender equality broadly and violence against women in particular, to overcome duplication and lack of coordination;", "(b) Expedite the creation of an independent national human rights institution with a section dedicated to women ’ s rights;", "(c) Adopt a specific law on violence against women to address the current fragmentation which is occurring in practice due to the interpretation and implementation of the civil, criminal and procedures codes;", "(d) Address the legal gap in the areas of child custody and include relevant provisions relating to protection of women who are the victims of domestic violence;", "(e) Provide education and training to strengthen the skills of judges to effectively address cases of violence against women;", "(f) Ensure the provision of quality, State-sponsored legal aid to women victims of violence as envisaged in the constitution and Law No. 154/200 on measures against violence in family relations;", "(g) Promote existing alternative forms of detention, including house arrest and low-security establishments for women with children, having due regard to the largely non-violent nature of the crimes for which they are incarcerated and the best interest of children;", "(h) Adopt a long-term, gender-sensitive and sustainable policy for social inclusion and empowerment of marginalized communities, with a particular focus on women ’ s health, education, labour and security;", "(i) Ensure the involvement of representatives of these communities, particularly women, in the design, development and implementation of policies which impact them;", "(j) Ensure continued provision of quality education for all, including through a flexible application of the 30 per cent ceiling of non-Italian pupils per classroom, to allow for inclusive schools particularly in places where the population of non-Italians is high.", "(k) Amend the “Security Package” laws generally, and the crime of irregular migration in particular, to ensure access of migrant women in irregular situations to the judiciary and law enforcement agencies, without fear of detention and deportation;", "(l) Address the existing gender disparities in the public and private sectors by effectively implementing the measures provided by the Constitution and other legislation and policies to increase the number of women, including from marginalized groups, in the political, economic, social, cultural and judicial spheres;", "(m) Continue to remove legal hurdles affecting the employment of women, which is exacerbated through the practice of signing blank resignations, and the lower positions and salary scale for women. Strengthen the social welfare system by removing impediments to the integration of women into the labour market;", "(n) Ratify and implement the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, International Labour Organization Convention No. 189 (2011) concerning decent work for domestic workers; the European Convention on the Compensation of Victims of Violent Crimes and the Council of Europe Convention on preventing and combating violence against women and domestic violence.", "B. Societal changes and awareness-raising initiatives", "95. The Government should also:", "(a) Continue to conduct awareness-raising campaigns aimed at eliminating;", "(b) Strengthen the capacity of the National Racial Discrimination Office to put in place programmes to bring about change in society ’ s perception of women who belong to marginalized communities and groups;", "(c) Continue to conduct targeted sensitization campaigns, including with CSOs, to increase awareness on violence against women generally, and women from marginalized groups in particular;", "(d) Train and sensitize the media on women ’ s rights including on violence against women, in order to achieve a non-stereotyped representation of women and men in the national media.", "C. Support services", "96. The Government should further:", "(a) Continue to take the necessary measures, including financial, to maintain existing and/or set-up new anti-violence shelters for the assistance and protection of women victims of violence;", "(b) Ensure that shelters operate according to international and national human rights standards and that accountability mechanisms are put in place to monitor the support provided to women victims of violence;", "(c) Enhance coordination and exchange of information among the judiciary, police and psychosocial and health operators who deal with violence against women;", "(d) Recognize, encourage and support public-private partnerships with CSOs and higher learning institutions, to provide research and responses to addressing violence against women.”", "60. A report by the non-governmental organisation WAVE (Women Against Violence Europe) on Italy was published in 2015. The part relevant to the present case reads as follows:", "“ In 2014, 681 women and 721 children were accommodated at 45 women ’ s shelters that are part of the national network Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e.", "In addition, there are three shelters for Black and Minority Ethnic (BME) women, migrant and asylum seeking women in the cities of Reggio Emilia, Imola and Modena, one shelter for girls and young women victims of forced marriage, and 12 shelters for victims of trafficking.", "Women ’ s Centres", "There are 140 women ’ s centres providing non-residential support to women survivors of any kind of violence in Italy; 113 of these centres are run by NGOs, 19 are run by the state, and 8 are run by faith-based organisations. While the exact number of such services is not known, there are several women ’ s centres for Black and Minority Ethnic (BME) women, as well as centres for women victims of trafficking. All the women ’ s centres provide information and advice, counselling, advocacy and practical support with access to social rights (i.e. housing, income, health care) and legal advice. Some only provide specialist support for children and family support, and cooperate with programmes for perpetrators of violence against women.", "Women ’ s Networks", "There is one national women ’ s network in Italy, called Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e. The network includes 73 members, all women ’ s organisations running women ’ s shelters and anti-violence centres in Italy. Formed in 2008 and based in Rome, the network conduct activities in the areas of public awareness, lobbying and advocacy, training, research and networking. In 2014, the network received EUR 66,747 in funding from various private donors and foundations for specific projects, and EUR 20,000 in membership fees.", "Policy & Funding", "The Extraordinary Action Plan against gender and sexual violence in accordance with art.5 par. 1 Law Decree 14 August 2013 n.93 converted with amendments into Law 15 October 2013 n.119 ( Piano di Azione Straordinario contro la violenza sessuale e di genere ai sensi dell ’ art 5 comma 1 D.L. 14 Agosto 2013 n. 93 convertito con modifiche nella legge del 15 Ottobre 2013 n 119 ) was launched in 2015 and covers a three-year period [voir paragraphe 53 ci-dessus]. The Plan addresses rape and sexual assault only marginally, and it does not provide for adequate financing of existing services or to create new services in the many regions where these are inexistent. While forced and early marriage is mentioned in the Plan, no particular measures are included. Conceived as an extraordinary measure provided for in a law decree addressing other subjects, the Plan generally fails to address the structural characteristics of violence against women and gender-based violence. Measures and interventions included in the Plan do not consider women ’ s shelters and anti-violence centres as key actors in providing specialist support to survivors of violence, with a gender perspective.", "The Department for Equal Opportunities – Presidency of the Council of Ministers – acts as coordinating body for the implementation of policies on VAW. This body has in practice little effectiveness, largely due to the failure of the President of the Council of Ministers to appoint a Minister with decision-making.", "There is currently no national monitoring body entrusted with the evaluation of national strategies on VAW in Italy, and women ’ s organisations are rarely invited to conduct such evaluation. Nonetheless, in 2014, a coalition of Italian women ’ s NGOs (among which D.i.R.e.) submitted a Shadow Report on the implementation of the Beijing Declaration and Platform for Action covering 2009-2014, and including review of national strategies on VAW.", "In 2014, funding for governmental activities to combat VAW equalled EUR 7 million, while very little funding was provided for NGOs activities through local regional governments; detailed information on funding for NGOs activities is not available, due to the budget being decentralized. State funding for women ’ s organisations providing support is exclusively project-based.", "Prevention, Awareness-raising, Campaigning", "The national women ’ s network, along with most of the women ’ s shelters and centres, and the national women ’ s helpline conduct activities in the field of prevention, awareness-raising and campaigning; besides the national women ’ s helpline (1522), none of them received funding to carry out these activities in 2014.", "Training", "Most of the women ’ s shelters and centres conduct trainings with a number of target groups: police, judiciary, civil servants, health professionals, psychologists, social workers, education professionals, media, and others.”", "THE LAW", "...", "II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "76. Relying on Articles 2, 3 and 8 of the Convention, the applicant complained that, owing to their complacency and indifference, the Italian authorities, despite having been alerted several times to her husband ’ s violence, had not taken the necessary measures to protect her and her son ’ s life from the – in her view real and known – risk represented by her husband, and had not prevented the commission of other domestic violence. She alleged that the authorities had thus failed to comply with their positive obligation under the Convention.", "77. The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties. In other words, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012 ). Having regard to the circumstances complained of by the applicant and the manner in which her complaints were formulated, the Court will examine them under Articles 2 and 3 of the Convention ( for a similar approach, see E.M. v. Romania, no. 43994/05, § 51, 30 October 201 2; Valiulienė v. Lithuania, no. 33234/07, § 87, 26 March 2013; and M.G. v. Turkey, no. 646/10, § 62, 22 March 2016 ).", "Those Articles provide :", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "78. The Government disputed that argument.", "A. The applicant ’ s submissions", "79. The applicant alleged that the failure by the authorities to comply with their obligation to protect her life and that of her son, who was killed by her husband, had resulted in a violation of Article 2 of the Convention. She submitted in that regard that the Italian authorities had failed to protect her son ’ s right to life and that they had been negligent before the repeated violence, threats and injuries which she herself had endured.", "80. She argued that the Italian authorities had tolerated de facto her husband ’ s violence. In her submission, the police had known since June 2012 that she had been a victim of violence and should have known that there was a real and serious risk that A.T. would be violent towards her. According to the applicant, there had been clear signs of a continuing threat of danger to her, but the authorities had not taken the necessary measures immediately after she had lodged her complaint and had thus left her alone and defenceless.", "81. The applicant alleged, further, that, despite the hospital certificate of 19 August 2012 establishing that she had been beaten and threatened with a knife, that fact had not been taken seriously.", "82. In the applicant ’ s view, the only remedy available had been a criminal complaint and this had not been effective. She stated that she had lodged a complaint on 5 September 2012 and made a statement to the police in April 2013. She added that, during the seven months between lodging the complaint and giving her statement, no investigative steps had been taken and no witnesses heard. In March 2013 the public prosecutor had again had to ask the police to investigate (see paragraph 29 above).", "83. The applicant complained of the authorities ’ complacency and stated that she had changed her version of the facts once she had been questioned by the police seven months after lodging her complaint. In her view, it was clear that the State had not protected her and that she had been abandoned by the authorities, who had not taken any measures to protect her despite her request. The applicant also stated that the Udine District Council, while aware of the difficult situation in which she found herself, had refused to help her and had stopped funding her accommodation at the shelter run by the association for the protection of battered women. In her submission, the authorities should have intervened of their own motion given the circumstances of the case and her vulnerability.", "84. The applicant argued that, according to the Court ’ s case-law, the positive obligations under Article 2 of the Convention imposed a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person and backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. She submitted that this could also imply in certain circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual (she referred to Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998 ‑ VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 200 7). She concluded that in the present case the Italian State had not taken the necessary measures to protect her life and that of her son.", "85. Referring to the Court ’ s case-law ( Opuz, cited above, § 159), the applicant complained that she had also been subjected to inhuman and degrading treatment. She reiterated that she had lodged a complaint, supported by her medical case notes, in September 2012 and that, for seven months, the authorities had done nothing to protect her. She added that her husband had meanwhile succeeded in convincing her to come back and live with him.", "86. In conclusion, the applicant submitted that the State had failed to comply with its positive obligations under Articles 2 and 3 of the Convention.", "B. The Government ’ s submissions", "87. After stating the principles established in the Court ’ s case-law, the Government submitted that not every claimed risk to life could entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising ( they referred to Opuz, cited above, § 129). In their submission, it also had to be established that the authorities had known or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they had failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.", "88. Furthermore, the Government considered that the present case had to be distinguished from the case of Opuz (cited above). In their submission, in the present case the authorities had not known and could not have known that the applicant and her son ’ s lives were at risk, as there had been no tangible evidence that their lives were in imminent danger. They pointed out that, after the two episodes of violence in June and August 2012 the applicant had found refuge in a victim support shelter and that she had subsequently found employment providing her with financial independence. In the Government ’ s submission, the two episodes reported in June and August 2012 had appeared to be mere family rows. The Government submitted that the authorities had done everything in their power by fining A.T. for unauthorised possession of a lethal weapon, and that an investigation in respect of ill-treatment and bodily injury required that a complaint be lodged.", "89. The Government also stated that the applicant had left the shelter where she had taken refuge and that when she had been questioned by the police in April 2013 she had changed her earlier statements. They observed that the authorities, before discontinuing the complaint of ill-treatment, had checked whether her version of the facts was accurate, whether there had been other events of that type and whether the applicant had been in a vulnerable situation capable of inducing her to change her statements. According to the Government, the applicant had then stated that there had been no further incident and that A.T. had calmed down.", "90. In those circumstances the Government considered that an intervention by the authorities could have breached Article 8 of the Convention.", "91. In their view, the time that elapsed between lodging the complaint and hearing the applicant had not had the effect of leaving the applicant exposed to violence from A.T. The Government pointed out, further, that as no other request for intervention had been made, there had been no specific sign of real and immediate violence. They added that on the basis of the aforementioned factors the authorities had decided not to prosecute A.T. for ill-treatment of family members.", "92. The Government submitted that the applicant had never shown that she had suffered continual abuse or violence or that she had lived in fear of being attacked. They observed, however, that during her interview with the police in April 2013 she had asserted that she was no longer being abused.", "93. Consequently, the Government considered that the acts of violence allegedly suffered by the applicant could not be classified as inhuman or degrading treatment.", "94. From a procedural point of view, the Government submitted that they had complied with their positive obligations under the Convention. They stated that, following the investigation, as the applicant had changed her statements, the prosecution had to request that the case be discontinued. They added that the proceedings relating to the offence of causing bodily injury had continued and that A.T. had been sentenced on 1 October 2015 to pay a fine of EUR 2, 000.", "C. The Court ’ s assessment", "1. Applicable principles", "95. The Court will examine the complaints under Articles 2 and 3 of the Convention in the light of the converging principles deriving from both those provisions, principles which are well-established and have been summarised, inter alia, in the judgments Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, §§ 110 and 112-113, ECHR 2005 ‑ VII), and Ramsahai and Others v. the Netherlands ([GC], no. 52391/99, §§ 324- 25, ECHR 2007 ‑ II ).", "96. The Court has already stated that, in interpreting Articles 2 and 3, it must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.", "97. It reiterates that Article 3, like Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining one of the core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention ( see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002 ‑ III ).", "98. The Court also reiterates the general principles established in its case-law concerning domestic violence as laid down in Opuz ( cited above, § 159, with the case-law references mentioned therein ).", "99. In that connection it reiterates that children and other vulnerable individuals – into which category fall victims of domestic violence – in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity ( see Opuz, cited above, § 159). It also observes that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that the State should set in place an efficient and independent judicial system by which the cause of a death can be established and the guilty parties punished. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. A requirement of promptness and reasonable expedition is implicit in that context ( ibid., §§ 150- 51).", "100. The Court has also previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include a duty to put in place and apply an adequate legal framework affording protection against acts of violence by private individuals (see, among other authorities, Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A. v. Croatia, no. 55164/08, § 60, 14 October 2010; Đorđević v. Croatia, no. 41526/10, §§ 141-143, ECHR 2012; and M. and M. v. Croatia, no. 10161/13, § 136, ECHR 2015 (extracts) ).", "101. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual ( see Osman, cited above, § 115; Branko Tomašić and Others v. Croatia, no. 46598/06, § 50, 15 January 2009; Opuz, cited above, § 128; Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000 ‑ III; and Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000 ‑ III ).", "Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk ( see Keenan v. the United Kingdom, no. 27229/95, §§ 89-90, ECHR 2001 ‑ III; Gongadze v. Ukraine, no. 34056/02, § 165, ECHR 2005 ‑ XI; and Opuz, cited above, §§ 129- 30). Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention ( see Osman, cited above, § 116, and Opuz, cited above, § 129).", "102. The Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, even administered by private individuals.", "103. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention ( see Opuz, cited above, § 165 ). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged ( see Sandra Janković, cited above, § 46, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010 ). The question of the appropriateness of the authorites ’ response may raise a problem under the Convention ( see Bevacqua and S ., cited above, § 79).", "104. The positive obligation to protect a person ’ s physical integrity extends to matters concerning the effectiveness of a criminal investigation, which cannot be considered to be limited solely to cases of ill-treatment by State agents ( see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII ).", "105. This aspect of the positive obligation does not necessarily require a conviction, but effective implementation of the law, particularly criminal, in order to secure the protection of the rights guaranteed by Article 3 of the Convention ( see M.G. v. Turkey, cited above, § 80).", "106. A requirement of promptness and reasonable expedition is implicit in the obligation to carry out an investigation. The protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to them ( see Opuz, cited above, §§ 150- 51). The State ’ s obligation under Article 3 of the Convention will not be deemed to be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays.", "2. Application of the above-mentioned principles to the present case", "a) Article 2", "107. The Court observes first of all that there is no doubt that Article 2 of the Convention applies to the situation arising as a result of the death of the applicant ’ s son.", "108. It notes subsequently that in the instant case the force used against the applicant was not in the event lethal. This does not, however, exclude in principle an examination of the complaints under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life ( see Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004 ‑ XI ). The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction ( see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III ).", "109. It is also necessary to bear in mind that, where the State ’ s positive obligations to protect the right to life are concerned, it may be a question of recourse to lethal force by the police or of failure by the authorities to take protective measures to avoid a risk from the acts of third party ( see, for example, Osman, cited above, §§ 115- 22 ).", "110. The Court considers that the applicant was the victim of inherently life-endangering conduct even though she ultimately survived her injuries ( see Camekan v. Turkey, no. 54241/08, § 38, 28 January 2014 ). Article 2 of the Convention therefore applies in the present case in respect of the applicant herself as well.", "111. Turning to the circumstances of the instant case, the Court notes that, following the violent acts perpetrated against her in June and August 2012, the applicant lodged a criminal complaint in respect of the abuse inflicted by A.T. ( see paragraph 21 above). It observes that the applicant appended to her complaint a medical report drawn up after the assault and describing the physical injuries visible on her body ( see paragraph 16 above ). At that time she expressed her fears for her life and that of her daughter and requested the benefit of protective measures. Accordingly, the conduct of the domestic authorities must be assessed from that date onwards.", "112. The Court notes that a judicial investigation was instituted against A.T. for ill-treatment of family members, inflicting grievous bodily harm and making threats. The police sent the applicant ’ s complaint to the prosecution on 9 October 2012. On 15 October 2012 the prosecuting authorities, having regard to the applicant ’ s request for protective measures, ordered urgent investigative measures to be carried out. In particular, they requested the police to check whether there had been witnesses, including the applicant ’ s daughter. It notes that in the meantime the applicant had found refuge, through an association, in a shelter for victims of violence, where she stayed for three months.", "113. The Court notes that no protection order was issued, that the prosecution reiterated its request to the police in March 2013, emphasising the urgency of the situation, and that the applicant was not heard until April 2013.", "114. Whilst, in the context of domestic violence, protection measures are in principle intended to avoid a dangerous situation as quickly as possible, the Court notes that seven months elapsed before the applicant was heard. Such a delay could only serve to deprive the applicant of the immediate protection required by the situation. Admittedly, as submitted by the Government, during the period in question the applicant was not subjected to further physical acts of violence by A.T. However, the Court cannot disregard the fact that the applicant, who was being harassed by telephone, was living in fear while staying at the shelter.", "115. In the view, the national authorities had a duty to take account of the unusual psychological, physical and material situation in which the applicant found herself and to assess the situation accordingly, providing her with appropriate support. That was not done in this case.", "116. While it is true that, seven months later, in April 2013, the applicant changed some of her statements, which led the authorities to discontinue the case in part, the Court notes that proceedings for grievous bodily harm were still pending on that date. Yet, the authorities failed to conduct any assessment of the risks facing the applicant, including the risk of renewed assaults.", "117. In the light of the foregoing, the Court considers that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T. ’ s acts of violence against his wife and family ( see Halime Kılıç v. Turkey, no. 63034/11, § 99, 28 June 2016 ).", "118. Although the Government submitted that there had been no tangible evidence of an imminent danger to the applicant ’ s life or that of her son, the Court considers that the authorities do not appear to have assessed the risks involved for the applicant as a result of A.T. ’ s behaviour.", "119. It notes that the context of impunity referred to above ( see paragraph 117) reached its peak during the tragic night of 25 November 2013. The Court observes in that connection that the police intervened twice that night. Having been called out by the applicant, the police first found the bedroom door broken and the floor strewn with bottles of alcohol. The applicant had informed them that her husband had been drinking and that she had decided to call them because she thought he needed a doctor. She had told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her statements. The couple ’ s son had stated that his father was not violent towards him. Lastly, neither the applicant not her son presented any traces of violence. A.T. had been taken to hospital in a state of intoxication but had subsequently checked himself out to go to an amusement arcade.", "The police intervened a second time the same night when they stopped and fined A.T. during an identity check in the street. According to the police report, A.T. had been in a state of intoxication, had difficulty maintaining his balance and the police had let him go after fining him.", "120. The Court notes that on neither occasion did the authorities take any specific measures to provide the applicant with adequate protection consonant with the seriousness of the situation, even though the violence inflicted on her by A.T. was known to the police as proceedings for inflicting grievous bodily harm on the applicant were still pending at the time ( see paragraph 35 above ).", "121. The Court cannot speculate as to how events would have turned out if the authorities had adopted a different approach. It reiterates, however, that a failure to take reasonable measures which might realistically have altered the outcome or mitigated the harm is sufficient to engage the State ’ s responsibility ( see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002; Opuz, cited above § 136; and Bljakaj and Others v. Croatia, no. 74448/12, § 124, 18 September 2014 ).", "122. In the Court ’ s view, the risk of a real and immediate threat ( see paragraph 99 above ) must be assessed taking due account of the particular context of domestic violence. In such a situation it is not only a question of an obligation to afford general protection to society ( see Mastromatteo v. Italy [GC], no. 37703/97, § 69, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 111, 15 December 2009; Choreftakis and Choreftaki v. Greece, no. 46846/08, § 50, 17 January 2012; and Bljakaj, cited above, § 121), but above all to take account of the recurrence of successive episodes of violence within the family unit. In that context the Court reiterates that the police had to intervene twice during the night of 25 November 2013: firstly when they inspected the damaged flat, and secondly when they stopped and fined A.T., who was in a state of intoxication. Having regard also to the fact that the police had been in a position to check, in real time, A.T. ’ s police record, the Court considers that they should have known that the applicant ’ s husband constituted a real risk to her, the imminent materialisation of which could not be excluded. It therefore concludes that the authorities failed to use their powers to take measures which could reasonably have prevented, or at least mitigated, the materialisation of a real risk to the lives of the applicant and her son.", "123. The Court reiterates that in domestic violence cases perpetrators ’ rights cannot supersede victims ’ human rights to life and to physical and psychological integrity ( see Opuz, cited above, § 147). Furthermore, the State has a positive obligation to take preventive operational measures to protect an individual whose life is at risk.", "124. In those circumstances the Court concludes that the authorities cannot be considered to have displayed due diligence. They therefore failed in their positive obligation to protect the right to life of the applicant and her son within the meaning of Article 2 of the Convention.", "125. Having regard to the foregoing, the Court considers that the shortcomings observed above rendered the applicant ’ s criminal complaint ineffective in the circumstances of the instant case. Accordingly, it rejects the preliminary objection raised by the Government on grounds of non-exhaustion of domestic remedies ( see paragraph 68 above ) and concludes that there has been a violation of Article 2 of the Convention.", "b) Article 3", "126. The Court considers that the applicant can be regarded as belonging to the category of “vulnerable persons” entitled to State protection ( see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI ). In that connection it takes note of the acts of violence suffered by the applicant in the past. It also notes that the violent acts perpetrated against the applicant, manifesting themselves in physical injuries and psychological pressure, are sufficiently serious to be classified as ill-treatment within the meaning of Article 3 of the Convention. It must therefore be determined whether the domestic authorities acted in a manner such as to satisfy the requirements of that Article.", "127. The Court has found, under Article 2 of the Convention ( see paragraph 117 above ) that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T. ’ s acts of violence against his wife and family. It also notes that A. T. was convicted on 1 October 2015 of causing grievous bodily harm following the incident in August 2012, while in the meantime he had killed his son and attempted to murder the applicant and had also been sentenced on 8 January 2015, by the Udine preliminary hearings judge to life imprisonment for the murder of his son and the attempted murder of his wife, and for the offences of ill-treatment of the applicant and her daughter. It was established that the applicant and her children had been living in a climate of violence ( see paragraph 47 above ).", "128. The Court reiterates on this point that the mere passing of time can work to the detriment of the investigation, and even fatally jeopardise its chances of success ( see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011 ). It also observes that the passing of time will inevitably erode the amount and quality of the evidence available and that the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the complainants ( see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002 ‑ II ).", "129. The Court again emphasises that special diligence is required in dealing with domestic violence cases and considers that the specific nature of domestic violence as recognised in the Preamble to the Istanbul Convention ( see paragraph 58 above ) must be taken into account in the context of domestic proceedings.", "It stresses in this regard that the Istanbul Convention imposes a duty on the States Parties to take “the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings ”.", "130. In that connection the Court also considers that, in judicial cases involving disputes relating to violence against women, the national authorities have a duty to examine the victim ’ s situation of extreme psychological, physical and material insecurity and vulnerability and, with the utmost expedition, to assess the situation accordingly. In the instant case there is no explanation for the authorities ’ complacency for such a long period – seven months – before the instigation of criminal proceedings. Likewise, there is no explanation for why the criminal proceedings for grievous bodily harm, instituted after the applicant had lodged her complaint, lasted three years, ending on 1 October 2015.", "131. Having regard to the findings in the present case, the Court considers that the manner in which the domestic authorities prosecuted the case is also a manifestation of that judicial complacency and cannot be deemed to satisfy the requirements of Article 3 of the Convention.", "...", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3", "133. Relying on Article 14 of the Convention taken in conjunction with Articles 2 and 3, the applicant submitted that the omissions by the Italian authorities proved that she had been discriminated against as a woman and that the Italian legislation on domestic violence was inadequate.", "Article 14 of the Convention provides :", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "134. Referring to all the domestic and international legislation she considered relevant in the instant case, the applicant relied on the conclusions of the United Nations Special Rapporteur, who urged Italy to eliminate stereotypical attitudes about the roles and responsibilities of women and men in the family, society and workplace.", "135. The applicant alleged that she had not had the benefit of adequate legislative protection and that the authorities had failed to respond appropriately to her allegations of domestic violence. In her submission, that amounted to discriminatory treatment on grounds of sex.", "136. Referring to the Court ’ s conclusion regarding Article 14 of the Convention taken in conjunction with Article 3 in the case of T.M. and C.M. v. the Republic of Moldova ( no. 26608/11, § § 49 and 62, 28 January 2014 ), the applicant requested the Court to conclude that there had been a violation of Article 14.", "137. The Government submitted that there had not been discrimination on grounds of sex in the present case. Moreover, in their submission, the claim that discrimination was institutionalised by the criminal law or administrative or judicial practice did not stand up to close analysis.", "138. They pointed out that the National Council of the Judiciary had adopted two resolutions – on 11 February 2009 and 18 March 2014 – requesting the heads of the judicial offices to organise their departments and specialise in this area in such a way as to be able to deal effectively with cases of domestic violence.", "139. They added that the domestic law provided for a firm response to such acts of violence : the law on stalking ... contained provisions for combating violence against women.", "B. The Court ’ s assessment", "1. Admissibility", "140. The Court, while observing that this complaint was never examined as such by the domestic courts, considers, in the light of the circumstances of the case, that it is so closely linked to the complaints examined above that the outcome must be the same and the complaint accordingly declared admissible.", "2. Merits", "141. The Court reiterates that, according to its case-law, a State ’ s failure to protect women against domestic violence breaches their right to equal protection before the law and that this failure does not need to be intentional ( see Opuz, cited above, § 191). The Court has previously held that “ the general and discriminatory judicial passivity [of the police] creating a climate that was conducive to domestic violence” amounted to a violation of Article 14 of the Convention ( ibid., §§ 191 et seq .). It also found that such discriminatory treatment occurred where it could be established that the authorities ’ actions were not a simple failure or delay in dealing with the violence in question, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the complainant as a woman ( see Eremia v. the Republic of Moldova, no. 3564/11, § 89, 28 May 2013 ).", "142. In the instant case the Court notes that the applicant was assaulted by A.T. on several occasions ( see paragraphs 10, 16, 21 and 47 above ) and that the authorities had been aware of this.", "143. It observes that the authorities did not carry out any investigation in the seven months following the applicant ’ s lodging of her complaint and that no measure of protection was implemented. Whilst, admittedly, the proceedings in respect of the applicant ’ s complaint were discontinued approximately one year later, on account of her having changed her statements, the Court also notes that A.T. was convicted of grievous bodily harm three years later, on 1 October 2015, after killing his son and attempting to murder the applicant.", "144. The authorities ’ complacency in the present case is particularly striking in that the prosecution had asked the police, who had remained inactive for six months, to take immediate action having regard to the applicant ’ s request for protective measures. The Court reiterates in this connection the findings it has reached regarding the domestic authorities ’ failure to provide the applicant with effective protection and the impunity enjoyed by A.T. ( see paragraph 117 above ).", "145. According to the Court, the combined effect of the above-mentioned factors shows that, by underestimating, through their complacency, the seriousness of the violent acts in question, the Italian authorities in effect condoned them. The applicant was therefore a victim of discrimination, as a woman, in breach of Article 14 of the Convention ( see T.M. and C.M. v. the Republic of Moldova, cited above, § 62; Eremia, cited above, § 98; and Mudric v. the Republic of Moldova, no. 74839/10, § 63, 16 July 2013 ). Furthermore, the conclusions of the Special Rapporteur on violence against women, its causes and consequences, following his official visit to Italy ( see 59 paragraph above ), those of the CEDAW ( see paragraph 57 above ) and those of the National Statistics Institute ( see paragraph 55 above ) demonstrate the extent of the problem of domestic violence in Italy and the discrimination suffered by women in this regard. The Court considers that the applicant provided prima facie evidence, backed up by undisputed statistical data, that domestic violence primarily affects women and that, despite the reforms implemented, a large number of women are murdered by their partners or former partners (femicide) and, secondly, that the socio - cultural attitudes of tolerance of domestic violence persist ( see paragraph 57 and 59 above ).", "146. That prima facie evidence, which is undisputed by the Government, distinguishes the present case from that of Rumor ( cited above, § 76), the circumstances of which were very different, and in which the Court had held that the legislative framework in Italy governing domestic violence had been effective in that case in punishing the perpetrator of the crime of which the applicant had been a victim and preventing the recurrence of violent attacks on her physical integrity and had accordingly held that there had been no violation of Article 3, taken alone or in conjunction with Article 14.", "147. The Court reiterates that, having found that the criminal - law system in the present case had not had an adequate deterrent effect capable of effectively preventing the unlawful acts by A.T against the personal integrity of the applicant and of her son, it held that there had been a violation of the applicant ’ s rights under Articles 2 and 3 of the Convention.", "148. Having regard to its conclusions reached above ( see paragraph 145 ), the Court considers that the violence perpetrated against the applicant must be regarded as based on her sex and accordingly as a form of discrimination against women.", "149. Consequently, in the circumstances of the instant case, the Court concludes that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 2 and 3 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 200 1 and lives in Bucharest. His parents, C.I. and D.D., separated in April 2004 and divorced in September 2004, mainly because of D.D. ’ s abusive behaviour towards his wife and their son. The applicant remained with his mother. On 27 February 2004 C.I. called the hotline of the Bucharest Child Protection Authority ( Direcţia Generală de Asistenţă Socială şi Protecţia Copilului ) to report the domestic abuse she and the applicant had been suffering at the hands of D.D. Since then, the case has been monitored by the Authority. On 7 October 2008 the Child Protection Authority certified that since 2004 it had included the applicant in a psychological counselling programme.", "The Child protection Authority issued the following statement concerning the monitoring of the applicant ’ s case (on 29 August 2005 for the purpose of court proceedings):", "“Mrs [C.I.] kept contact with our institution, the case being monitored by the Legal Counselling Service (legal counselling concerning eviction from home ... ) as well as by the Service concerning emergency relocation and the Centre for Psychological Counselling for Parents.”", "6. On 5 March, 16 April, 7 May and 30 June 2004 C.I. lodged complaints with the Bucharest Police about the alleged violence inflicted by her husband on the applicant. No action was taken on these complaints. On 1 July 2004 C.I. lodged a new complaint with the police concerning the alleged abuse. The police heard evidence from witnesses on behalf of the applicant and obtained information about the applicant ’ s situation from the centre where he and his mother had been relocated. Based on the evidence gathered, the police sent the file to the prosecutor ’ s office attached to the Bucharest District Court (“the prosecutor”).", "7. On 1 November 2005 the prosecutor instituted a criminal investigation against D.D. It heard evidence from C.I., D.D. and six witnesses and examined the expert reports concerning the applicant ’ s and D.D. ’ s psychological evaluations. It concluded that the applicant had suffered trauma during his early childhood because of his father who had done everything he could to torment him and to make him suffer.", "8. On 27 December 2007 the prosecutor indicted D.D. for abusive behaviour towards his son.", "9. The Bucharest District Court heard evidence from a psychologist who had observed the applicant during therapy, from C.I. and other witnesses, as well as from D.D., the last mentioned denying having hurt his son. C.I. did not request damages on behalf of the applicant. In a decision of 9 June 2008 the court acquitted D.D. on the grounds that his occasionally inappropriate behaviour towards the applicant had not been severe enough to constitute a crime. This decision was upheld by the County Court on 19 February 2009, but on 19 June 2009 the Bucharest Court of Appeal quashed this latter decision and remitted the case to the County Court, as it considered that the lower courts should have heard evidence from the applicant and relied on the psychological reports.", "10. On 14 December 2009 the County Court held a private hearing and interviewed the applicant. He told the judges how D.D. used to hit him, lock him in a small room without lights, throw water on him while he was sleeping and call him names. He stated that D.D. had often fought with his mother and that sometimes he had thrown the applicant ’ s maternal grandmother and aunt – who were bringing food to the child – out of their apartment. The applicant told the court that he did not want to live with D.D. or even meet him on the street. He was persuaded that D.D. would want to hurt him. He stated that he wished that D.D. would be punished for what he had done to him.", "11. In a decision rendered on 22 December 2009 the County Court convicted D.D. of ill-treatment inflicted on a minor and sentenced him to a suspended penalty of four years ’ imprisonment. It considered that the evidence in the prosecution file, in particular the psychological reports and the testimony given by a psychologist, confirmed that the child had suffered trauma as a consequence of his father ’ s abusive behaviour.", "The court also noted that C.I. had not requested damages on behalf of the applicant (see paragraph 9 above). Based on Article 17 of the Code of Criminal Procedure ( “the CCP”, see paragraph 24 below), the court, on its own initiative, awarded the applicant 20,000 Romanian lei (RON) in respect of non - pecuniary damage.", "12. Upon an appeal on points of law lodged by D.D., on 7 April 2010 the Bucharest Court of Appeal remitted the case to the County Court and ordered that court to obtain an expert examination of the applicant by the Forensic Medicine Institute.", "13. On 26 April 2012 the County Court rendered a new decision. Based on the evidence before it, notably the expert evaluations, psychologist ’ s testimony, witness statements, as well as the parents ’ and the applicant ’ s statements, the County Court considered it established that D.D. had physically and verbally abused his child from 2002 to 2004. It stated:", "“The County Court notes that the acts perpetrated by [D.D.] cannot be considered as isolated and random acts of physical punishment which parents can administer to their minor children, but became more severe and caused childhood attachment troubles .”", "14. D.D. was convicted of ill-treatment inflicted on a minor. He was given a suspended sentence of one year ’ s imprisonment; in addition, his right to be elected and his parental rights were suspended during the sentence and for two additional years.", "15. When sentencing D.D., the court took into account the undue length of the criminal proceedings and that there had been significant periods of inactivity by the authorities involved, in particular by the investigators and the Forensic Medicine Institute.", "16. No award of damages was made. The court did not give any explanation in its judgment as to why it decided not to award compensation to the applicant.", "17. All parties appealed on points of law. Relying on Article 17 of the CCP (see paragraph 24 below), the applicant and the prosecutor complained notably about the fact that the County Court had not awarded damages.", "18. The Bucharest Court of Appeal examined the parties ’ submissions in the light of the evidence before it. It reaffirmed that D.D. had physically and verbally abused his child; his sentence was recalculated based on the same criteria, including the reduction as a remedy for the length of the trial. The court accordingly increased the sentence to three years ’ imprisonment and suspended it. The additional penalty of restricting D.D. ’ s right to be elected and his parental rights was maintained.", "19. The court further considered that in so far as both the prosecutor and the applicant had limited their initial appeals to solely the criminal aspects of the District Court ’ s decision of 9 June 2008, the County Court had been right in not awarding damages on its own initiative. The relevant part of the decision reads as follows:", "“In so far as the prosecutor ’ s office and the injured party argued that the [County Court] should have examined the award of damages on its own initiative because the injured party was a minor, it is to be observed from the content of the decision under review that both the prosecutor ’ s office and the injured party had expressly limited their appeals to the criminal aspects of the case.", "In this situation, the [County Court] was right in limiting its examination strictly to the issues brought before it.”", "20. The Court of Appeal rendered its final decision on 1 November 2012 and rectified the text of the operative part on 22 November 2012." ]

[ "II. RELEVANT DOMESTIC LAW", "21. The Protection and Promotion of Children ’ s Rights Act ( Legea privind protecţia şi promovarea drepturilor copiilor, Law no. 272/2004 ) forbids corporal punishment as follows:", "Article 33", "“(1) A child has the right to respect for his or her personality and individuality and may not be subjected to physical punishment, or humiliating or degrading treatment.", "(2) Measures of punishment may only be taken if they respect the child ’ s dignity; under no circumstances may corporal punishment or punishment which affects the physical or psychological development or the emotional state of the child be permitted.”", "Article 89", "“(1) A child has the right to be protected against abuse, neglect, exploitation, trafficking, illegal migration, abduction, violence, internet pornography, and any form of violence, irrespective of the child ’ s environment: family, school, medical institution ... ”", "Article 94", "“(1) Abuse of a child is any voluntary act perpetrated by a person in a position of responsibility, trust or authority towards the child, whereby the child ’ s life, physical, mental, spiritual, moral or social development, corporal integrity, or physical and psychological health are put at risk; it can be classified as physical, emotional, psychological, sexual, and economic abuse.”", "Article 95", "“ Any act of violence or of deprivation of a child ’ s rights which threatens the child ’ s life, physical, mental, spiritual, moral or social development, corporal integrity, or physical and psychological health, perpetrated within the family, is forbidden ... ”", "22. Articles 98-103 of the Act provide that the Child Protection Authority has an obligation to verify any information concerning allegations of abuse and must have the support of the police in its undertakings. The Child Protection Authority may seek a court order for interim measures meant to ensure that the child does not (continue to) suffer abuse.", "23. Under Article 14 of the CCP, as in force at the relevant time, the victim of a crime had the right to obtain pecuniary and non-pecuniary damages from the responsible person, within the framework of criminal proceedings.", "24. According to Article 17 of the CCP, as in force at the relevant time, if a victim of a crime lacked full legal capacity to exercise his or her rights (as, for example, a minor), the court was under an obligation to examine the possibility of awarding damages on its own initiative. Article 17 read as follows:", "“(1) The civil action shall also be initiated and pursued on the court ’ s initiative, when the aggrieved party is a person without legal capacity or with restricted legal capacity.", "(2) To this end, the investigative authority or the court shall ask the person concerned, through his legal representative, to explain the situation concerning the pecuniary and non-pecuniary damage and information concerning the acts that caused the damage.", "(3) The court shall examine on its own initiative the matter of compensation for pecuniary and non-pecuniary damage, even without a formal request for compensation from the victim.”", "II. RELEVANT INTERNATIONAL STANDARDS CONCERNING DOMESTIC ABUSE AGAINST CHILDREN", "A. Council of Europe", "25. The Council of Europe through various conventions and implementing mechanisms as well as large-scale campaigns is fighting against domestic violence affecting children. In particular, children ’ s rights are specifically addressed in several articles of the European Social Charter, notably : Article 7 (the right of children and young persons to protection) and Article 17 (the right of children and young persons to social, legal and economic protection). The European Committee of Social Rights, which monitors the European Social Charter took note of the wide consensus at both the European and international level that corporal punishment of children should be expressly and comprehensively prohibited in law (Decision on the merits: Association for the Protection of All Children (APPROACH) Ltd. v. France, Complaint No. 92/2013, 12 September 2014).", "Romania ratified the Social Charter on 7 May 1999.", "26. In his 2008 Issue Paper on “Children and corporal punishment: ‘ The right not to be hit also a children ’ s right ’ ”, the Council of Europe ’ s Human Rights Commissioner made a thorough analysis of the situation of domestic abuse against children and the progress made towards ending corporal punishment:", "“Progress towards ending corporal punishment of children at global level", "There is a global context for making quick progress: the key message of the United Nations Secretary General ’ s Study on Violence against Children, reported to the General Assembly in October 2006, is that no violence against children is justifiable; all violence against children is preventable. The Study urges all States to move quickly to prohibit all forms of violence against children – including all corporal punishment – setting a target of 2009.", "‘ The Study should mark a turning point – an end to adult justification of violence against children, whether accepted as ‘ tradition ’ or disguised as ‘ discipline ’. There can be no compromise in challenging violence against children. Children ’ s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection from violence. ’", "At present, globally, some 23 states have prohibited all corporal punishment, including in the family.", "Progress towards ending corporal punishment of children in Europe", "Though some progress has been made in efforts against corporal punishment, it is clear that this form of abuse has an alarming frequency and prevalence all over the world. Statistics show that it is a world-wide phenomenon which affects children irrespective of their country or social origin. The prevalence of corporal punishment has been substantiated by interview surveys conducted in a number of countries with parents, other carers and increasingly with children to determine more about why and how often corporal punishment occurs.", "In its Recommendation 1666 (2004) calling for a Europe-wide ban on corporal punishment of children, the Parliamentary Assembly of the Council of Europe considered that", "‘ any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. The social and legal acceptance of corporal punishment of children must be ended. ’", "Therefore the Recommendation called for a coordinated and concerted campaign for the total abolition of corporal punishment of children. Noticing the success of the Council of Europe in abolishing the death penalty, it called for Europe to become, as soon as possible, ‘ a corporal punishment-free zone for children. ’", "The Committee of Ministers of the Council of Europe has for more than 20 years encouraged Member States to prohibit corporal punishment. It started in 1985 with a Recommendation of which the preamble notes that ‘ the defence of the family involves the protection of all its members against any form of violence, which all too often occurs among them ’. The explanatory memorandum describes corporal punishment as “an evil which must at least be discouraged as a first step towards outright prohibition. It is the very assumption that corporal punishment of children is legitimate that opens the way to all kinds of excesses and makes the traces and symptoms of such punishment acceptable to third parties”. This condemnation was echoed in further recommendations in 1990 and 1993. The Committee of Ministers has insisted on the need to begin, in all Member States, a coordinated and concerted campaign for the abolition of all violence against children.", "Therefore, in order to pursue that objective, it announced a comprehensive three ‑ year programme of action on “Children and Violence” with the following objectives:", "- assist member states in implementing international standards at national and local levels, in particular the United Nations Convention on the Rights of the Child, the European Social Charter and the European Convention on the Exercise of Children ’ s Rights;", "- by 2008, to propose a coherent and comprehensive set of instruments and methodological guidelines covering all aspects of the question;", "- improve the visibility and the impact of Council of Europe ’ s work in the field.", "...", "Conclusions", "The imperative for removing adults ’ assumed rights to hit children is that of human rights principles. It should therefore not be necessary to prove that alternative and positive means of socializing children are more effective. However, research into the harmful physical and psychological effects of corporal punishment in childhood and later life and into the links with other forms of violence do indeed add further compelling arguments for banning the practice and thereby breaking the cycle of violence.”", "27. Furthermore, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) requires States Parties to prevent violence against women, protect victims and prosecute the perpetrators. It introduces a number of criminal offences for physical, sexual and psychological violence for which more severe sentences are required when the offence is committed against or in the presence of a child.", "On 27 June 2014 Romania signed that convention with reservations and on 1 September 2016 the Istanbul Convention entered into force with respect to the Respondent State.", "28. The Recommendation CM/Rec(2009)10 of the Committee of Ministers of the Council of Europe to Member States on integrated national strategies for the protection of children from violence, adopted by the Committee of Ministers of the Council of Europe on 18 November 2009, emphasises that “children ’ s fragility and vulnerability and their dependence on adults for the growth and development call for greater investment in the prevention of violence and protection of children on the part of families, society and the State”.", "29. On 17 November 2010 at the 1098th meeting of the Ministers ’ Deputies, the Committee of Ministers adopted Guidelines on child-friendly justice (CM/Del/Dec(2010)1098/10.2). It reiterated that the best interest of children must be a primary consideration in all matters involving or affecting them and that justice must be adapted to and focused on the needs and rights of the child, including his or her right to respect for his or her physical integrity and dignity. The guidelines recognise the children ’ s right to legal counselling and to expeditious proceedings.", "B. United Nations", "30. The United Nations Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, also recognises the children ’ s right to be protected from domestic abuse and urges States to put in place adequate procedures and mechanisms to deal with the matter (Article 19):", "Article 19", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "31. The relevant part of General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia ) adopted by the Committee on the Rights of the Child at its forty-second session held from 15 May to 2 June 2006, reads as follows:", "“40. The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by their parents that come to light should lead to prosecution of parents. The de minimis principle – that the law does not concern itself with trivial matters – ensures that minor assaults between adults only come to court in very exceptional circumstances; the same will be true of minor assaults on children. States need to develop effective reporting and referral mechanisms. While all reports of violence against children should be appropriately investigated and their protection from significant harm assured, the aim should be to stop parents from using violent or other cruel or degrading punishments through supportive and educational, not punitive, interventions.", "41. Children ’ s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children ’ s best interests. It is the Committee ’ s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child. The affected child ’ s views should be given due weight, according to his or her age and maturity.", "42. Advice and training for all those involved in child protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law. Guidance should also emphasize that article 9 of the Convention requires that any separation of the child from his or her parents must be deemed necessary in the best interests of the child and be subject to judicial review, in accordance with applicable law and procedures, with all interested parties, including the child, represented. Where separation is deemed to be justified, alternatives to placement of the child outside the family should be considered, including removal of the perpetrator, suspended sentencing, and so on.”", "32. On 18 April 2011 the UN Committee on the Rights of the Child issued a general comment on the right of the child to freedom from all forms of violence giving an overview of the instances of violence in children ’ s lives and a comprehensive legal analysis of Article 19 of the UN Convention on the Rights of the Child (General Comment No. 13 (2011)). It affirmed that no form of violence against children, however light, could be tolerated, including in the familial sphere, and reiterated the States ’ obligation to prevent violence and protect child victims. The Committee further reiterated that corporal punishment, as defined in its general comment No. 8, however light, was also banned. The relevant parts read as follows:", "“17. No exceptions. The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child ’ s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.", "...", "24. Corporal punishment. In general comment No. 8 (para. 11), the Committee defined “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading. Other specific forms of corporal punishment are listed in the report of the independent expert for the United Nations study on violence against children (A /61/299, paras. 56, 60 and 62).", "...", "41. State parties that have not yet done so must:", "...", "(d ) Review and amend domestic legislation in line with article 19 and its implementation within the holistic framework of the Convention, establishing a comprehensive policy on child rights and ensuring absolute prohibition of all forms of violence against children in all settings and effective and appropriate sanctions against perpetrators;", "...", "61. Article 3 (best interests of the child). The Committee emphasizes that the interpretation of a child ’ s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child ’ s human dignity and right to physical integrity. An adult ’ s judgment of a child ’ s best interests cannot override the obligation to respect all the child ’ s rights under the Convention. In particular, the Committee maintains that the best interests of the child are best served through:", "(a ) Prevention of all forms of violence and the promotion of positive child-rearing, emphasizing the need for a focus on primary prevention in national coordinating frameworks;", "(b) Adequate investment in human, financial and technical resources dedicated to the implementation of a child rights-based and integrated child protection and support system.”", "33. The Special Representative of the Secretary General of the UN on violence against children actively participates in programmes and activities aimed at tackling the issue of domestic violence against children, to name the most recent: support to the Panama Declaration on Ending Violence against Children adopted by over five hundred faith leaders from 70 countries at the 5th Forum of the Global Network of Religions for Children in May 2017; participation in 2015 in the study and report “Counting Pennies”, reviewing Official Development Assistance (ODA) allocations to end violence against children; global survey to help map and assess progress in the implementation of the 2006 UN Study recommendations on ending violence against children, and set future priorities.", "34. In December 2013 UNICEF launched the initiative #ENDviolence which builds on growing public consensus that violence against children can no longer be tolerated and that it can only be stopped by the collective efforts of ordinary citizens, policymakers, governments and international stakeholders. In this context, in September 2014 UNICEF launched the report “Hidden in Plain Sight”, consisting of statistical data on violence against children and which aims to show the extent of physical, sexual and emotional abuse to which children are exposed all over the world. According to UNICEF, the statistical data gathered over two decades provided evidence that countries need to develop effective policies, legislation and programmes to address violence. Relevant in this campaign is also UNICEF ’ s report “Ending violence against children: six strategies for action”, also launched in September 2014, in which UNICEF proposed the main tools to enable society as a whole, from families to governments, to prevent and reduce violence against children. The strategies developed include supporting parents and equipping children with life skills; changing attitudes; strengthening judicial, criminal and social systems and services; and generating evidence and awareness about violence and its human and socio-economic costs, in order to change attitudes and norms.", "C. European Union", "35. The European Union ’ s Victims ’ Directive (2012/29/EU) reiterates that children ’ s best interests must be a matter of primary consideration and urges States to implement a child-sensitive approach, taking due account of the child ’ s age, maturity, views, needs and concerns. It regulates the right to compensation in the following terms:", "Article 4", "Right to receive information from the first contact with a competent authority", "“ 1. Member States shall ensure that victims are offered the following information, without unnecessary delay, from their first contact with a competent authority in order to enable them to access the rights set out in this Directive:", "...", "(e) how and under what conditions they can access compensation;", "... ”", "Article 16", "Right to decision on compensation from the offender in the course of criminal proceedings", "“ 1. Member States shall ensure that, in the course of criminal proceedings, victims are entitled to obtain a decision on compensation by the offender, within a reasonable time, except where national law provides for such a decision to be made in other legal proceedings.", "2. Member States shall promote measures to encourage offenders to provide adequate compensation to victims.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "36. The applicant complained that the authorities (the police, the prosecutor ’ s office and the courts) had failed to investigate promptly and effectively the allegations of ill-treatment inflicted on him, despite the evidence brought before them. He relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "37. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ observations", "38. The applicant argued that the proceeding had been excessively long and that the authorities had protracted the investigation and had failed to take into account that he had been a vulnerable person, a minor subject to domestic abuse.", "39. The Government argued that in the light of the serious and sensitive subject matter of the case, specifically accusations of ill-treatment of the applicant by his father, D.D., the effectiveness of the investigation had required an in - depth analysis of the evidence in order to avoid a miscarriage of justice, in particular as the parties had presented diverging and subjective representations of the situation which had rendered more difficult the establishment of facts. In their view, there had been no periods of inactivity imputable to the authorities, whereas the applicant ’ s representative had contributed to the general length by making use of every appeal at her disposal.", "2. The Court ’ s assessment", "(a) General principles", "40. The relevant principles concerning the State ’ s positive obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular domestic abuse committed by private individuals, are set out in M.C. and A.C. v. Romania (no. 12060/12, 12 April 2016 ), whose paragraphs 107-12 read as follows :", "“107. The Court reiterates at the outset that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see, for example, Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015; M. and M. v. Croatia, no. 10161/13, § 131, 3 September 2015; A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998 ‑ VI; and Costello ‑ Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C).", "108. Treatment has been held by the Court to be ‘ degrading ‒ and thus to fall within the scope of the prohibition set out in Article 3 of the Convention ‒ if it causes in its victim feelings of fear, anguish and inferiority (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25, and Stanev v. Bulgaria [GC], no. 36760/06, § 203, ECHR 2012), if it humiliates or debases an individual (humiliation in the victim ’ s own eyes, see Raninen v. Finland, 16 December 1997, § 32, Reports 1997 ‑ VIII, and/or in other people ’ s eyes, see Gutsanovi v. Bulgaria, no. 34529/10, § 136, ECHR 2013 (extracts)), whether or not that was the aim (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV), if it breaks the person ’ s physical or moral resistance or drives him or her to act against his or her will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006 ‑ IX), or if it shows a lack of respect for, or diminishes, human dignity (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 118 and 138, 17 July 2014).", "109. The obligation of the High Contracting Parties under Article 1 of the Convention to secure for everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill- treatment administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003 ‑ XII, confirmed more recently in O ’ Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts)).", "110. Furthermore, the absence of any direct State responsibility for acts of violence of such severity as to engage Article 3 of the Convention does not absolve the State from all obligations under this provision. In such cases, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill-treatment, even if such treatment has been inflicted by private individuals (see M.C., cited above, § 151; C.A.S. and C.S. v. Romania, no. 26692/05, § 69, 20 March 2012; and Denis Vasilyev v. Russia, no. 32704/04, §§ 98-99, 17 December 2009).", "111. Even though the scope of the State ’ s positive obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence has been inflicted by private individuals, the requirements regarding an official investigation are similar. For the investigation to be regarded as ‘ effective ’, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation as to the results to be achieved but as to the means to be employed. The authorities must have taken the steps reasonably available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context. In cases under Article 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements and the length of time taken for the preliminary investigation (see Bouyid, cited above, §§ 119- 23; Mocanu and Others, cited above, § 322; Identoba and Others, cited above, § 66; Begheluri and Others, cited above, § 99; Denis Vasilyev, cited above, § 100 with further references; and Stoica v. Romania, no. 42722/02, § 67, 4 March 2008). A prompt response by the authorities in investigating allegations of ill- treatment may generally be regarded as essential in maintaining public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. Tolerance by the authorities towards such acts cannot but undermine public confidence in the principle of lawfulness and the State ’ s maintenance of the rule of law (see Members of the Gldani Congregation of Jehovah ’ s Witnesses and Others v. Georgia, no. 71156/01, § 97, 3 May 2007).", "112. Moreover, when the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention. In this respect the Court has already held that the protection mechanisms available under domestic law should operate in practice in a manner that allows for the examination of the merits of a particular case within a reasonable time (see, for example, W. v. Slovenia, no. 24125/06, § 65, 23 January 2014).”", "41. Concerning children or other vulnerable individuals, the Court stated as follows in M. and M. v. Croatia (no. 10161/13, § 136, ECHR 2015 (extracts); see also, mutatis mutandis, C .A.S. and C.S. v. Romania, no. 26692/05, §§ 68-70 and 82, 20 March 2012, and Z and Others v. the United Kingdom, [GC], no. 29392/95, § 73, ECHR 2001 - V) :", "“136. The Court further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals. Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, for example, A. v. the United Kingdom, cited above, § 22, and Opuz v. Turkey, no. 33401/02, § 159, ECHR 2009, as well as the Council of Europe Recommendation on integrated national strategies for the protection of children from violence, cited in paragraph 103 above). The Court has also acknowledged the particular vulnerability of victims of domestic violence and the need for active State involvement in their protection (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008, and Opuz, cited above, § 132). Those positive obligations, which often overlap, consist of: (a) the obligation to prevent ill-treatment of which the authorities knew or ought to have known (see, for example, Đorđević v. Croatia, no. 41526/10, §§ 138 - 139, ECHR 2012), and (b) the (procedural) obligation to conduct an effective official investigation where an individual raises an arguable claim of ill-treatment (see, for example, Dimitar Shopov v. Bulgaria, no. 17253/07, § 47, 16 April 2013).”", "(b) Application of these principles to the present case", "42. Turning to the facts of the present case, the Court notes that the authorities became aware of the applicant ’ s situation on 27 February 2004, when the applicant ’ s mother (C.I.) called the hotline of the Child Protection Authority to report the abuse (see paragraph 5 above). There is however no indication that anything concrete was done to verify the information or transmit it to the police for investigation or in any way to protect the victims from the alleged abuse, despite the legal obligation to do so (see paragraph 22 above). Moreover, no action was taken by the authorities in respect of the first four criminal complaints lodged by C.I. against D.D., from March to June 2004 (see paragraph 6 above).", "43. As for the proceedings, the Court notes that they started on 1 July 2004 (see paragraph 6 above) and ended on 1 November 2012 (see paragraph 20 above). They thus lasted eight years and four months at three levels of jurisdiction. Moreover, the investigation lasted until 27 December 2007, that is, for almost three years and six months, and little seems to have been done during this period besides hearing evidence from six witnesses and examining reports (see paragraphs 6 to 8 above). The Government could not point to any investigative act that would have taken place other that the ones mentioned previously, nor to any particular difficulty encountered by the police and the prosecutor during the investigation (see paragraph 3 9 above). Moreover, the domestic courts themselves acknowledged that there had been significant periods of inactivity caused by the investigators and the Forensic Medicine Institute (see paragraph 15 above). Under these circumstances, it is difficult to account for the significant length of this phase of the proceedings. In addition, the court proceedings were dominated by repeated quashing of decisions caused by the lower courts ’ omissions (see paragraphs 9 in fine and 12 above). The applicant cannot be blamed for any excessive protraction of the proceedings and cannot be deemed to have abused his procedural rights.", "44. The Court considers that, in and of itself, the length of the investigation and the trial was excessive according to the Court ’ s standards under Article 6. However, the purpose of its analysis under Article 3 is different. As pointed out in its case-law, albeit from the standpoint of Article 2, the requirement of promptness should not be examined in isolation and irrespective of the other parameters, the combination of which makes an investigation effective (see, mutatis mutandis, Sarbyanova ‑ Pashaliyska and Pashaliyska v. Bulgaria, no. 3524/14, § 41, 12 January 2017).", "45. Furthermore, the Court observes that at the end of the proceedings in the instant case the authorities may be considered to have achieved the essential purpose pursued with the investigation, in so far as D.D., the person responsible for the abuse, was convicted and sentenced to a term of imprisonment (see paragraph 18 above).", "46. Notwithstanding this, the Court considers that several shortcomings were apparent in the proceedings which undermine the overall effectiveness of the investigation.", "47. Firstly, the Court observes that while the domestic courts took into account the excessive length of the proceedings to grant redress to D.D. by reducing his prison sentence (see paragraph 18 above), they failed to offer any comparable compensation to the applicant himself. However, he also suffered the consequences of the extensive length of the case as he was a party to the proceedings and the victim of the domestic abuse under investigation.", "48. Furthermore, the Court notes that the applicant received no compensation for the abuse ( compare and contrast with Sarbyanova ‑ Pashaliyska and Pashaliyska, cited above, § 42).", "49. The Court further notes that the District Court in the first round of the proceedings acquitted D.D., having found no crime in “his occasionally inappropriate behaviour towards the applicant” (see paragraph 9 above). Along this vein, the County Court later seemed to consider that “isolated and random” acts of violence could be tolerated within the family sphere (see paragraph 13 above). The Court fails to see how this statement fits in with the relevant provisions of domestic law prohibiting in absolute terms domestic corporal punishment (see paragraph 21 above). Moreover, the Court notes that the Council of Europe recognises that the best interests of the children, which unquestionably include the respect for their rights and dignity, are the cornerstone of the protection afforded to children from corporal punishment (see paragraphs 25 to 29 above).", "50. It is also to be noted that the overriding concern in the 1989 United Nations Convention on the Rights of the Child (see paragraph 30 above) is dignity. Such a value is consistent with both evolving international law on human rights and the developing psychological perspective in jurisprudence. Respect for the dignity of children is consonant with provision of those elements important to their growth as full members of the community. Assuring basic dignity to the child means that there can be no compromise in condemning violence against children, whether accepted as “tradition” or disguised as “discipline”. Children ’ s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection from violence, including from domestic corporal punishment, the latter being invariably degrading (see General Comment No. 13 (2011) cited at paragraph 32 above).", "51. It is thus clear that respect for children ’ s dignity cannot be ensured if the domestic courts were to accept any form of justification of acts of ill ‑ treatment, including corporal punishment, prohibited under Article 3. In this context, the Court considers that Member States should strive to expressly and comprehensively protect children ’ s dignity which in turn requires in practice an adequate legal framework affording protection of children against domestic violence falling within the scope of Article 3, including a) effective deterrence against such serious breaches of personal integrity, b) reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge, and c) effective official investigations where an individual raises an arguable claim of ill-treatment (see M. and M. v. Croatia, cited above, § 136, and Söderman v. Sweden [GC], no. 5786/08, §§ 80 and 81, ECHR 2013).", "52. For these reasons, bearing in mind what was at stake for the applicant in the proceedings, the length and pace of the proceedings, and the difference in treatment between the applicant and the perpetrator in respect of that length, as well as the manner in which the courts dealt with the issue of domestic abuse, the Court concludes that the investigation into the allegations of ill-treatment was ineffective as it lasted too long and was marred by several serious shortcomings. It follows that the domestic authorities did not comply with their procedural obligations under Article 3 of the Convention (see, mutatis mutandis, W. v. Slovenia, no. 24125/06, §§ 6 6 -70, 23 January 2014; P.M. v. Bulgaria, no. 49669/07, § § 65- 6 6, 24 January 2012; and M.C. and A.C., cited above, § § 120- 125).", "53. Accordingly, there has been a violation of the procedural limb of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "54. The applicant further complained about the length of the criminal proceedings against D.D. and about the failure of the courts to award him damages. He relied on Article 6 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "55. The Court notes that this complaint is twofold. Firstly, the applicant complained about the alleged lack of fairness of the proceedings, and implicitly about the lack of access to a court. Secondly, the applicant complained about the length of the criminal proceedings against his father. The Court will examine these aspects separately.", "A. Fairness of the proceedings", "1. Admissibility", "56. The Government argued that the applicant had failed to exhaust the domestic remedies available. On the one hand, he had not sought damages during the criminal proceedings, thus remaining essentially passive in this respect. On the other hand, he had not lodged a separate civil claim before the domestic courts, based on the relevant provisions of the Civil Code applicable at that time.", "57. The applicant contested that argument and stressed that the State authorities, notably the Child Protection Authority, the prosecutor and the judge had had a legal obligation to protect his interests as he had been a minor victim of domestic abuse at the time of the relevant criminal proceedings.", "58. The Court notes that this objection is closely linked to the merits of the complaint. It therefore joins the preliminary issue to the merits. It further observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is also not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) The parties ’ observations", "59. The applicant reiterated that the domestic court had had an obligation to award damages on its own motion as he had been a minor at the relevant time. He also pointed out that both he and the prosecutor had complained in their appeals about the County Court having omitted to award compensation.", "60. The Government stressed the applicant ’ s passivity throughout the first-instance court proceedings concerning the right to receive compensation and considered that the courts had provided sensible reasons for not making such an award. They argued that in so far as “the constant position of the applicant ’ s representative was that ‘ she does not request moral damage ’ from the defendant”, and leaving aside the alleged lack of application of Article 17 of the CCP, it would not have been reasonable to award compensation against the applicant ’ s will.", "(b) The Court ’ s assessment", "( i ) General principles", "61. The Court refers to the general principles articulated in its case-law, and in particular in its judgment in the case of Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, ECHR 2015), where it explained under what circumstances the domestic court ’ s appreciation of the facts of a particular case may be considered to be “arbitrary”. Paragraph 62 of that judgment reads as follows:", "“62. Thus, in Dulaurans the Court found a violation of the right to a fair trial because the sole reason why the French Court of Cassation had arrived at its contested decision rejecting the applicant ’ s cassation appeal as inadmissible was the result of une erreur manifeste d ’ appréciation ( ‘ a manifest error of assessment ’ ) (see Dulaurans, cited above). The thinking underlying this notion of erreur manifeste d ’ appréciation (a concept of French administrative law), as used in the context of Article 6 § 1 of the Convention, is doubtless that if the error of law or fact by the national court is so evident as to be characterised as a ‘ manifest error ’ – that is to say, is an error that no reasonable court could ever have made –, it may be such as to disturb the fairness of the proceedings. In Khamidov, the unreasonableness of the domestic courts ’ conclusion as to the facts was “so striking and palpable on the face” that the Court held that the proceedings complained of had to be regarded as “grossly arbitrary” (see Khamidov, cited above, § 174). In Anđelković, the Court found that the arbitrariness of the domestic court ’ s decision, which principally had had no legal basis in domestic law and had not contained any connection between the established facts, the applicable law and the outcome of the proceedings, amounted to a ‘ denial of justice ’ (see Anđelković, cited above, § 27).”", "( ii ) Application to the present case", "62. The Court finds at the outset that the present case concerns a dispute ( contestation in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law (see Bochan, cited above, § 42; see also, mutatis mutandis, Anđelković v. Serbia, no. 1401/08, § 25, 9 April 2013). Domestic law provided for the right to receive compensation (see paragraph 23 above) and the applicant ’ s complaint with the Court of Appeal constituted a genuine and serious dispute (see paragraph 17 above). The proceedings were directly decisive for the right in question and the decision rendered by the Court of Appeal represented the final resolution of the matter (see respectively paragraphs 19 and 20 above).", "63. Further, the Court notes that according to the applicable law, the courts were under an obligation to rule on the matter of compensation even without a formal request to that end from the applicant, who was a minor and therefore a person without legal capacity at the relevant time. Moreover, both the courts and the prosecutor had to actively seek information from the victim about the extent of the damage incurred (see paragraph 24 above). The law thus afforded reinforced protection to the vulnerable persons, such as the applicant, by placing an extended responsibility on the authorities to take an active role in this respect (see, mutatis mutandis, Lamarche v. Romania, no. 21472/03, § 34, 16 September 2008). For this reason and in the light of the object of the investigation, the proceedings went beyond mere litigation between private individuals, thus engaging the State ’ s responsibility with respect to Article 6 § 1 of the Convention.", "64. In this connection, the Court considers that the case is to be examined form the stand point of the courts ’ obligation to secure the applicant ’ s rights in the concrete and exceptional circumstances of the case. Whether the applicant expressly requested compensation or not is irrelevant, as the courts had an obligation to examine on their own initiative the question of damages.", "65. In particular, despite the express provisions of Article 17 of the CCP (see paragraph 24 above), only the first domestic court which convicted D.D. examined the matter of compensation (see paragraph 11 above). In its decision of 26 April 2012 rendered in the last set of proceedings, the County Court did not award compensation to the applicant and failed to give any reasons for its choice (see paragraphs 13 and 16 above).", "66. In turn, the Court of Appeal did not examine the merits of the complaint brought before it by the applicant concerning the lower court ’ s omission to award damages (see paragraph 19 above). It did no more than observe that neither the applicant nor the prosecutor requested compensation before the lower court, thus precluding the court from examining that issue. In doing so, the Court of Appeal refrained from examining the extent of the domestic courts ’ own role or that of the prosecutor in securing the applicant ’ s best interests, in particular with regard to the provisions of Article 17 of the CCP.", "67. Moreover, the Court of Appeal ’ s reasoning had no legal foundation (see, mutatis mutandis, Anđelković, cited above, § 27, with further references). In the light of the unequivocal wording of the obligation enshrined in Article 17 of the CCP, the Court of Appeal should have examined on the merits the right to compensation, deciding whether or not the applicant was entitled to an award.", "68. In conclusion, the Court considers that the omission on behalf of the domestic courts to apply Article 17 of the CCP in favour of the applicant and thus examine whether compensation should have been awarded to him amounted to a denial of justice (see, mutatis mutandis, Anđelković, cited above, § 27, and Bochan (no. 2), cited above, § 64).", "69. There has accordingly been a violation of Article 6 § 1 of the Convention. Consequently, the Court dismisses the objection raised by the Government concerning the alleged non-exhaustion of domestic remedies.", "B. Length of the proceedings", "70. Having regard to the finding that a breach of the procedural aspect of Article 3 occurred notably because of the length of the criminal proceedings (see paragraph 5 2 above), the Court considers that there is no need to give a separate ruling on the admissibility and merits of the complaint concerning the alleged violation of the “reasonable time” requirement enshrined in Article 6 § 1 of the Convention (see, among other authorities, Dimitrov and Others v. Bulgaria, no. 77938/11, § 171, 1 July 2014, and, mutatis mutandis, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). ]", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "71. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "72. The applicant claimed 25,00 0 euros (EUR) in respect of non ‑ pecuniary damage.", "73. The Government contested the amount sought.", "74. Having regard to all the circumstances of the present case, the Court accepts that the applicant must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.", "B. Costs and expenses", "75. The applicant claimed EUR 1,326.69 for the costs and expenses incurred before the domestic courts. He also claimed EUR 3,497.5 0 for the costs incurred before the Court, legal fees and secretarial costs; the applicant asked that the relevant sums be paid directly to his counsel (EUR 3,197.5 0 ) and to the Association for the Defence of Human Rights in Romania – the Helsinki Committee (“the APADOR-CH”) (EUR 300).", "76. The Government contested the claim.", "77. In line with its consistent case-law (see, notably, Serban Marinescu v. Romania, no. 68842/13, §§ 78-80, 15 December 2015, and Drăgan v. Romania, no. 65158/09, §§ 99 - 102, 2 February 2016), the Court rejects the claim made by the APADOR-CH, as this association did not represent the applicant in the current proceedings. Regard being had to the documents in its possession, the Court considers it reasonable to award the sum claimed for the costs and expenses incurred before the domestic courts, that is, EUR 1,326.69. It also considers it reasonable to award the sum claimed for the representation of the applicant before it, namely EUR 3,197.5 0, less the sum already received under this head in legal aid (EUR 850 ), making a total of EUR 2,347.50, to be paid directly into the bank account of the applicant ’ s representative (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, § 219, ECHR 2013 ).", "C. Default interest", "78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "10. The applicant was born in 1978 and lives in Unterwagram.", "11. She married E. in 2003. They had two children, A., born in 2004, and B., born in 2005.", "The events leading up to the fatal shooting of the applicant’s sonThe first barring and protection order issued against E. and the ensuing proceedings", "The first barring and protection order issued against E. and the ensuing proceedings", "The first barring and protection order issued against E. and the ensuing proceedings", "12. On 10 July 2010 the applicant called the police because her husband had beaten her. In her statement to the police she alleged that she had problems with her husband and that he had been beating her for years. In the preceding months the situation had worsened because he had a gambling addiction, was heavily in debt and had lost his job. She stated that she had always supported him financially, but had also lost her job and therefore could no longer pay his debts. The police noted that the applicant showed signs of injuries, namely haematomas on her elbow and upper arm, which she stated she had sustained through beatings by her husband.", "13. Pursuant to section 38a of the Security Police Act ( Sicherheitspolizeigesetz – see paragraph 48 below), the police handed the applicant a leaflet informing her, among other things, of the possibility of seeking a temporary restraining order ( einstweilige Verfügung ) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below).", "14. When confronted with the allegations by the police, E. stated that he did not have any problems with his wife, but that he had had a fight with his brother the night before and had sustained injuries to his face. There were no indications that E. was in possession of a weapon. A barring and protection order ( Betretungsverbot und Wegweisung zum Schutz vor Gewalt ) in accordance with section 38a of the Security Police Act was issued against E. This order obliged him to stay away from their common apartment as well as from the applicant’s parents’ apartment and the surrounding areas for fourteen days. It appears that E. complied with the order. The police submitted a report to the public prosecutor’s office ( Staatsanwaltschaft ), which brought criminal charges against E. on 20 December 2010.", "15. On 10 January 2011 the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) convicted E. of bodily harm and making dangerous threats, and sentenced him to three months’ imprisonment, suspended for three years with probation. The applicant refused to testify against E. He was nonetheless found guilty of pushing her against a wall and slapping her, and of threatening his brother and his nephew.", "The second barring and protection order issued against E. and the ensuing proceedings", "16. On Tuesday 22 May 2012 the applicant, accompanied by her counsellor from the Centre for Protection from Violence ( Gewaltschutzzentrum ), went to the St. Pölten District Court ( Bezirksgericht ) and filed for divorce. In her oral hearing before the judge, which was held at 11.20 a.m., she explained that the reasons for the breakdown of the marriage were her husband’s continuous threats and violence against her throughout their marriage. She indicated that on the preceding Saturday the situation had escalated and she had suffered injuries. She added that she was planning to report him to the police and that she hoped that a barring and protection order would be issued against him.", "17. On the same day at 1.05 p.m. the applicant, assisted by her counsellor from the Centre for Protection from Violence, reported her husband to the police for rape and making dangerous threats. She was interviewed by a female police officer who was experienced in handling cases of domestic violence. In her witness statement, the applicant described the following events in detail.", "18. According to the applicant, on Saturday 19 May 2012, when the issue of a possible separation came up, the situation with her husband escalated. She arrived home from work that day at around 3 p.m. Her husband sent the children outside to play, because he said that he wanted to talk to her. He asked her what she was going to do, meaning now that he was gambling again. He thought that it was all her fault. He called her a whore and accused her of seeing other men, since she had not slept with him since February 2012. In the course of the ensuing argument E. repeatedly stated that he could not live without her and the children, and that he would take the children to Turkey. He started choking her and, with his hand still on her throat, pushed her onto the couch. He told her that he was a man and she was a woman, so she was obliged to have sex with him. The applicant told him to stop, but he removed the clothes from the lower part of her body and raped her. She said that he did not hold her tightly during the rape, but she did not resist out of fear of being beaten if she did. After the incident she took a shower, put on her clothes and went to the pharmacy to obtain a contraceptive pill because she was afraid of getting pregnant.", "19. The applicant stated further that E. had behaved violently towards her from the very beginning of their marriage, and that in 2010 he had been issued with a barring and protection order for two weeks because he had injured her. E. had been convicted of bodily harm in relation to that incident, and of making dangerous threats against his brother and nephew. The applicant explained that since 2010 she had been in regular contact with the local Centre for Protection from Violence. Because her husband had subsequently gone to hospital of his own accord to be treated for his gambling addiction and mental problems, she had forgiven him, refused to testify in the criminal proceedings against him and decided to give him another chance. However, the situation had worsened in February 2012, when E.’s gambling addiction had resumed. The applicant explained that after his stay in hospital in 2010 her husband had told her that if he started to gamble again she could leave him. That was why he had been even more aggressive since February 2012 – he feared that she would take him up on his promise. The applicant stated that since the beginning of March 2012 he had been threatening her on a daily basis, always with the same phrases: “I will kill you”, “I will kill our children in front of you”, “I will hurt you so badly that you will beg me to kill you”, “I will hurt your brother’s children if I am expelled to Turkey” (the applicant’s brother lives in Turkey), and “I will hang myself in front of your parents’ door”. She said that she took these threats very seriously, but that she had not previously reported them because she feared that he would act upon them if she did.", "20. The applicant stated that her husband had been beating her regularly, and sometimes slapped the children as well, especially when he came back from the betting shop. For the most part, the children had not sustained any injuries from the slaps in the face; on just one occasion A. had sustained a haematoma on his cheek. She stated that the children were scared of her husband too. She had been thinking about getting a divorce for several months, but she had feared that he would harm her or her children if she did. The applicant added that her husband sometimes took her mobile phone away from her and locked her in their apartment so that she could not leave. She reiterated that she was in great fear of her husband and that she was reporting all this to the police at that stage because she wanted to protect herself and her children.", "21. The police took pictures of the injuries the applicant had sustained (haematomas on her throat and scratches on her chin). A medical examination did not detect injuries in her genital area (see paragraph 28 below).", "22. In accordance with a standard procedure, an online search concerning E. was made by the police in a central electronic database containing the personal data of offenders, including the reasons for and scope of previous barring and protection orders, temporary restraining orders and temporary injunctions. The police also checked the firearms registry to ascertain whether the husband had a gun at his disposal, and the result was negative.", "23. After the applicant had reported the matter to the police, two police officers (one male and one female) took her to the family home, where E. and the children were present. The police officers also spoke to the children, who confirmed that their father beat their mother and had also regularly slapped them.", "24. E. accompanied the police officers voluntarily to the police station. Subsequently, at 4 p.m., he was questioned by the police. E. denied the allegations of violence, rape and threatening behaviour. He admitted that he had had sexual intercourse with his wife on 19 May 2012. However, he contended that sexual contact with his wife had always followed a pattern whereby his wife initially refused but then allowed herself to be persuaded. He explained that he had beaten his wife in the past but had ceased doing so three years earlier.", "25. On the basis of the reported facts and section 38a of the Security Police Act, the police officers issued a barring and protection order against E. at 5.15 p.m. This order obliged him to leave the family home for two weeks and prohibited him from returning to it or the surrounding areas; it also barred him from the applicant’s parents’ apartment and its surrounding areas. His keys to the family home were taken from him.", "26. The applicant was handed a “leaflet for victims of violence”, informing her, among other things, of the possibility of extending the scope of the barring and protection order in time and place by seeking a temporary restraining order ( einstweilige Verfügung ) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below). The applicant was informed in the leaflet that she could turn to the competent District Court for further information on the court proceedings. Moreover, the leaflet stated that a barring order was binding not only for the person posing a threat, but also for the victim, who must not let the person posing a threat back into the apartment, and that the police would check on the observance of the barring order. Lastly, the applicant was informed that her data would be transferred to a Centre for Protection from Violence, and she was provided with contact details of institutions providing counselling for victims of violence.", "27. The police report concerning the barring and protection order described the applicant as “tearful and very scared”. E. was described as “mildly agitated” and “cooperative”. Under the heading “indications of an imminent dangerous attack” ( Merkmale für einen bevorstehenden gefährlichen Angriff ) it stated that a rape had been reported, that there was evidence of violence in the form of haematomas, that there had been continuous threats, and that the children had been slapped regularly. Under the heading “indications of an increased risk from the person posing a threat” ( Merkmale für eine erhöhte Gefährlichkeit des Gefährders ), the police noted:", "(a) known reported/unreported violent acts (not only currently, but also previous incidents);", "(b) escalation (increase in the occurrence and seriousness of violence);", "(c) current stress factors (such as unemployment, divorce, separation from partner/children, and so on); and", "(d) a strong tendency to trivialise/deny violence (violence seen as a legitimate means).", "28. In the evening of 22 May 2012, at 6.10 p.m., the police informed the public prosecutor on duty ( Journalstaatsanwalt ) of the situation in a phone call. In a note added to the file, the public prosecutor wrote the following:", "“The accused is suspected of raping his wife on 19 May 2012, threatening her repeatedly during the marriage and beating her and the children. The wife has pressed charges with the aid of a representative of the Centre for Protection from Violence and a divorce is apparently pending.", "The accused admits having had sexual relations with his wife, but denies the subjective element of the crime. Sexual relations during the marriage [according to him] took place in such a way that his wife repeatedly ‘played hard to get’. He would then keep touching her until he managed to persuade her to have sexual relations. According to him, this was typical behaviour for Turkish women. She had allegedly been saying for ten years that she did not want to have sex with him, but then had sex nonetheless.", "Concerning the injuries, the police officer stated that the woman did not have injuries in her genital area, but had abrasions on her chin. The wife stated that when she had told [the accused] that she did not want to have sexual relations, he had choked her. Finally she had ceased her resistance and allowed intercourse to take place. He did not hold her down and did not use violence during the act, and she did not scream. Since March 2012 he had allegedly been threatening on a daily basis to kill her.", "[The person posing a threat] was issued with a barring and protection order by the police.", "I order that the children be questioned, that reports on the findings of the investigations so far be transmitted, and that [the person posing a threat] be charged while remaining at liberty ( auf freiem Fuß angezeigt ).”", "On the same day, the public prosecutor’s office instituted criminal proceedings against E. on suspicion of rape, bodily harm and making dangerous threats.", "29. From 6.50 p.m. until 7.25 p.m. the children A. and B. were questioned in detail at their grandparents’ home by the police concerning the violence they had been subjected to by their father. A transcript of the questioning was drawn up by the police. The children both confirmed their earlier statements to the effect that E. often slapped and screamed at them and behaved in the same way towards their mother.", "30. At 11.20 p.m. the competent police officer emailed a report on the findings of the criminal investigations concerning the applicant’s husband to the public prosecutor, together with transcripts of the applicant’s, her children’s and E.’s questioning. The report mentioned that a barring and protection order had been issued and, among other things, listed the offences of which E. was suspected (rape, making dangerous threats, and torment or neglect of under-age, young or defenceless persons). Under the heading “Facts”, the situation was described as follows:", "“The suspect has been beating his children and his wife for several years already. On 19 May 2012 the suspect choked his wife, as a result of which she suffered haematomas on her chin and her throat, which have been photographically documented. Then he had intercourse with her, even though she told him repeatedly that she did not want it. Furthermore, for months he has been threatening to kill his wife and their children.”", "31. The police report on the issuance of the barring and protection order containing the list of indications for an elevated risk (see paragraph 27 above) was not sent to the public prosecutor’s office.", "32. On 23 May 2012 the St Pölten Federal Police Department ( Bundespolizeidirektion ) assessed the lawfulness of the issuance of the barring and protection order against E. (under section 38a(6) of the Security Police Act). It found that the evidence showed “coherently and conclusively” ( klar widerspruchsfrei und schlüssig ) that E. had used violence against his family, and that the barring and protection order was therefore lawful.", "33. On 24 May 2012 at 9 a.m. E. went to the police station on his own initiative to enquire whether it would be possible for him to contact his children. The police took the opportunity to question him and to confront him with his children’s statements that he had beaten them. E. confessed that he beat them “every now and then”, but “only as an educational measure”, “not about the face” and “never aggressively”. His wife also slapped them from time to time. He added that his children were everything to him, and that he did not have anyone else but his children. He stated that the day before, he had had a telephone conversation with his daughter and she had wanted to see him. He admitted that he had problems with his wife and that he no longer shared the marital bed but slept on a couch in the living room, because she was “such a cold woman”. He stated that he had not beaten her in the past three years. The police noted in their report that E. did not exhibit any signs of potential for aggression while in the presence of the authorities.", "34. As a consequence of the above-mentioned questioning, additional charges were brought against E. for torment or neglect of under ‑ age, young or defenceless persons, under Article 92 of the Criminal Code. On 24 May 2012 the public prosecutor requested the St Pölten Regional Court to cross ‑ examine ( kontradiktorische Vernehmung ) the applicant and her children, and requested that an expert in child psychology be involved.", "The fatal shooting of the applicant’s son", "35. On 25 May 2012 E. went to A. and B.’s school. He asked A.’s teacher if he could speak briefly to his son in private, because he wanted to give him money. The teacher, who later stated that she had been aware that money had to be paid for some school events but that she had not been informed of the problems in the family, agreed. When A. did not return to class, she started looking for him. She found him in the school’s basement, having been shot in the head. His sister B., who had witnessed her brother being shot, was not injured. E. had gone. An arrest warrant was issued in respect of him immediately. A. was taken to the intensive care unit of the city hospital.", "36. The police questioned several witnesses, including the applicant and her daughter. The applicant stated that E. had always presented “extremely different faces”: towards strangers he had always appeared friendly, but only she had known his “true face”. After the barring and protection order was issued he had called her several times each day. He had wanted to see her and the children together. She had answered that he could of course see the children, but only in the presence of their grandfather. She had also told her children that they could see their father whenever they wanted. She had only preferred to avoid meeting her husband alone with the children, because she was afraid that he would kill the children in front of her. The applicant stated that she had seen her husband in front of the school with his car in the morning, before the shooting. She had been planning to inform the teacher the following day, 26 May 2012, of her family problems.", "37. The applicant’s counsellor from the Centre for Protection from Violence (see paragraphs 46 and 71 below) stated that she had never thought that E. would commit such a crime. A.’s teacher said that she had never noticed any injuries on the boy or any other indications that he could have been a victim of domestic violence. She had never heard of any threats being made against the children. The mother of one of A.’s schoolmates, a nurse, described E. as a “friendly and courteous person”. She had met him an hour before the event in front of the school, and he had greeted her and shaken her hand. A father of another schoolmate had also met E. that morning and described him as “calm and polite”.", "38. On the same day, at 10.15 a.m., E. was found dead in his car. He had committed suicide by shooting himself. From his suicide note dated 24 May 2012, which was found in the car, it became apparent that E. had actually planned to kill both of the children as well as himself. He wrote that he loved his wife and children and could not live without them.", "39. On 27 May 2012 A. succumbed to his injuries and died.", "The official liability proceedings", "40. On 11 February 2014 the applicant instituted official liability proceedings. She contended that the public prosecutor’s office should have requested that E. be held in pre-trial detention on 22 May 2012, after she had reported him to the police. There had been a real and immediate risk that he would reoffend against his family. It should have been clear to the authorities that the barring and protection order had not offered sufficient protection, particularly as the police had known that it could not be extended to cover the children’s school. The applicant claimed 37,000 euros (EUR) in compensation for non-pecuniary damage. She also applied to the court for a declaratory judgment ( Feststellungsbegehren ) that the Republic of Austria was liable for any possible future damage (such as mental and physical problems experienced by the applicant) caused by the murder of her son, which she assessed at EUR 5,000.", "41. On 14 November 2014 the St Pölten Regional Court ( Landesgericht ) dismissed the applicant’s claim. It held that, taking into account the information the authorities had had to hand at the relevant time, there had not been an immediate risk to A.’s life. A barring and protection order had been issued against E., which had required him to stay away from the family home and the applicant’s parents’ apartment, as well as the surrounding areas. E. had never acted aggressively in public before. Even though he had allegedly been issuing threats against his family for years, he had never acted upon them. He had complied with the barring and protection order issued in 2010, and no further misconduct had been reported to the authorities after the incident in 2010 until the applicant had reported him to the police on 22 May 2012. There had not been any indications that E. had had a gun in his possession, or that he had tried to obtain one. Moreover, after the issuance of the barring and protection order, E. had cooperated with the police and had not demonstrated any aggressive behaviour, so the authorities had been able to assume that there would be a reduction in tension. The Regional Court considered it relevant that, at the hearing, the applicant had herself admitted that the police might have had the impression that E. was cooperative and not aggressive. She told the court that her husband had been a good actor and could present himself well. To others he had always been very friendly and kind. She herself had always given him another chance when he showed remorse for his behaviour and promised to do better. The court weighed the applicant’s and her children’s right to be protected against the rights of E. under Article 5 of the Convention, and held that pre-trial detention should only be used as the ultima ratio. A less intrusive measure had been issued instead, namely the barring and protection order with respect to the applicant’s and her parents’ residential premises. The court concluded that the public prosecutor’s office had therefore not acted unlawfully or culpably by not taking E. into pre-trial detention.", "42. The applicant appealed, repeating that the public prosecutor’s office should have been aware that there had been an increased threat of further violent acts by E. since she had filed for divorce. She presented statistics showing that the number of homicides committed between partners was significantly higher during the separation phase of a couple, the phase in which the applicant and E. had found themselves. The applicant asserted that the authorities had been aware that E.’s violence against her had increased since February 2012. In fact, he had specifically threatened that he would kill the children in front of the applicant, and that he would kill her or himself. The applicant also argued that the domestic authorities were under a positive obligation under Article 2 of the Convention to protect her and her children’s lives by making use of criminal-law provisions and the relevant measures under criminal law, which, in her specific situation, could only have meant detention. The barring and protection order as a “less intrusive measure” had not been sufficient as the police could not have extended it to cover the children’s school.", "43. On 30 January 2015 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the public prosecutor’s office had some discretion when deciding on whether to take a person into pre-trial detention. Official civil liability could only be established if the decision had not been justified under the particular circumstances. The starting-point for the evaluation of such a decision was the specific information the authorities had to hand at the time the decision was taken. The public prosecutor’s office had to decide on the basis of the specific information available and the facts of the case before it. In the absence of such information, any general knowledge concerning increased levels of homicide during divorce proceedings was not decisive. What mattered was whether at the relevant time there had been serious reasons to suggest that there was a real and individual risk that E. would commit further serious offences against the applicant and her children. According to the information available to the public prosecutor’s office at the time, and considering that a barring and protection order had already been issued, there had not been sufficiently specific grounds to assume the existence of such a risk, in particular in the public area, for the reasons already set out by the St Pölten Regional Court.", "44. On 23 April 2015 the Supreme Court rejected an extraordinary appeal on points of law by the applicant. Its decision was served on the applicant’s counsel on 16 June 2015." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAWBarring and protection ordersProvisions in force at the relevant time", "Barring and protection ordersProvisions in force at the relevant time", "Provisions in force at the relevant time", "Barring and protection ordersProvisions in force at the relevant time", "Provisions in force at the relevant time", "Provisions in force at the relevant time", "45. Section 22(2) of the Security Police Act (entitled “Preventive protection of legally protected interests”), as in force at the relevant time, stated that “[t]he security authorities [had] to prevent dangerous attacks on life, health, freedom, morality, property or environment, if such attacks [were] likely.” In such cases, the police had an obligation to take appropriate and proportionate protective measures of their own motion if the persons who were attacked or otherwise endangered could not protect themselves. Section 22(3) of the Security Police Act provided that after a dangerous attack, the security authorities had to identify the relevant circumstances. As soon as a particular person was identified as a suspect, they had to act in the interests of the criminal justice system and apply the provisions of the Code of Criminal Procedure (see also Article 18 of the Code of Criminal Procedure).", "46. Section 25 of the Security Police Act provides, under the title “Security Police advice”, that the authorities have a duty to prevent dangerous attacks on life, limb and property by various means and to promote projects which serve to prevent such attacks. Pursuant to section 25(3) of the Security Police Act, as in force at the relevant time, the Federal Minister of the Interior is authorised to contractually commission proven and suitable victim protection institutions to provide advice to victims of domestic violence. At the relevant time and in the case of the applicant, this task was fulfilled by the Centres for Protection from Violence (see paragraphs 16, 17, and 37 above and 71 below).", "47. Under section 38a of the Security Police Act (titled “Barring and protection order” – Betretungsverbot und Wegweisung zum Schutz vor Gewalt ), as in force at the relevant time, the police were authorised to issue a barring and protection order against an alleged perpetrator of domestic violence, if it was to be expected that further violent acts might be committed by him or her. At the time of the material events, such barring and protection orders were limited to the home of the victim and the immediate vicinity, as well as other private places where the victim might regularly be, such as his or her parents’ home.", "48. The relevant parts of section 38a of the Security Police Act, as in force at the relevant time, read as follows:", "“(1) If, on the basis of specific facts, in particular because of a previous dangerous attack, it is to be assumed that a dangerous attack on life, health or freedom is imminent, members of the police force are authorised to ban a person who poses a threat from the home in which an endangered person lives, as well as its immediate surroundings. [The police] have to inform [the person who poses a threat] of the premises to which the ban applies; this area shall be determined in accordance with the requirements of effective preventive protection.", "(2) Under the conditions laid down in subsection (1), the public security authorities are authorised to issue a barring and protection order, which is to be defined in accordance with subsection (1); however, the use of force to enforce this prohibition is not permitted. In the case of a ban prohibiting a person from returning to his or her own home, particular attention must be paid to whether such interference with that person’s private life is proportionate. Members of the police force ... are obliged to give [the person posing a threat] the opportunity ... to inform him or herself about where he or she can find alternative accommodation ...", "...", "(4) Members of the police force are ... obliged to inform the endangered person of the possibility of seeking a temporary restraining order under sections 382b and 382e of the Enforcement Act and of suitable victim protection institutions ...", "...", "(6) The security authorities must be notified immediately of the issuance of a barring and protection order and must review it [as to its legality] within 48 hours ...", "(7) The observance of a barring and protection order must be verified by the public security authorities at least once within the first three days of its entry into force. The barring and protection order shall end two weeks after its issuance, unless a request for a temporary restraining order pursuant to sections 382b and 382e of the Enforcement Act ( Exekutionsordnung ) is submitted within [these two weeks] to the competent court ...”", "49. When deciding on whether to issue a barring and protection order, the police carry out a danger assessment on the spot.", "50. According to statistics published by the Austrian Ministry of the Interior ( Innenministerium ), in 2012 the police issued 7,647 barring and protection orders under section 38a of the Security Police Act.", "51. The relevant parts of section 84 of the Security Police Act as in force at the relevant time read as follows:", "“(1) A person who ...", "2. disregards a barring and protection order issued under section 38a, subsection 2 ... shall be found to have committed an administrative offence and shall be punished by a fine of up to 500 euros, or up to two weeks’ imprisonment in the event of failure to pay.”", "Subsequent amendments in law and practice", "52. As a consequence of the instant case, section 38a of the Security Police Act was amended. From 1 September 2013, the police could also issue barring and protection orders in respect of schools and other childcare facilities attended by endangered children under the age of 14. The relevant parts of section 38a of the Security Police Act, as amended, read as follows:", "“(1) If there is evidence, in particular because of a previous dangerous attack, leading to the necessary assumption that a dangerous attack on life, health or freedom is imminent, members of the police force are authorised to prohibit a person who poses a threat from entering", "1. the home where an endangered person lives, as well as its immediate surroundings;", "2. and also, if the endangered person is under the age of 14, from entering", "(a) a school that the endangered minor attends to fulfil the requirements of compulsory education ... or", "(b) an institutional childcare facility he or she attends, or", "(c) a day nursery he or she attends,", "including an area within a radius of fifty metres.", "(2) ... In the event of a barring and protection order prohibiting a person from returning to his or her own home, it must be ensured in particular that such interference with the private life of the person affected is proportionate. ...", "...", "(4) Members of the police force are further obliged to inform", "1. the endangered person about the possibility of obtaining a temporary restraining order under sections 382b and 382e of the Enforcement Act and of appropriate victim protection facilities ... and", "2. if persons under the age of 14 are endangered, immediately [inform]", "(a) the locally responsible child and youth welfare office for the purposes of section ... and", "(b) the head of any institution for the purposes of subsection 1(2) above for which the ban has been imposed. ...”", "53. On 1 January 2020 section 38a of the Security Police Act was again amended. Barring and protection orders were supplemented by “no-contact orders” ( Annäherungsverbot ), which prohibit an alleged perpetrator of violence from approaching the endangered person(s) within a radius of 100 metres. Schools and other childcare facilities are no longer specifically mentioned, since the person posing a threat is in any event obliged to stay 100 metres away from an endangered child.", "Temporary restraining orders", "54. Victims of violence also had the possibility of requesting the competent district court to issue temporary restraining orders under sections 382b and/or 382e of the Enforcement Act, with a maximum duration of six months and one year respectively. Such orders could be issued for any places deemed necessary in order to protect the victim from the alleged perpetrator – hence not only the home of the endangered person but also schools, workplaces, and so on.", "55. The relevant parts of section 382b of the Enforcement Act (titled “Protection from violence in the home” – Schutz vor Gewalt in Wohnungen ) read as follows:", "“(1) The court shall, in respect of a person who makes continued cohabitation intolerable for another person through physical attack, threats of such an attack, or behaviour seriously affecting [the endangered person’s] mental health, upon an application by [the endangered person],", "1. order such person to leave the home and its immediate vicinity, and", "2. prohibit him or her from returning to the home and its immediate vicinity if the home is the principal and essential residence of the applicant ...”", "56. The relevant parts of section 382c of the Enforcement Act (titled “Procedure and issuance” – Verfahren und Anordnung ), as in force at the relevant time, read as follows:", "“(1) If there is an imminent threat of further endangerment by the person posing a threat, [he or she] shall not be heard before the temporary restraining order is issued, in accordance with section 382b, subsection 1. This may become apparent especially from the security authorities’ report, which the court must acquire of its own motion; the security authorities are obliged to send such reports to the courts immediately. However, [the application] must be served on the respondent immediately, if the application is submitted without undue delay after a barring and protection order has been issued (section 38a, subsection 7, of the Security Police Act) ...", "(3) The following must be notified immediately about the content of the court order deciding on an application for a temporary restraining order in accordance with section 382b and about a court order lifting the temporary restraining order ...", "2. in the event that one of the parties is a minor, the local child and youth welfare authority ...”", "57. The relevant parts of section 382e of the Enforcement Act (titled “General protection from violence” – Allgemeiner Schutz vor Gewalt ) read as follows:", "“(1) The court shall order a person who makes continued cohabitation intolerable for another person through physical attack, threats of such an attack, or behaviour seriously affecting [the endangered person’s] mental health, upon application by [the endangered person],", "1. to stay away from certain designated locations, and", "2. to avoid meeting or contacting the applicant,", "unless this runs counter to the essential interests of [the person posing the threat] ...”", "58. An application for a temporary restraining order under the Enforcement Act, by which a police barring and protection order could be extended in time (section 382b) or in area (section 382e), could be lodged within two weeks of the applicable police order. Although this was not specifically stated in the law, the civil court had to determine a request under section 382e within four weeks at the latest.", "59. As indicated above, under the procedural rule contained in section 382c of the Enforcement Act, the district court had to act “immediately” and refrain from hearing the respondent “if there [was] an imminent threat of further endangerment by the person posing a threat”. According to well-established case-law and legal opinion in Austria, this rule applied also to orders under section 382e of the Enforcement Act, and therefore allowed such an order to be issued immediately after a victim’s complaint about domestic violence. The accused was to be heard only in exceptional cases (Linz Regional Court 15 R 108/06t; Vienna Regional Court 45 R 478/06m, 42 R 573/01b: EFSlg 98.711,115.566-115.568; Linz Regional Court 15 R 125/18k: EFSlg 159.356; Supreme Court 3 Ob 198/08a). The domestic courts’ case ‑ law, and legal opinion, have unanimously considered that a restraining order must be issued without hearing the respondent if the effectiveness of the measure “depends on an immediate decision”. In practice, the domestic courts regularly made use of this rule and issued restraining orders at the same time as informing the respondent of the application, in order to prevent the purpose of the protection measure from being frustrated (see, for example, Supreme Court 1 Ob 156/10p, 2 Ob 140/10t, 4 Ob 119/14z, 7 Ob 185/17g, and Wels Regional Court 21 R 65/12a EFSlg 136.516). The right of the respondent to be heard is safeguarded by the possibility of making an objection ( Widerspruch ), a special remedy set out in section 397 of the Enforcement Act.", "60. Since 1 September 2013, pursuant to Article 211 § 2 of the Civil Code, the Youth Welfare Office ( Kinder- und Jugendhilfeträger – “the YWO”) must be informed by the police if a barring and protection order has been issued in respect of a household where children are present. The YWO is authorised to lodge applications for temporary restraining orders under sections 382b and 382e of the Enforcement Act on behalf of endangered children, if their guardian fails to do so.", "Risk assessment methods and case conferences", "61. In 2011 the so-called MARACs (Multi-Agency Risk Assessment Conferences; see also paragraph 88 below) were created in Vienna, with the participation of members of the Vienna police, officials from the justice system, women’s safety organisations, organisations for migrants, NGOs working with offenders, and other relevant stakeholders. The objectives of MARACS were systematic, coordinated risk assessments and safety planning. Similar multi-agency pilot projects were conducted in two other provinces of Austria in 2015. In 2017 and 2018 the project was evaluated by the Ministry of the Interior, which resulted in the discontinuation of the authorities’ participation in the MARACs. It appears that NGOs and victim protection organisations continue to hold these conferences.", "62. A risk assessment tool called SALFAG ( Situationsanalyse bei familiärer und Beziehungsgewalt – Analysis of situations of violence within the family and relationships) was developed by psychologists at the request of the Ministry of the Interior and was tested in three regions of Austria between November 2013 and June 2014. It appears that the use of this tool was discontinued after its evaluation.", "63. According to a decree issued by the Ministry of Justice on 3 April 2019, entitled “Directives for the prosecution of offences within the close social sphere” ( Richtlinien zur Strafverfolgung bei Delikten im sozialen Nahraum ), in April 2017 the Ministry of Justice and the Vienna Intervention Centre against Violence within the Family ( Wiener Interventionsstelle gegen Gewalt in der Familie – “the Intervention Centre”) reached an agreement according to which, in all cases of domestic violence within the Vienna area, henceforth (1) the police had to inform the public prosecutor’s office of any barring and protection orders that were issued and forward all relevant documents; (2) a danger assessment questionnaire had to be filled in by the Intervention Centre and sent to the police, who were then obliged to consult the Intervention Centre regarding the further approach and investigation; and (3) the “danger assessment tool” used by the Intervention Centre had to be forwarded to the senior public prosecutor’s office ( Oberstaatsanwaltschaft ) by the Ministry of Justice.", "64. On 1 January 2020 section 22(2) of the Security Police Act was amended and the possibility of calling a security police case conference ( Sicherheitspolizeiliche Fallkonferenz ) was established. The purpose of such conferences is for the police to be able to coordinate their response with other relevant authorities in cases where an identified person is likely, on the basis of a previous dangerous attack, to again commit a serious crime against the life, health, freedom or decency of another person.", "Grounds for arrest and pre-trial detention", "65. Article 170 of the Code of Criminal Procedure (included in the chapter on “Arrest”) reads as follows:", "“(1) Arresting a person suspected of having committed an offence is permitted:", "1. if the person has been caught in the act of committing an offence or is plausibly suspected of committing the offence, or is caught with items indicating the person’s involvement in the offence;", "2. if the person has fled or is in hiding or if there is evidence of a risk that the person will flee or go into hiding;", "3. if the person tries to influence witnesses, expert witnesses or co-suspects, remove evidence of the offence, or hinder the establishment of the truth in any other way or if there is specific factual evidence that there is a risk that the person will try do so;", "4. if the person is suspected of having committed an offence which is punishable by imprisonment exceeding six months or if there is specific factual evidence leading to an assumption that he or she will commit such an offence, directed against the same legally protected interest, or that he or she will carry out the attempted or threatened act (Article 74 § 1 (5) of the Criminal Code).", "(2) If the offence is punishable by imprisonment for at least ten years, arrest must be ordered, unless it can be assumed, on the basis of factual evidence, that all the grounds for arrest laid down in paragraph 1 (2) to (4) can be excluded.", "(3) Arrest and detention may not be ordered if they are disproportionate to the significance of the case (Article 5).”", "66. The relevant parts of Article 171 of the Code of Criminal Procedure, as in force at the relevant time, read as follows:", "“(1) The arrest must be carried out by the police on the basis of a warrant issued by the public prosecutor’s office which has been approved by a court.", "(2) The police may arrest a suspect of their own motion:", "1. in the cases referred to in Article 170, paragraph 1 (1), and", "2. in the cases referred to in Article 170, paragraph 1 (2) to (4), if, owing to imminent danger, an order from the public prosecutor’s office cannot be obtained in time.", "(3) In the case of an arrest pursuant to paragraph 1, the suspect must be served with the court approval of the arrest immediately or within twenty-four hours after the arrest; in the case of an arrest pursuant to paragraph 2 a written police statement disclosing the strong suspicion of the offence and the grounds for the arrest [must be issued to the suspect]. Furthermore, the suspect must be informed at once, or immediately after his or her arrest, that he or she has the right:", "1. to notify a relative or any other trusted person and defence counsel of his or her arrest, or have them so notified ...;", "2. to request the appointment of legal-aid defence counsel where applicable;", "3. to lodge a complaint or an appeal against his or her arrest and to request his or her release at any time.”", "67. The relevant parts of Article 173 of the Code of Criminal Procedure (listed in the chapter on “Pre-trial detention”), as in force at the relevant time, read as follows:", "“(1) The ordering and extension of pre-trial detention is permitted only at the request of the public prosecutor’s office and only if the accused is strongly suspected of a specific criminal offence and has been questioned by the court on the matter as well as on the preconditions for pre-trial detention, and one of the reasons for detention listed in paragraph 2 is present. It may not be ordered or extended if it is disproportionate to the importance of the matter or the expected punishment, or if its purpose can be achieved through the use of more lenient measures (paragraph 5).", "(2) A ground for detention is given if, on the basis of specific facts, there is a risk that at liberty the suspect would:", "1. flee or go into hiding owing to the nature and extent of the expected punishment or for other reasons;", "2. influence witnesses, expert witnesses or co-suspects, remove evidence of the offence, or hinder the establishment of the truth in any other way;", "3. despite the fact that proceedings concerning an offence punishable by imprisonment exceeding six months have been instituted against [the suspect],", "a. commit a criminal offence entailing serious consequences, directed against the same legally protected interest as the criminal offence entailing serious consequences of which he or she is suspected,", "b. commit a criminal offence entailing not only minor consequences, directed against the same legally protected interest as the offence of which he or she is suspected, if he or she has previously been convicted or is currently suspected of having repeatedly or continually committed such offences,", "c. commit a criminal offence punishable by imprisonment exceeding six months, which is directed against the same legally protected interest as the criminal offence of which he or she is suspected and in respect of which he or she has been convicted twice previously, or", "d. carry out the attempted or threatened act (Article 74, paragraph 1 (5), of the Austrian Criminal Code) of which he or she is suspected.", "(3) A risk of flight shall in any case not be assumed if the person concerned is suspected of a criminal offence that is not punishable by imprisonment exceeding five years, is in a stable living environment and has a permanent residence in Austria, unless he or she has already made arrangements to flee. When assessing whether the suspect will commit an offence pursuant to paragraph 2 (3), the fact that he or she poses a threat to life and limb of a person or presents a risk of committing crimes in a criminal organisation or terrorist association shall carry particular weight. Apart from this, the assessment of this ground for detention shall take into consideration to what extent such risk has been reduced by a change in the circumstances under which the offence of which he or she is suspected was committed.", "...", "(5) More lenient measures include, in particular:", "1. a pledge not to flee or go into hiding or leave [the suspect’s] place of residence without permission from the public prosecutor’s office until the final conclusion of the criminal proceedings;", "2. a pledge not to attempt to hinder the investigations;", "3. in cases of domestic violence (section 38a of the Security Police Act), a pledge to refrain from any contact with the victim and to comply with any instruction not to enter a specific home or its immediate surroundings or with an existing barring and protection order pursuant to section 38a, subsection 2, of the Security Police Act or an existing temporary restraining order pursuant to section 382b Enforcement Act, including the removal of all keys to the home [from the suspect];", "4. an instruction to live at a certain place, with a certain family, to stay away from certain homes, certain places or certain people, to refrain from consuming alcohol or other addictive substances, or to have steady employment;", "5. an instruction to report any change of residence or to report to the police or another authority at certain intervals ...”", "68. In accordance with Article 173 § 2 of the Code of Criminal Procedure, the factual assumptions regarding a ground for detention must be based on “specific facts” which must result from the individual case. General experience is not sufficient (Supreme Court RS0118185; 13 Os 146/11m, 11 Os 84/08z, 14 Os 5/08d, 15 Os 73/06h). As such, not only external, but also so-called “internal” facts must be taken into account; character traits and features of the accused may constitute such facts (see JAB 512 BlgNR, 12. GP, page 9; Supreme Court 11 Os 31/08f and 12 Os 7/10m). For example, “the fact, based on experience, that the accused flees more often than not and the fact that the accused is likely to face a severe punishment in the specific case” are not in themselves apt to form the basis for an assumption of a flight risk (RV 39 BlgNR12. GP, page 24). The assumption of the risk of an offence being committed requires not the mere possibility, but the concrete probability, of the future commission of an offence (Supreme Court 14 Os 36/14x, 11 Os 119/03 and 13 Os 19/98; see also Nimmervoll, Strafverfahren, 2nd edition, Chapter III, paragraph 613).", "69. More lenient measures (as mentioned in Article 173 §§ 1 and 5 of the Code of Criminal Procedure, cited above), in so far as they go beyond the barring and protection orders provided for under the Security Police Act and the temporary restraining orders under the Enforcement Act, may only be imposed if grounds for pre-trial detention under Article 173 § 2 (1) ‑ (3) of the Code of Criminal Procedure are made out. More lenient measures may only replace detention if, when viewed in the light of reality, such measures can effectively prevent the grounds for detention from materialising. In contrast to other procedural principles which do not require a negative justification, a decision not to apply more lenient measures must be specifically justified (Article 174 § 3 (4) of the Code of Criminal Procedure [see Nimmervoll, Strafverfahren, 2nd edition, Chapter XI, paragraph 635]; see also Supreme Court 11 Os 131/93).", "70. According to statistics of the Austrian Federal Ministry of Justice ( Bundesministerium für Justiz ), pre-trial detention was ordered 8,640 times in 2012. Some 470 of these cases concerned offences against personal freedom, and 389 concerned offences against life and limb.", "Centres for Protection from Violence ( Gewaltschutzzentren )", "71. Advice to victims of violence is provided by officially authorised “Centres for Protection from Violence” (see section 25 of the Security Police Act, paragraph 46 above). These centres are specialised private-law organisations which are commissioned and funded by the government, on the basis of contracts, for the comprehensive and individualised support of victims of domestic violence. There is a Centre for Protection from Violence in each province ( Land ), while the capital has the Vienna Intervention Centre ( Interventionsstelle Wien ). Their central task is to protect victims of violence and to increase their safety. This support is free of charge and confidential. Victims can contact these Centres for Protection from Violence directly. If the police issue a barring and protection order, these institutions actively contact the victim(s).", "72. The services offered by the Centres for Protection from Violence/Intervention Centre include: assistance with a view to increasing the protection and safety of women and their children, implementation of security measures and risk assessments; information and support, especially after a police intervention; assistance in formulating and submitting applications to the court as well as in contacts with the authorities; accompaniment to police hearings and court hearings; psychosocial and legal process support; if necessary, referral to other facilities (women’s shelters, women’s and family counselling centres, child protection centres, psychotherapists, and so on); counselling in the person’s mother tongue as needed or involvement of interpreters.", "International law and practiceCouncil of EuropeCommittee of Ministers’ Recommendation Rec(2002)5 of 30 April 2002", "Council of EuropeCommittee of Ministers’ Recommendation Rec(2002)5 of 30 April 2002", "Committee of Ministers’ Recommendation Rec(2002)5 of 30 April 2002", "Council of EuropeCommittee of Ministers’ Recommendation Rec(2002)5 of 30 April 2002", "Committee of Ministers’ Recommendation Rec(2002)5 of 30 April 2002", "Committee of Ministers’ Recommendation Rec(2002)5 of 30 April 2002", "73. In its recommendation on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention.", "74. With regard to domestic violence, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas. They should also penalise all breaches of the measures imposed on the perpetrator and establish a compulsory protocol so that the police and medical and social services follow the same procedure.", "The Istanbul Convention", "75. The Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”) was signed by Austria on 11 May 2011, ratified on 14 November 2013 and entered into force in respect of Austria on 1 August 2014. The Istanbul Convention incorporates the standards set out in the Committee of Ministers’ Recommendation Rec(2002)5 to member States on the protection of women against violence.", "76. The Istanbul Convention outlines the obligations of States Parties to take the necessary measures to protect women against all forms of violence, and to prevent, prosecute and eliminate violence against women and domestic violence. In the preamble, the States Parties recognise “the structural nature of violence against women as gender-based violence, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men”. They further recognise that while men may also be victims of domestic violence, it affects women disproportionately. The term “women” includes girls under the age of 18 (Article 3 of the Istanbul Convention). Moreover, it is recognised that children are victims of domestic violence too, including as witnesses of violence in the family.", "77. Article 2 states that the Istanbul Convention applies to all forms of violence against women, including domestic violence, which affects women disproportionately, but that the States Parties are encouraged to apply it to all victims of domestic violence.", "78. Article 3 of the Istanbul Convention defines “violence against women” as", "“... a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”", "79. “Domestic violence” is defined by the same Article as “all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim”.", "80. Pursuant to Article 5 § 2 of the Istanbul Convention, States Parties are required to take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of the Istanbul Convention which are perpetrated by non-State actors.", "81. Article 15 of the Istanbul Convention stresses the importance of providing or strengthening training for professionals dealing with victims or perpetrators of domestic violence, on the prevention and detection of such violence, equality between women and men, the needs and rights of victims and how to prevent secondary victimisation.", "82. The following provisions of the Istanbul Convention are also relevant to the instant case:", "Chapter IV – Protection and support", "Article 18 – General obligations", "“1. Parties shall take the necessary legislative or other measures to protect all victims from any further acts of violence.", "2. Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co‐operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non‐governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services as detailed in Articles 20 and 22 of this Convention.", "...”", "Chapter VI – Investigation, prosecution, procedural law and protective measures", "Article 49 – General obligations", "“1. Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.", "2. Parties shall take the necessary legislative or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences established in accordance with this Convention.”", "Article 50 – Immediate response, prevention and protection", "“1. Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by offering adequate and immediate protection to victims.", "2. Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies engage promptly and appropriately in the prevention and protection against all forms of violence covered by the scope of this Convention, including the employment of preventive operational measures and the collection of evidence.”", "Article 51 – Risk assessment and risk management", "“1. Parties shall take the necessary legislative or other measures to ensure that an assessment of the lethality risk, the seriousness of the situation and the risk of repeated violence is carried out by all relevant authorities in order to manage the risk and if necessary to provide co-ordinated safety and support.", "2. Parties shall take the necessary legislative or other measures to ensure that the assessment referred to in paragraph 1 duly takes into account, at all stages of the investigation and application of protective measures, the fact that perpetrators of acts of violence covered by the scope of this Convention possess or have access to firearms.”", "83. In relation to Article 51 of the Istanbul Convention (Risk assessment and risk management), the Explanatory Report to the Istanbul Convention states the following:", "“260. Concerns for the victim’s safety must lie at the heart of any intervention in cases of all forms of violence covered by the scope of this Convention. This article therefore establishes the obligation to ensure that all relevant authorities, not limited to the police, effectively assess and devise a plan to manage the safety risks a particular victim faces on a case-by-case basis, according to standardised procedure and in co-operation and co-ordination with each other. Many perpetrators threaten their victims with serious violence, including death, and have subjected their victims to serious violence in the past. It is therefore essential that any risk assessment and risk management consider the probability of repeated violence, notably deadly violence, and adequately assess the seriousness of the situation.", "261. The purpose of this provision is to ensure that an effective multi-agency network of professionals is set up to protect high-risk victims. The risk assessment must therefore be carried out with a view to managing the identified risk by devising a safety plan for the victim in question in order to provide co-ordinated safety and support if necessary.", "262. However, it is important to ensure that any measures taken to assess and manage the risk of further violence allow for the rights of the accused to be respected at all times. At the same time, it is of paramount importance that such measures do not aggravate any harm experienced by victims and that investigations and judicial proceedings do not lead to secondary victimisation.", "263. Paragraph 2 extends the obligation to ensure that the risk assessment referred to in the first paragraph of this article duly takes into account reliable information on the possession of firearms by perpetrators. The possession of firearms by perpetrators not only constitutes a powerful means to exert control over victims, but also increases the risk of homicide. ...”", "84. Article 52 of the Istanbul Convention deals with emergency barring orders:", "Article 52 – Emergency barring orders", "“Parties shall take the necessary legislative or other measures to ensure that the competent authorities are granted the power to order, in situations of immediate danger, a perpetrator of domestic violence to vacate the residence of the victim or person at risk for a sufficient period of time and to prohibit the perpetrator from entering the residence of or contacting the victim or person at risk. Measures taken pursuant to this article shall give priority to the safety of victims or persons at risk.”", "85. The Explanatory Report (paragraph 264) states that in situations of immediate danger, the most effective way of guaranteeing the safety of a domestic violence victim is by achieving physical distance between the victim and the perpetrator. It clarifies (in paragraph 265) that the term “immediate danger” in Article 52 of the Istanbul Convention refers to any situations of domestic violence in which harm is imminent or has already materialised and is likely to happen again.", "86. Article 53 of the Istanbul Convention concerns restraining or protection orders:", "Article 53 – Restraining or protection orders", "“1. Parties shall take the necessary legislative or other measures to ensure that appropriate restraining or protection orders are available to victims of all forms of violence covered by the scope of this Convention.", "2. Parties shall take the necessary legislative or other measures to ensure that the restraining or protection orders referred to in paragraph 1 are:", "– available for immediate protection and without undue financial or administrative burdens placed on the victim;", "– issued for a specified period or until modified or discharged;", "– where necessary, issued on an ex parte basis which has immediate effect;", "– available irrespective of, or in addition to, other legal proceedings;", "– allowed to be introduced in subsequent legal proceedings.", "...”", "87. GREVIO is the independent expert body responsible for monitoring the implementation of the Istanbul Convention by the Parties. It publishes reports evaluating legislative and other measures taken by the Parties to give effect to the provisions of the Convention. GREVIO may also adopt, where appropriate, general recommendations on themes and concepts of the Convention.", "88. GREVIO published its first baseline evaluation report on Austria on 27 September 2017. The executive summary (page 6) “highlights a number of positive legal and policy measures in place in Austria and welcomes its long history of policy-making in the area of violence against women. In particular, GREVIO values the strong leadership Austria has shown in the past 20 years in introducing a system of emergency barring and protection orders for victims of domestic violence. Today, this system is well established and is widely considered a success”. The executive summary also mentions “a number of issues where improvement is warranted in order to reach higher levels of compliance with the requirements of the Istanbul Convention”.", "The passages of the baseline evaluation report relevant to the present case read as follows:", "“A. Immediate response, prevention and protection (Article 50)", "...", "154. A separate issue that arises at the investigative stage in domestic violence cases is that of pre-trial detention. Austrian criminal procedural law envisages pre-trial detention on three specific grounds: (i) flight risk, (ii) risk of collusion or (iii) risk of re-offending if the offence in question carries a prison term of more than six months. From the information obtained by GREVIO it emerges that this is rarely made use of by prosecution services as they rarely consider any of the three grounds applicable. The specialist support and counselling services, however, repeatedly pointed out that even in cases of severe violence and threat where a woman and her children are clearly at risk, prosecution services rely on a (civil law) protection order to ensure their safety rather than opting for pre-trial detention. Whether the reasons lie in an over-reliance on the system of emergency barring and protection orders, short ‑ comings in how the risk to an individual victim is assessed, or general attitudes regarding domestic violence and the seriousness of threats made in such a context, GREVIO is of the opinion that this practice should be re-assessed. ... This is urgently needed in view of another recent case which led to the death of a woman under an emergency barring order and where pre-trial detention was not ordered despite several requests by the Victim Protection Centre acting on her behalf. ...", "155. GREVIO strongly encourages the Austrian authorities to:", "a. take further measures to improve the collection of evidence in cases of domestic violence, stalking, forced marriage, female genital mutilation, rape and sexual violence, so that reliance on the victim’s testimony is lessened;", "b. step up measures to assess the real risk of re-offending in domestic violence cases in order to make more appropriate use of pre-trial detention where warranted.", "...", "B. Risk assessment and risk management (Article 51)", "170. A risk assessment tool for use by the law enforcement agencies has recently been developed by the Federal Ministry of Interior. Its aim is to standardise the assessment of risks in domestic violence cases. It has been tested in a pilot phase in some provinces of Austria and it is now ready for implementation across the country. In addition, some parts of Austria have introduced multi-agency risk assessment procedures or tools in the form of regular meetings or case conferences. Some law enforcement agency districts use MARACs (Multi-Agency Risk Assessment Conference), and representatives of various agencies regularly attend. In Styria, risk assessment is mainly done by the violence protection centre on the basis of DyRIAS (Dynamic Risk Assessment System). This IT-based system is highly respected for its thoroughness and law enforcement agencies and prosecution services take the results extremely seriously and frequently order pre-trial detention on that basis.", "C. Emergency barring and protection orders (Article 52); (Article 53)", "171. Since the introduction of emergency barring orders in 1997 Austria has been widely known for its leadership in this field. ... Moreover, the standards set in Articles 52 and 53 of the Convention were very much inspired by the Austrian model of emergency barring and protection orders. GREVIO welcomes this pioneering role and congratulates the Austrian authorities on the wide level of implementation of barring and protection orders, including the use of emergency barring orders as a preventive measure exercised by the law enforcement agencies.", "172. The system currently in existence in Austria consists of police-ordered two ‑ week bans on perpetrators of domestic violence to enter the residence of the victim(s). In addition and upon application by the victim, a protection order may be issued by a civil law court (family courts division) for up to 12 months. Interestingly, these are not usually general contact bans but “no-go orders”, banning a perpetrator from entering certain premises. As a result, protection is linked to places that victims frequent rather than the victim as such. ...", "173. Linking protection to places rather than people bears the risk of gaps inherent to any enumerative approach. Such gaps have led to tragic cases in the past, inspiring the legislators to include (in addition to the home) educational institutions and child ‑ care facilities in the list of places in respect of which a ban may be issued. While GREVIO welcomes the political will to close existing gaps, it considers that general no-contact orders are the better approach.", "...", "176. Another issue GREVIO would like to raise is the protection of children under domestic violence barring and protection orders. Below the age of 14, they are automatically included in any emergency barring or protection order banning a perpetrator from the family home, whether they are directly or indirectly affected by the violence. The protection obtained through a ban issued in protection of their mother does not, however, extend automatically to the children’s school or childcare facility. This has to be specifically applied for.", "...”", "89. In its report on Austria, GREVIO further noted that legal professionals, in particular judges and prosecutors, did not receive initial or in-service training on violence against women as a form of gender-based violence, and held that this should be addressed. As the quality of investigations and the evidence collected impacts significantly on the level and outcome of prosecution and the number of convictions, GREVIO’s report on Austria also highlights the fact that the very low number of convictions in relation to violence against women, including domestic violence, compared to the number of reported cases of violence against women, raises issues regarding the role of the prosecution services in relation to their due diligence obligation as set out in Article 5, paragraph 2, of the Istanbul Convention.", "90. On 1 September 2017 the Austrian Government submitted comments in reply to GREVIO’s baseline report, prior to the publication of that report. In relation to GREVIO’s recommendation to step up measures to assess the real risk of reoffending in domestic violence cases (paragraph 155 of the baseline report – see paragraph 88 above), the Government stated the following:", "“Austria recognises the need to further improve assessment of the real risk of re ‑ offending in domestic violence cases and would like to draw attention to the following measures:", "The Ministry of Interior Affairs is presently implementing a standardised risk assessment tool that will be applied by law enforcement officers throughout Austria. The respective assessment results will be made available to the public prosecutor in charge.", "Moreover, the Ministry of Justice is presently analysing the recent case referred to in paragraph 154 [of the GREVIO baseline report on Austria] ... and assessing the use of pre-trial detention. In addition, a meeting with representatives of Violence Protection Centres, police authorities, the Public Prosecution Authority of Vienna and the Senior Prosecution Authority of Vienna in the Ministry of Justice on 20 April 2017 resulted in an agreement to improve information exchange and communication between Violence Protection Centres, police and public prosecution on the risk of re-offending in order to ensure an immediate follow-up to risk assessments undertaken by Violence Protection Centres and to try to develop a common understanding of risk factors for re-offending based on indicators that will be provided by the Violence Protection Centres. ...”", "United NationsConvention on the Elimination of All Forms of Discrimination against Women", "Convention on the Elimination of All Forms of Discrimination against Women", "Convention on the Elimination of All Forms of Discrimination against Women", "91. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly. In 1992, the Committee on the Elimination of Discrimination against Women (“the CEDAW Committee”) adopted General Recommendation No. 19 on violence against women [1]. Austria ratified CEDAW on 31 March 1982 and the Optional Protocol to the Convention on 6 September 2000.", "92. In the case of Şahide Goekce v. Austria (CEDAW/C/39/D/5/2005, 6 August 2007), which concerned the killing of Mrs Goekce by her husband in front of their two daughters, the CEDAW Committee found that the State Party had breached its due diligence obligation to protect Şahide Goekce, as the police had failed to respond immediately to an emergency call made by her a few hours before she was killed. Austria had thus violated the rights of the deceased Şahide Goekce to life and physical and mental integrity under Article 2 (a) and (c) to (f), and Article 3 of the CEDAW read in conjunction with Article 1 of the CEDAW and General Recommendation No. 19 of the CEDAW Committee. In addition, the CEDAW Committee made the following remarks on why the public prosecutor should not have denied two requests by the police to detain Mr Goekce on previous occasions:", "“12.1.5 Although the State party rightly maintains that it is necessary in each case to determine whether detention would amount to a disproportionate interference in the basic rights and fundamental freedoms of a perpetrator of domestic violence, such as the right to freedom of movement and to a fair trial, the Committee is of the view ... that the perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity. ...”", "93. On 30 July 2019 the CEDAW Committee published its “Concluding observations on the ninth periodic report of Austria” (CEDAW/C/AUT/CO/9). In relation to “Gender-based violence against women”, it noted and recommended the following:", "“22. The Committee welcomes the adoption by the State party of the Protection against Violence Law and the creation of the Inter-Ministerial Working Group on the Protection of Women against Violence. The Committee notes the following with concern, however:", "(a) The high number of femicides in the State party and the lack of comprehensive and updated statistical data on the phenomenon;", "(b) The underreporting of domestic violence against women and the low prosecution and conviction rates, resulting in impunity for perpetrators;", "...", "23. Recalling the relevant provisions of the Convention and the Committee’s general recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19, the Committee recommends that the State party:", "...", "(b) Monitor and assess the responsiveness of the police and the judiciary in cases of sexual crimes and introduce mandatory capacity-building for judges, prosecutors, police officers and other law enforcement officers on the strict application of criminal law provisions on gender-based violence against women and on gender-sensitive investigation procedures;", "...;", "(d) Reinforce the protection and assistance provided to women who are victims of gender-based violence, including by strengthening the capacity of shelters and ensuring that they meet the needs of victims and cover the entire territory of the State party and strengthen financial support to and cooperation with non-governmental organizations providing shelter and rehabilitation to victims;", "...”", "Convention on the Rights of the Child", "94. The United Nations Convention on the Rights of the Child of 20 November 1989, ratified by Austria on 6 August 1992, also recognises the right of children to be protected from domestic abuse and urges States to put in place adequate procedures and mechanisms to deal with the matter:", "Article 19", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "European Union Material", "95. On 8 December 2008 the Council of the European Union (EU) adopted EU guidelines on violence against women and girls. The document describes violence against women as one of the major human rights violations of today and focuses on reminding States of their dual responsibility to prevent and respond to violence against women and girls. Physical, sexual and psychological violence occurring within the family is mentioned specifically as a form of violence against women and girls.", "96. The EU guidelines on violence against women and girls also highlight the following:", "“3. ... The EU reiterates the three indissociable aims of combating violence against women: prevention of violence, protection of and support for victims and prosecution of the perpetrators of such violence.", "...", "3.1.4. ... The EU will emphasise that it is essential for States to ensure that violence against women and girls is punished by the law and to see that perpetrators of violence against women and girls are held responsible for their actions before the courts. States must in particular investigate acts of violence against women and girls swiftly, thoroughly, impartially and seriously, and ensure that the criminal justice system, in particular the rules of procedure and evidence, works in a way that will encourage women to give evidence and guarantee their protection when prosecuting those who have perpetrated acts of violence against them, in particular by allowing victims and their representatives to bring civil actions. Combating impunity also involves positive measures such as the training of police and law enforcement officers, legal aid and proper protection of victims and witnesses and the creation of conditions where the victims are no longer economically dependent on the perpetrators of violence.”", "97. According to the publication “Violence against women: an EU-wide survey” containing the findings of a survey carried out by the European Union Agency for Fundamental Rights (FRA) between March and September 2012 (published in 2014), based on interviews with 42,000 women across the then 28 member States,", "“... one in 10 women has experienced some form of sexual violence since the age of 15, and one in 20 has been raped. Just over one in five women has experienced physical and/or sexual violence from either a current or previous partner, and just over one in 10 women indicates that they have experienced some form of sexual violence by an adult before they were 15 years old. Yet, as an illustration, only 14% of women reported their most serious incident of intimate partner violence to the police, and 13% reported their most serious incident of non-partner violence to the police.”", "98. As regards Austria, the survey found in particular that 13% of Austrian women stated that they had suffered physical and/or sexual violence at the hands of a partner, while 38% of Austrian women stated having suffered some form of psychological violence at the hands of a partner. For 8% of Austrian women the psychological abuse involved threats or actual acts by a partner to hurt children.", "Comparative law", "99. According to the comparative-law data available to the Court concerning the legislation of forty-two Council of Europe member States (Albania, Andorra, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, the Republic of Moldova, Romania, the Russian Federation, San Marino, Serbia, the Slovak Republic, Slovenia, Spain, Switzerland, Turkey, Ukraine and the United Kingdom), all the member States surveyed have a number of protective and/or preventive measures set out in various legal provisions (criminal, civil and/or administrative law) applicable in the context of domestic violence. Twenty-eight member States have enacted specific laws on domestic violence. Barring and/or restraining orders are the main protective/preventive measures available. Other protective/preventive measures include the placement of the victim and other family members in shelters (fourteen member States), specific measures aimed at teaching perpetrators of domestic violence about non-violent behaviour (seven member States), and a prohibition on carrying weapons (seven member States).", "100. Twenty-nine member States mentioned specific protective and/or preventive measures applicable to children in the context of domestic violence. These measures include the possibility of restricting or removing parental authority and/or placing children in foster care (twenty-three member States) and limiting contact between children and perpetrators (seventeen member States). In twelve member States the protective/preventive measures applied to children included limiting the perpetrator’s contact with the victim’s children in specific geographical locations, for example their schools. Children and their best interests are taken into account in risk assessments in all the member States surveyed.", "101. When the authorities are confronted with a situation of domestic violence, some sort of risk assessment is carried out in all of the member States surveyed in order to determine whether or not the victim is at risk of further violence. In the majority of the member States surveyed the risk assessment is made, first and foremost, by the police, often together with the judicial authorities and social services. In five member States the risk assessment is carried out only by judges. At least twelve member States use general risk-assessment standards. Standardised tools specifically designed for domestic violence cases are used in risk assessments in twenty-six member States. In this connection, some member States apply internationally developed standards, including the Spousal Assault Risk Assessment (SARA) and the Dynamic Risk Analysis System (DyRiAs). Others appear to have developed their own detailed risk assessment standards.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "102. Relying on Articles 2, 3 and 8 of the Convention, the applicant complained, firstly, that the Austrian authorities had failed to protect her and her children from her violent husband. She emphasised that she had explicitly mentioned in her report to the police that she feared for her children’s lives. Nonetheless, they had not been listed as endangered persons in the police report. The authorities had had all the relevant information to make them aware of the increased risk of further criminal offences by E. against his family, but had failed to take effective preventive measures. She argued that her husband should have been taken into pre-trial detention.", "103. Secondly, the applicant complained that the legal framework for the protection of children in the context of domestic violence had been insufficient, as at the relevant time barring and protection orders could not be extended to childcare facilities, a fact which had left her children unprotected at their school. This was a negligent omission and, as such, a breach of Article 2.", "104. Having regard to its current case-law and the nature of the applicant’s complaints, the Court, being master of the characterisation to be given in law to the facts of a case, considers that the issues raised in the present case should be examined solely from the perspective of the substantive aspect of Article 2 of the Convention (compare Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 81, 31 January 2019; see also § 49 of the Chamber judgment). Article 2, in so far as relevant, reads as follows:", "“1. Everyone’s right to life shall be protected by law. ...”", "The Government’s preliminary objectionThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "105. The Government reiterated the objection they had raised before the Chamber (see § 51 of the Chamber judgment). They submitted that the complaint concerning the allegedly insufficient legislative framework for the protection of the applicant’s children was inadmissible for non ‑ exhaustion of domestic remedies. While it was true that the barring and protection order issued by the police could not, at the relevant time, have been extended to the children’s school, it had been open to the applicant to apply to the competent district court for a temporary restraining order under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. above). Such an order would have been an effective remedy capable of averting any danger at the applicant’s children’s school. An application to that effect could be lodged at the competent district court every working day during business hours. It was inherent in a restraining order that it must be issued promptly. The Austrian Enforcement Act therefore explicitly allowed the courts to refrain from hearing the respondent before issuing a temporary restraining order, if “there [was] an imminent threat of further endangerment by the person posing a threat“ (section 382c(1) of the Enforcement Act; see also paragraph 58 above).", "106. The Government submitted statistics from the year 2012, when 170 applications for temporary restraining orders had been decided on the day of the application; 117 of them had been granted. Of the 180 applications which had been decided on the day after the application, 126 had been granted. 132 applications for restraining orders had been decided within two days of the application, 87 of which had been granted. The Government therefore concluded that, contrary to what the Chamber had found (see paragraph 108 below), it was indeed possible to be granted a temporary restraining order very shortly after making an application. Hence, the applicant had not availed herself of all effective domestic remedies.", "107. The applicant submitted that she had exhausted all available domestic remedies, both formally (by instituting official liability proceedings and pursuing them up to the Supreme Court) and substantively (by raising all the arguments before the domestic courts which she had also raised in her application to the Court). In particular, she had not been obliged to apply, in addition, for a temporary restraining order covering her children’s school under sections 382b and 382e of the Enforcement Act. Given that the district court had four weeks to decide on such a request, that request could not be considered an effective remedy that would have ensured the necessary immediate protection of her children. Even if she had applied for a temporary restraining order on the same day she had filed for divorce, the district court would probably not have decided on the application within three days, and it was only three days later that her son had been killed. In addition, the judge at the court where she had filed for divorce on 22 May 2012 had not informed her that she had that opportunity, despite the allegations she had made about her husband’s violent and threatening behaviour.", "The Chamber’s findings", "108. The Chamber considered that an application under sections 382b or 382e of the Enforcement Act would not have provided the applicant and her children with the necessary immediate protection. It was not convinced that such an application would have been an effective remedy against the alleged risk in the instant case and therefore rejected the Government’s objection.", "The Court’s assessment", "109. The Grand Chamber observes that the main question with regard to the Government’s preliminary objection is whether the applicant, in respect of her complaint relating to the alleged deficiency of the legal framework, failed to make use of available remedies in domestic law, particularly those provided by sections 382b and 382e of the Enforcement Act. Taking a different approach from the Chamber, the Grand Chamber considers that the Government’s preliminary objection is not strictly a matter of exhaustion of domestic remedies, as the purpose of the provisions in question is the prevention of future harm rather than the remedying of harm that has already been done. The Grand Chamber therefore finds that this question is inextricably linked to that of the adequacy of the legal framework in providing sufficient protection for the applicant and her children against domestic violence, and to the question of the authorities’ possible duty of diligence. Accordingly, it joins this question to the merits and will examine it under Article 2 of the Convention (see, among other authorities, Opuz v. Turkey, no. 33401/02, § 116, ECHR 2009).", "The Chamber judgment", "110. The Chamber held unanimously that there had been no violation of Article 2 of the Convention under its substantive limb.", "111. The Chamber first examined the applicant’s complaint concerning the State’s positive obligation to take preventive operational measures for the protection of her son’s life. It agreed with the domestic authorities that on the basis of the information available at the time, when looked at cumulatively, the authorities had been entitled to conclude that the barring and protection order covering the applicant’s and her parents’ homes and the surrounding areas would be sufficient for the protection of the applicant’s life and the lives of A. and B. A real and immediate risk of a planned murder by E. had not been detectable at the time.", "112. Secondly, as to the complaint of the lack of a regulatory framework allowing a barring and protection order for childcare facilities, the Chamber referred to its reasoning as set out above, to the effect that under the circumstances known to the authorities there had been no discernible risk to the applicant’s son’s life when he was at school.", "113. The Chamber concluded that the competent authorities had not failed to comply with their positive obligation to protect the life of the applicant’s son.", "The parties’ submissionsThe applicant", "The applicant", "The applicant", "114. The applicant submitted that the domestic authorities had failed to comply with their positive obligation under Article 2 to protect her son’s life.", "115. The applicant argued that the principles developed by the Court in the case of Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII) had been established for incident ‑ type situations, whereas she had been in a situation of ongoing abuse in the family, which was typical in cases of domestic violence. An adequate risk assessment in such cases entailed taking into account general experience and empirical research into the dynamics of domestic violence, in order to allow for a prognosis of a potential future threat. In most cases, domestic violence persisted and escalated over time. Therefore, a context-sensitive assessment, as applied by the Court in Talpis v. Italy (no. 41237/14, 2 March 2017), and Volodina v. Russia (no. 41261/17, 9 July 2019), was required (“real and immediate risk ... taking into account the context of domestic violence”).", "116. As to the question whether the authorities ought to have known of the risk to the life of her son, the applicant submitted that in her report to the police she had mentioned not only the acts of violence and threats by her husband against her, but the fact that she considered her children to be endangered too. This was evident from E.’s threat to kill the children in front of her, and from the fact that he had admitted having slapped them as well. In fact, she had expressly mentioned that the protection of her children was her motive for reporting the matter to the police. Despite this, in the barring and protection order the authorities had not listed them as “endangered persons” within the meaning of section 38a of the Security Police Act. The authorities’ efforts had been focused on protecting the applicant, without recognising the risk to the children. Moreover, the police had never specifically asked her whether her husband had access to weapons. If asked, she would have been able to tell them that E. had repeatedly told her that a weapon was easy to obtain for him; “one call would have been enough”.", "117. The applicant reiterated that she had referred to many risk factors in the course of filing the police report, namely her husband’s previous criminal conviction (for offences against the same legally protected interests, namely making dangerous threats and bodily harm) in 2010; his relapse into his gambling addiction in 2012 and the resulting increased aggression; his refusal to accept her wish to get divorced and her resulting fear that he would act upon his threats; his gross denial and trivialisation of violence; and the increased frequency and intensity of the violence, culminating in the rape. The applicant pointed out that the police had explicitly mentioned some of these signs of an increased risk in the barring and protection order of 22 May 2012, and had been made aware of the violence against the children too. The separation from her husband in particular should have been treated as a high risk factor, not only on the basis of general experience of domestic violence, but also because E.’s death threats had always been made in relation to the applicant’s wish to separate from him.", "118. The applicant stressed that she had thus informed the authorities of all the relevant factors which should have enabled them to recognise the high risk her husband posed for her children and herself. Despite this, the authorities had failed to take the necessary measures to avoid that risk, namely to take E. into pre-trial detention as there was an imminent risk of a further offence being committed (Article 173 § 2 of the Code of Criminal Procedure; see paragraph 67 above). However, this increased risk had not been recognised by the authorities, leading to the killing of her son. The applicant argued that it was well known that domestic violence was never a one-off event. As long as an offender was not successfully kept from contacting the victims, the risk of further violence remained. The fundamentals of domestic violence showed that children were always affected by violence in the family unit. Intimate partner violence was never limited to the direct victim, which was why equal measures had to be taken to protect the children, even more so if the children had already been directly affected by violence and been the target of death threats, as in the applicant’s case.", "119. The applicant submitted that the authorities had failed to consider the specific context of domestic violence, as would have been required under the Court’s line of case-law starting with Talpis (cited above). They had attributed considerable weight to the fact that she had only reported the rape three days after it had happened, taking this as a factor mitigating the risk. However, owing to years of domestic abuse the applicant had been very fearful of acting decisively. It was precisely the context of domestic violence that made it unacceptable to blame the victim for hesitating to take action. Women in violent relationships often showed ambivalent behaviour towards the offender. Emotional attachment, the hope for change, but particularly the ongoing fear could all be reasons for this ambivalence, which had an effect on women’s attitudes concerning the criminal prosecution of the offender. Being late in filing a report was one possible consequence. This, in turn, meant that special requirements were imposed on the law-enforcement authorities when dealing with victims of domestic violence. Thus, the responsibility for taking the appropriate operational measures should not be shifted from the authorities to the victim.", "120. The applicant submitted that neither the police officers nor the public prosecutor who had decided on the measures to take had made use of a specific risk assessment tool designed for domestic violence cases, despite the first such test having been developed by Jacquelyn Campbell in 1986 and danger assessment tools having been widely used by law ‑ enforcement officials, advocates and health professionals for the past twenty-five years. While the police report on the barring and protection order of 22 May 2012 had listed a few risk factors, they were not part of a specific system, and there were no guidelines as to how to weigh them in the final decision on a barring and protection order. Public prosecutors likewise did not use any risk assessment tools or other established procedures when deciding whether or not a person posing a risk to another person should be taken into pre-trial detention.", "121. The applicant argued that the decree of the Ministry of Justice of 3 April 2019 (see paragraph 63 above) demonstrated that in 2012 it had not been standard procedure for the police to forward information on a barring and protection order to the public prosecutor’s office, and neither had it been standard practice for those authorities to use a danger assessment tool.", "122. The fact that standardised assessment tools were still not being used by the Austrian authorities had also been criticised by a screening group established by the Austrian Federal Ministry of the Interior after a major series of femicides at the beginning of 2019. The screening group had consisted of experts from the police, forensic psychologists and the Institute of Criminal Law and Criminology at the University of Vienna and had assessed all murders and attempted murders in the period from 1 January 2018 until 25 January 2019. At the top of their list of recommendations was the implementation of a risk assessment tool for law ‑ enforcement officials when dealing with situations of domestic violence.", "123. The applicant argued that the legal framework at the time of the events in question had not been sufficient to protect her and her children from violent acts by E., in particular because of the lack of a possibility of extending the barring and protection order to the children’s school. A temporary restraining order under section 382e of the Enforcement Act would not have been issued in sufficient time, as the competent courts had up to four weeks to decide on such an application. The applicant further stated that the judge at the District Court where she had filed for divorce on 22 May 2012 had not informed her of that possibility, even though it should have been clear to the judge from her statements that there was an increased need for protection.", "124. Moreover, the applicant pointed out that there had been no law at the relevant time providing for mandatory notification of the Youth Welfare Office (YWO) after a barring and protection order had been issued, as the relevant Article of the Civil Code (Article 211) had only entered into force on 1 February 2013 (see paragraph 60 above).", "The Government", "125. The Government considered that the national authorities had complied with their positive obligations under Article 2 of the Convention. They stressed that the scope of these positive obligations had to be interpreted in such a way that it did not impose an impossible or unreasonable burden on the States Parties (the Government compared Osman, § 116; Opuz, § 129; and Talpis, § 101, all cited above) and had to take into account the competing rights under Article 5, Article 6 § 2 and Article 8 of the Convention.", "126. They submitted that in the applicant’s case the Austrian authorities had acted immediately and fulfilled their obligations under Article 2 in the best possible manner. They had had no information from which they could have concluded that there was a real and immediate threat to the life of the applicant’s children, which was why the children had not been expressly mentioned as “endangered persons” in the police report on the barring and protection order. Nonetheless, the barring and protection order had been designed not only for the applicant’s protection but also for the protection of her children, as was evident from the reasons given for including the flat of the applicant’s parents, which included the words “since the endangered person and her children are staying there”. The applicant had first mentioned in the police report of 22 May 2012 that the husband had also beaten the children and had uttered threats to murder them since March 2012. Prior to that report filed with the police, the applicant’s husband had come to the attention of the law-enforcement and prosecuting authorities in this connection only once, on account of ill-treatment of the applicant two years previously. In the period of about two years following that police report, no misconduct on the part of the husband had become known to the authorities. The special features of domestic violence had also been taken into account. The husband had not only adhered to the barring and protection order in 2010, but had also subsequently gone to hospital of his own accord to be treated for his mental health problems. Therefore, the police had been entitled to assume in 2012 that he would again comply with the order.", "127. The Government argued that the applicant herself had probably only gradually become aware of the risk her husband posed to their children. It had taken her three days after the violence had escalated on Saturday 19 May 2012 to file for divorce and file a report with the police. She had subsequently confirmed to the police on 25 May 2012 that she had agreed after the barring and protection order had been issued that the children could continue to have contact with E. if the applicant’s father was present. The applicant had failed to seek a temporary restraining order from the court that would have also included areas and premises outside her home and its vicinity. She had not planned to inform her children’s teacher until Saturday 26 May 2012 – as it transpired, the day after the shooting of her son. Even though, according to her own statement, she had seen her husband close to the school in the morning before he had committed the crime, she had not immediately informed the teacher about the risk.", "128. The Government argued that the Austrian authorities had – as it had turned out after the event – had only a very limited set of facts at their disposal which they could use as a basis for assessing the potential danger emanating from the husband. When interviewed by the police on the same day, the husband had appeared calm and cooperative, and no evidence of rape had been established by means of a gynaecological examination of the applicant. In view of the fact that the applicant had not reported the act of violence to the police until three days after the offence (although that possibility was available twenty-four hours a day), and that the report concerned a form of violence directed against her but not her children, the public prosecutor’s office had not been obliged to assume that a situation of acute danger as set out in Article 170 § 1 (4) of the Code of Criminal Procedure (see paragraph 65 above) existed. The applicant had spent the intervening period with her husband in their common home. According to the applicant’s submissions, no further ill-treatment had taken place during those three days either. Moreover, the acts reported by the applicant had only taken place in the domestic sphere; hence, there had likewise been no specific indication of a possible offence being committed in public, such as in the children’s school. It had thus not been foreseeable that the husband would shoot the son at school.", "129. The Government stated that there was a checklist of steps to be taken by the police in the event of an intervention under section 38a of the Security Police Act, which included noting down certain risk factors such as an indication of dangerous threats, other criminal acts, possession of a weapon, drug or alcohol abuse, and the mental and emotional state of the person posing a threat. The police had to note any indications of an imminent dangerous attack, as well as any indications of increased dangerousness of the perpetrator. Any injuries sustained by the victim had to be documented in writing and by taking photographs; the same applied to any damage done to the victim’s clothing or the apartment. That checklist had been used by the police in the applicant’s case.", "130. The Government submitted that the public prosecutor’s office, when assessing the question of pre-trial detention, had carried out an assessment of the risks to the applicant and her two children. Although this had not been done with explicit reference to the Court’s judgment in Osman (cited above), the circumstances of relevance for assessing the urgency of the suspicion and the grounds for detention, in particular the risk of a further crime being committed, had been examined. The latter ground for detention in itself required a risk assessment. Since Article 5 of the Convention and the corresponding case-law allowed an interference with the right to liberty and security only as a last resort (the Government cited the example of Saadi v. the United Kingdom [GC], no. 13229/03, § 79, 29 January 2008, with further references), detention was only lawful if there was a correspondingly strong suspicion. However, after the barring and protection order had been issued and on the basis of the information available to the police and the prosecutors at the time, no such suspicion had existed. The Government argued that in his analysis of the facts known at the time, the public prosecutor had been entitled to assume that the husband did not pose an immediate and real threat, at least not to the children, and that the barring and protection order issued and monitored by the police would, as a more lenient measure, adequately protect the applicant and her children. From an ex ante perspective, all the possibilities available to the authorities and the courts (rapid conduct of investigations to assess the situation, including the hearing in person of the applicant, E. and the two children, and the issuing of a barring and protection order under section 38a of the Security Police Act) had thus been exhausted. According to the assessment of all three public prosecutors involved in the case, these measures had been proportionate at the time and the decision not to arrest E. had been lawful.", "131. The Government further submitted that the applicant, who had been receiving counselling at the Centre for Protection from Violence, must have been aware of the possibility of seeking refuge with her children in the nearest women’s shelter. In the present case, the expert from the competent Centre for Protection from Violence had conducted a standardised risk assessment, independently and based on a comprehensive set of facts, with an outcome identical to that of the Austrian authorities.", "132. The Government argued that in order to produce a sound result, a risk assessment had to include an informed individual evaluation; it could not be replaced by the mechanical use of standardised risk assessment tools. It was essential to have well-trained staff able to check, on a case-by-case basis, the generally accepted factors and patterns, such as heavy alcohol use, controlling behaviour, forced sexual activity and psychological violence. Therefore, the Austrian authorities constantly arranged targeted training activities in general, and for violence prevention officers in particular.", "133. The Government submitted that the first Protection from Violence Act ( Gewaltschutzgesetz ) of 1997 had introduced a duty of special training on domestic violence for police officers. In order to implement the second Protection from Violence Act, which had come into force on 1 June 2009, the Federal Ministry of the Interior had organised special training and awareness-raising exercises for the police. The topic “Violence against children” was one of the main focuses of this training. At the relevant time, the (female) investigating officer of the St Pölten municipal police station had already been very experienced and shown great dedication in the field of domestic violence.", "134. Since 1 January 2009 it had been mandatory for public prosecutors and judges to work for at least two weeks at a victim protection or welfare facility during training. The public prosecutor who had first dealt with the applicant’s case had previously attended two subject-specific training events. The second prosecutor involved in the case had not received specific training in this area. The third public prosecutor who had handled the case ( aktführende Staatsanwältin ) had been assigned for five months during her training to a lawyer who mainly provided legal support for victims of (mostly domestic) violence. During this time she had gained a comprehensive insight into victim protection.", "135. The Government explained that the police had a general duty to prevent dangerous attacks, inter alia on life, health and liberty, if such attacks were probable (under section 22 of the Security Police Act; see paragraph 45 above). The police issued a barring and protection order of their own motion if there was a relevant risk in a particular case (under section 38a of the Security Police Act; see paragraph 48 above); this spared victims of domestic violence the burden of taking the initial steps necessary to break the cycle of violence. The Government stressed that barring and protection orders and court injunctions did not preclude the possibility of arrest or of pre-trial detention (governed by Articles 170 and 173 of the Code of Criminal Procedure, in conformity with Article 5 of the Convention).", "136. Since 1 September 2013 the police had to inform the YWO of the issuing of a barring and protection order where children were concerned (see paragraph 60 above). The YWO would then conduct a comprehensive assessment of the risk and take measures to protect the child. In addition, the police had to inform the competent Centre for Protection from Violence about any such barring and protection order. The centre’s staff would then contact the victims of violence as promptly as possible, offering advice and support with respect to further legal steps. The police monitored compliance with barring and protection orders and could arrest a person who was not complying with such an order. In order to obtain protection for a longer period of time, victims of domestic violence could file an application with the competent district court for a temporary restraining order (subsequent to, or also independently from, a barring and protection order issued by the police). In cases of serious violence, victims were, as a rule, advised to leave home with the children and seek refuge in a safe place such as a women’s shelter, even if the violent partner had already been evicted or barred.", "The third-party interveners", "(a) Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO)", "137. GREVIO, the body mandated to monitor the implementation of the Istanbul Convention (see also paragraphs 87 et seq. above), submitted that a gendered understanding of domestic violence, as required under the Istanbul Convention, could only be achieved if the national authorities in charge of preventing the relevant offences and protecting the victims took into account the specific nature and dynamics of domestic violence and recognised its distinctly gendered nature. Consecutive cycles of domestic violence were generally the norm with an increase in frequency, intensity and danger over time. A request by the abused woman for separation or divorce was in fact one factor that could lead to the escalation of domestic violence against her and her child(ren).", "138. The above background explained why victims might not immediately report the violence (including in cases of sexual violence) or might withdraw their complaints or even forgive their violent partner. In that connection, research indicated that women typically sought protection orders after serious levels of victimisation and after abuse over a significant length of time. In other words, any complaints of domestic violence were usually filed after several episodes of violence and often following a very violent incident which had rendered the continuation of the relationship unsustainable, intolerable (or even potentially lethal) for the victim. Factors such as financial dependency, migrant status, disability and age could compound the abuse and impact the victim’s ability to break away from the cycle of violence.", "139. GREVIO explained that the Istanbul Convention was attentive to the specific risks faced by children in the context of domestic violence, and treated both children who had been the subject of direct violence and those who had witnessed domestic violence as victims in need of protection. Studies and statistical data underlined the fact that perpetrators in the context of intimate partner violence were also often violent towards children with whom they cohabited, including after the end of an abusive relationship. With fewer opportunities available to subjugate their former partners after separation, many domestic abusers retaliated by abusing their children. Harming the children through neglect or psychological, sexual and physical violence, including their deliberate murder, often came as a form of revenge, and many children lived with violence and the threat of death on a daily basis. Women victims of domestic violence who left their abusers were often confronted with threats of harm to the children, which had to be taken seriously. Thus, it was very important to understand these signs and to conduct effective risk assessments for children as well.", "140. GREVIO submitted that Article 51 of the Istanbul Convention required authorities to carry out a risk assessment for the victims as of receipt of the complaint using standardised tools with pre-established questions that the competent authorities must systematically ask and answer. The system in place should afford law-enforcement officials clear guidelines and criteria governing action or intervention in sensitive situations. Several internationally recognised tools existed, for example the Spousal Assault Risk Assessment (SARA), the Multi ‑ agency Risk Assessment Conference (MARAC) developed in the United Kingdom, VioGen from Spain, and the domestic violence screening inventory (DVSI, DVSI ‑ R), and were applied to assess the risk, including the lethality risk, which perpetrators of domestic violence posed to their victims. There were several indicators that were normally included in risk assessments and that were regarded as red flags indicative of a high risk, such as: the fact that the victim had filed for separation or the break-up of the relationship, previous acts of violence, psychological problems of the perpetrator, the prior issuing of a restrictive measure, addictions, unemployment, threats to take away common children, acts of sexual violence, threats to kill the victim and her children, threats of suicide, and coercive and controlling behaviour. A red flag of particular importance under Article 51 was if the perpetrator had access to a firearm. This aspect therefore had to be systematically and methodically addressed in all domestic violence cases and at all stages of the case.", "141. GREVIO argued that it was important that the authorities should not rely on the victim’s assessment of the risk, which, owing to the dynamics of domestic violence, might not be objective. Moreover, the assessment of risk and identification of safety measures should be conducted continuously and during all the phases of the procedure by police officers, prosecutors and judges from the first meeting with the victim all the way to a possible sentence, as the risk could change and new information might need to be taken into account. If risk management was not reliable and ongoing, victims might be lulled into a false sense of security, exposing them to greater risk. Crucially, any risk assessment had to address systematically the risk not only for the woman concerned, but also for her children.", "142. The purpose of the risk assessment was to enable the competent authorities to manage the identified risk and to provide coordinated safety and support to the victims. This meant that all relevant authorities had to provide information on risks to, and coordinated support with, any other relevant stakeholders who came into regular contact with persons at risk, including, in the case of children, with teachers. GREVIO added that the composure/conduct of the perpetrator when dealing with persons outside of the domestic unit should not be given weight in assessing the dangerousness and the risk of further domestic violence. The perpetrator was primarily dangerous to women or children with whom he had intimacy, at home or in similar circumstances.", "143. GREVIO submitted that the legal system in place should afford law-enforcement officials clear guidelines and criteria governing action or intervention in sensitive situations such as in domestic violence cases. In line with Article 15 of the Istanbul Convention (see paragraph 81 above), such training could significantly improve the understanding of the dynamics of domestic violence, as well as its links with harm to children, thus enabling professionals to better assess and evaluate the existing risk, respond appropriately and ensure prompt protection. Moreover, training of police, prosecutors and judges on domestic violence was essential in order to evaluate the risk of reoffending and order the necessary measures of protection.", "144. Turning to the States Parties’ obligation to equip the competent authorities with the power to order a perpetrator of domestic violence to leave and to bar him or her from entering the residence or contacting the victim (Article 52 of the Istanbul Convention, see paragraph 84 above), GREVIO stressed that there might be a need to extend the protection to the children of the victim, for example by banning the perpetrator from the school and/or childcare facility. Any regulation that was limited only to banning the perpetrator from the residence of the victim but allowed him or her to contact them in other places would fall short of fulfilling the obligation under Article 52 of the Istanbul Convention. Where a no-contact order was issued, the authorities must ensure the enforcement of the order through appropriate monitoring, so that the onus of ensuring compliance with the order did not fall on the victim and/or her children. GREVIO in its reports had highlighted ways in which this could be done in practice, for instance by the use of electronic tools, regular checks on the victim and her children by phone, and follow-up meetings with the perpetrator to explain the order in place and the consequences a breach could have.", "145. Lastly, GREVIO submitted that Article 16 of the Istanbul Convention imposed an obligation on Contracting States to develop preventive intervention and treatment programmes to help perpetrators change their attitudes and behaviour in order to prevent further acts of domestic violence. Domestic violence intervention programmes should be based on best practices and what research revealed about the most effective ways of working with perpetrators. Programmes should encourage perpetrators to take responsibility for their actions and examine their attitudes and beliefs towards women. In its evaluation reports, GREVIO had repeatedly pointed to the need to ensure attendance of such programmes with a view to reducing recidivism.", "(b) European Human Rights Advocacy Centre (EHRAC) and Equality Now", "146. In their joint intervention, EHRAC (European Human Rights Advocacy Centre at Middlesex University, United Kingdom) and Equality Now (an international NGO) submitted that the Grand Chamber should clarify and develop its case-law regarding the scope of the State’s positive obligation to prevent risks to life and limb posed by non-State actors in cases of domestic violence. They argued, in particular, that the test developed by the Court in the case of Osman (cited above) in order to trigger the State’s positive obligation, which required that “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual”, had to be applied taking due account of the particular context of domestic violence. Domestic violence was by its very nature cyclical, recurring in time and with a tendency to escalate. For an “immediate” threat it should therefore be sufficient that the authorities were on notice – possibly already from the victim’s first report of repeated violence to the authorities – that the threat of harm had materialised in an incident of domestic violence and was ongoing. A lethality risk assessment should already be conducted at this point.", "147. Furthermore, when determining whether the authorities “ought to have known”, with the application of due diligence, of the threat to the victim’s life, the Court had held convincingly in Volodina (cited above, § 92) that “special diligence” was required in domestic violence cases. As the Court had confirmed in Talpis (cited above, § 118), the failure to (properly) assess a risk to life or health could not be relied on to deny knowledge of the existence of a threat.", "148. The interveners further submitted that a gender perspective had to be adopted in assessing States’ compliance with their positive obligations in responding to cases of domestic violence. As domestic violence was the result of historically established perceptions of the subordinate position of women in society and thus a form of gender-based discrimination against women, such cases should be automatically considered under Article 14 of the Convention. Furthermore, having regard to the systemic and structural nature of violence against women, the Court should order general measures under Article 46 of the Convention.", "(c) Federal Association of Austrian Centres for Protection from Violence ( Bundesverband der Gewaltschutzzentren Österreichs )", "149. The Federal Association of Austrian Centres for Protection from Violence submitted that it was generally essential that the national authorities be aware of the specific dynamics involved in domestic violence, which led to victims frequently not informing the police immediately after a violent attack or to victims refusing to make a statement in a criminal case, and that these dynamics be taken into account in the authorities’ risk assessment. In practice, the authorities did not make standardised threat assessments taking into account the particular risk factors characteristic of situations of domestic violence (such as separation, previous violent behaviour, possession of weapons, threats of violence, failure to observe police and court orders, and extreme fear on the part of the victim).", "150. The association further reported that in its experience, in cases in which a high risk of a seriously violent act had been identified, police emergency barring orders and judicial interim injunctions – which took several days, if not weeks, to be issued – could not offer adequate victim protection. It was necessary in such cases to place the person who posed a threat in pre-trial detention in accordance with Article 173 of the Austrian Code of Criminal Procedure.", "(d) Association “Women’s Popular Initiative 2.0” ( Frauenvolksbegehren 2.0 )", "151. Women’s Popular Initiative 2.0, an NGO advocating for gender equality in Austria, submitted that legal professionals and law-enforcement agencies received some, but not sufficient vocational training regarding domestic violence, which led to judicial stereotyping on “how victims behave” and to gender-biased policing in the context of a persisting misogynistic culture. When intervening in cases of domestic violence, law ‑ enforcement officers did not use a standardised risk assessment tool, based on a list of scientifically sound risk indicators, in order to evaluate properly the risk of an escalation of violence and the degree of risk. The NGO further contended that in high-risk cases, civil procedural law instruments such as restraining orders did not offer sufficient protection and that pre-trial detention should be used more frequently in such cases.", "(e) Association of Autonomous Austrian Women’s Shelters ( Verein Autonome Österreichische Frauenhäuser – “AÖF”)", "152. AÖF took the view that while, for a long time, Austria had had a pioneering role in Europe concerning the prevention of violence and the protection of victims, numerous deficits remained in this regard. In particular, judges and prosecutors had to be trained to gain an understanding of gender-specific violence against women and the forms and effects of traumatisation, in order to prevent violence against women from being trivialised. Moreover, it was necessary to implement clear and binding guidelines for law-enforcement authorities on carrying out risk assessments, taking into account specific risk factors, in order for them to be in a position to take effective measures to protect victims. AÖF’s experience had shown that protection orders issued by the police or the civil courts were not sufficiently effective to prevent murder and should not be used instead of pre-trial detention in high-risk cases.", "153. Moreover, AÖF submitted, with reference to the survey carried out by the FRA (see paragraph 97 above), that reporting rates of incidents of violence against women were generally low. It was common for perpetrators to threaten victims in order to avoid being reported to the police, and it needed immense courage, empowerment and support for victims to turn to the authorities. Therefore, it should not be held against them if they did not report incidents of violence immediately.", "(f) Women against Violence Europe (WAVE)", "154. WAVE, a network of women’s NGOs in forty-six countries working to combat and prevent violence against women and domestic violence in Europe, stressed the importance for the authorities of carrying out a systematic risk assessment, having regard to the now well-known risk factors, including risk factors for children, in cases of domestic violence. It was important to adequately train the law-enforcement authorities in order to ensure a correct understanding of domestic violence and its specific dynamics. When there was a risk of repeated and severe violence, emergency police barring orders and civil-law interim injunctions, which usually took at least four to five days to be issued, were not sufficient to ensure rapid and effective protection by the State. Moreover, responsibility for acting could not be shifted onto the victims of domestic violence. The State had to use criminal-law instruments in such cases and order the perpetrator’s pre-trial detention, or issue criminal-law orders under Article 173 § 5 of the Code of Criminal Procedure (see paragraph 67 above) as more lenient measures.", "(g) Donne in Rete contro la violenza (D.i.Re)", "155. D.i.Re, a network of over eighty Italian women’s NGOs running services to combat and prevent violence against women and domestic violence, concurred with WAVE’s submissions on the need to adequately train the law-enforcement authorities in the field of domestic violence and to use criminal-law instruments to ensure victims’ protection in high-risk cases.", "156. D.i.Re further took the view that the test developed by the Court in the case of Osman (cited above) in order to trigger the State’s positive obligation to prevent risks to life posed by non-State actors – namely that “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual” – had to be applied with a gender-sensitive understanding of domestic violence, which was a form of gender discrimination. Owing to the particular vulnerability of the victims, “special diligence” was required in dealing with domestic violence cases, as the Court itself had notably confirmed in the cases of M.G. v. Turkey (no. 646/10, 22 March 2016) and Talpis (cited above). The special condition of victims justified lowering the threshold of risk required in order to trigger State intervention from an “immediate risk” to a “present risk” of violence.", "The Court’s assessmentGeneral principles", "General principles", "General principles", "(a) Positive obligations under Article 2 in general", "157. The Court has held that Article 2 enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324). The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Osman, cited above, § 115, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002‑I). The latter obligation involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in certain circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman, cited above, § 115; Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007; and Opuz, cited above, § 128).", "158. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For this positive obligation to arise, it must be established that the authorities knew or ought to have known at the relevant time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (the so-called “ Osman test” – see Osman, cited above, § 116).", "159. The Court notes that the duty to take preventive operational measures under Article 2 is an obligation of means, not of result. Thus, in circumstances where the competent authorities have become aware of a real and immediate risk to life triggering their duty to act, and have responded to the identified risk by taking appropriate measures within their powers in order to prevent that risk from materialising, the fact that such measures may nonetheless fail to achieve the desired result is not in itself capable of justifying the finding of a violation of the State’s preventive operational obligation under Article 2. On the other hand, the Court observes that in this context, the assessment of the nature and level of risk constitutes an integral part of the duty to take preventive operational measures where the presence of a risk so requires. Thus, an examination of the State’s compliance with this duty under Article 2 must comprise an analysis of both the adequacy of the assessment of risk conducted by the domestic authorities and, where a relevant risk triggering the duty to act was or ought to have been identified, the adequacy of the preventive measures taken.", "160. It is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case (ibid. , and Opuz, cited above, § 130). Moreover, the Court has held that it must be cautious about revisiting events with the wisdom of hindsight (see Bubbins v. the United Kingdom, no. 50196/99, § 147, ECHR 2005-II (extracts)). This means that a given case in which a real and immediate risk materialised must be assessed from the point of view of what was known to the competent authorities at the relevant time.", "(b) Positive obligations under Article 2 in the context of domestic violence", "(i) General considerations", "161. The issue of domestic violence – which can take various forms, ranging from physical assault to sexual, economic, emotional or verbal abuse – transcends the circumstances of an individual case. It is a general problem which affects, to a varying degree, all member States and which does not always surface into the public sphere since it often takes place within personal relationships or closed circuits and affects different family members, although women make up an overwhelming majority of victims (see Opuz, § 132, and Volodina, § 71, both cited above). Today, the extent of domestic violence is well documented (see, for example, the results of the FRA survey in relation to the experiences of women in the EU member States, paragraph 97 above). Much research has been done in the past two decades into domestic and gender-based violence, and legal and practical responses have developed significantly in many States (see the results of the comparative-law survey in paragraphs 99-101 above).", "162. There is a common understanding in the relevant international material that comprehensive legal and other measures are necessary to provide victims of domestic violence with effective protection and safeguards (compare the authorities referred to in Opuz, cited above, §§ 72 ‑ 86 and 145, and the material summarised in the section on “International law and practice”, see paragraphs 73 et seq. above).", "163. Children who are victims of domestic violence are particularly vulnerable individuals and entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity, notably as a consequence of the States’ positive obligations under Article 2 of the Convention (see Opuz, cited above, § 159; Talpis, cited above, § 99; and Volodina, cited above, § 72). Violence against children belonging to the common household, including deadly violence, may be used by perpetrators as the ultimate form of punishment against their partner.", "164. The existence of a real and immediate risk to life (see paragraphs 158-160 above) must be assessed taking due account of the particular context of domestic violence. In such a situation it is above all a question of taking account of the recurrence of successive episodes of violence within the family unit (see Talpis, § 122, and Volodina, § 86, both cited above, and Munteanu v. Moldova, no. 34168/11, § 70, 26 May 2020). The Court therefore considers it necessary to clarify what it means to take into account the specific context and dynamics of domestic violence under the Osman test (see paragraph 158 above).", "(ii) The requirement to respond immediately to allegations of domestic violence", "165. The Court reiterates at the outset that an immediate response to allegations of domestic violence is required from the authorities (see Talpis, cited above, § 114). Where it has found that the authorities failed to act promptly after receiving a complaint of domestic violence, it has held that this failure to act deprived such complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of acts of violence (see Halime Kılıç v. Turkey, no. 63034/11, § 99, 28 June 2016, and Talpis, cited above, § 117).", "166. Moreover, the Court reaffirms that special diligence is required from the authorities when dealing with cases of domestic violence (see M.G. v. Turkey, cited above, § 93; Volodina, cited above, § 92; and Barsova v. Russia, no. 20289/10, § 35, 22 October 2019).", "(iii) Obligations relating to risk assessment", "167. The comparative-law material available to the Court (see paragraph 101 above) demonstrates that a risk assessment is carried out in all of the member States surveyed in order to determine whether a victim of domestic violence is at risk of further violence. The Court further notes that pursuant to Article 51 of the Istanbul Convention an assessment of the lethality risk, the seriousness of the situation and the risk of repeated violence are crucial elements of prevention in domestic violence cases (see paragraph 82 above, as well as the Explanatory Report on that provision, paragraph 83 above). The Court notes that according to GREVIO, the competent authorities should carry out such a risk assessment for victims as of receipt of a complaint, ideally using standardised, internationally recognised and research-based tools with pre-established questions that the authorities should systematically ask and answer. The system in place should afford law-enforcement officials clear guidelines and criteria governing action or intervention in sensitive situations (see the third-party submissions by GREVIO, paragraph 140 above).", "168. The Court considers this approach to be relevant for the member States’ positive obligations under Article 2 in the context of domestic violence. The Court notes that in order to be in a position to know whether there is a real and immediate risk to the life of a victim of domestic violence (compare the Osman test in paragraph 158 above), the authorities are under a duty to carry out a lethality risk assessment which is autonomous, proactive and comprehensive.", "169. The terms “autonomous” and “proactive” refer to the requirement for the authorities to not rely solely on the victim’s perception of the risk, but to complement it by their own assessment. Indeed, owing to the exceptional psychological situation in which victims of domestic violence find themselves, there is a duty on the part of the authorities examining the case to ask relevant questions in order to obtain all the relevant information, including from other State agencies, rather than relying on the victim to give all the relevant details (compare Valiulienė v. Lithuania, no. 33234/07, § 69, 26 March 2013, where the Court acknowledged that the psychological impact was an important aspect of domestic violence, and T.M. and C.M. v. the Republic of Moldova, no. 26608/11, § 46, 28 January 2014, where the Court held that “it was the duty of the police to investigate of their own motion the need for action in order to prevent domestic violence, considering how vulnerable victims of domestic abuse usually are”).", "170. In Talpis (cited above, §§ 107-25), the Court did not accord decisive weight to the victim’s own perception of risk (for instance the withdrawing of the complaint, the changing of statements, statements denying past violence, and the return of the victim to the perpetrator). In Opuz (cited above, § 153), the Court noted, in particular, that “once the situation has been brought to their attention, the national authorities cannot rely on the victim’s attitude for their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim”. Any risk assessment or decision on the measures to be taken must therefore not depend on the victim’s statements alone. While the Court considers that the victims’ own perception of the risk they are facing is relevant and must be taken into account by the authorities as a starting-point (compare Bălşan v. Romania, no. 49645/09, § 62, 23 May 2017; Talpis, cited above, § 111; and Halime Kılıç, cited above, § 93), this does not discharge the latter, in line with their duty to examine allegations of domestic violence of their own motion, from proactively collecting and assessing information on all relevant risk factors and elements of the case.", "171. “Comprehensiveness” in the context of a risk assessment is an element which should characterise any official investigation, and is equally relevant in domestic violence cases. The Court considers that, while the judgment of well-trained law-enforcement officials is essential in each case, the use of standardised checklists, which indicate specific risk factors and have been developed on the basis of sound criminological research and best practices in domestic violence cases, can contribute to the comprehensiveness of the authorities’ risk assessment (see also the third ‑ party submissions by GREVIO, paragraph 140 above). The comparative-law material has shown that the majority of the member States surveyed use standardised risk assessment tools (see paragraph 101 above).", "172. The Court recognises that it is important for the authorities dealing with victims of domestic violence to receive regular training and awareness ‑ raising, particularly in respect of risk assessment tools, in order to understand the dynamics of domestic violence, thus enabling them to better assess and evaluate any existing risk, respond appropriately and ensure prompt protection (compare Article 18 § 2 of the Istanbul Convention, as well as the third-party submissions by GREVIO, paragraph 143 above).", "173. Moreover, the Court considers that where several persons are affected by domestic violence, be it directly or indirectly, any risk assessment must be apt to systematically identify and address all the potential victims (compare also the third-party submissions by GREVIO, paragraph 141 above). In conducting their assessment, the authorities should keep in mind the possibility that the outcome could be a different level of risk for each of them.", "174. Given the often urgent nature of interventions by law-enforcement officials and prosecutors in the domestic violence context and the necessity of sharing relevant information among all the authorities involved, the Court considers that some basic documenting of the conduct of the risk assessment is of importance. It reiterates that the purpose of the risk assessment is to enable the competent authorities to manage the identified risk and to provide coordinated safety and support to the victims. This means that the law-enforcement authorities should share information on risks and coordinate support with any other relevant stakeholders who come into regular contact with persons at risk, including, in the case of children, with teachers (compare also the third-party submissions by GREVIO, paragraph 142 above). The Court takes the view that the authorities should inform the victim(s) of the outcome of their risk assessment, and, where necessary, provide advice and guidance on available legal and operational protective measures.", "175. Turning to the interpretation of the term “immediate” in the Osman test, the Court considers that the application of the immediacy standard in this context should take into account the specific features of domestic violence cases, and the ways in which they differ from incident-based situations such as that in Osman (cited above). The Court reiterates that consecutive cycles of domestic violence, often with an increase in frequency, intensity and danger over time, are frequently observed patterns in that context (compare also the third-party submissions by GREVIO, EHRAC and Equality Now in paragraphs 137 and 146 above). The Explanatory Report to Article 52 of the Istanbul Convention (see paragraphs 84-85 above) clarifies that the term “immediate danger” in that provision refers to any situations of domestic violence in which harm is imminent or has already materialised and is likely to happen again. The Court has observed in numerous other cases that a perpetrator with a record of domestic violence posed a significant risk of further and possibly deadly violence (see, for example, Opuz, cited above, § 134; Eremia v. the Republic of Moldova, no. 3564/11, § 59, 28 May 2013; Mudric v. the Republic of Moldova, no. 74839/10, § 51, 16 July 2013; and B. v. the Republic of Moldova, no. 61382/09, §§ 52-53, 16 July 2013). Based on what is known today about the dynamics of domestic violence, the perpetrator’s behaviour may become more predictable in situations of a clear escalation of such violence. This general knowledge of domestic violence and the comprehensive research available in this area must duly be taken into account by the authorities when they assess the risk of a further escalation of violence, even after the issuance of a barring and protection order.", "176. The term “immediate” does not lend itself to a precise definition. In Opuz (cited above, §§ 134-36), for example, the Court concluded in relation to the immediacy of the risk that the authorities could have foreseen the lethal attack against the applicant’s mother because of the escalation of violence, which was also known to the authorities and was sufficiently serious to warrant preventive measures. On the basis of the long history of violence in the relationship (six reported episodes) and the fact that the applicant’s husband was harassing her, wandering around her property and carrying knives and guns, the Court found that it was “obvious” that the perpetrator posed a risk of further violence. The lethal attack had therefore been imminent and foreseeable. In Talpis (cited above, § 122), the Court found that because the police had already had to intervene twice on the same night in respect of the applicant’s husband, and because he was intoxicated and had a police record (two successive episodes of violence requiring police intervention on the same night), the authorities “should have known that [he] constituted a real risk to her, the imminent materialisation of which could not be excluded” (ibid., § 122). In its case ‑ law on the issue, the Court has thus already applied the concept of “immediate risk” in a more flexible manner than in traditional Osman -type situations, taking into account the common trajectory of escalation in domestic violence cases, even if the exact time and place of an attack could not be predicted in a given case. The Court emphasises, however, that an impossible or disproportionate burden must not be imposed on the authorities (see Osman, cited above, § 116).", "(iv) Obligations relating to operational measures", "177. The Court reiterates that if the authorities have established that there is a real and immediate risk to the life of one or more identified individuals, their positive obligation to take operational measures is triggered.", "178. Such operational preventive and protective measures are intended to avoid a dangerous situation as quickly as possible (compare Talpis, cited above, § 114). The Court has found in several cases that even when the authorities did not remain totally passive, they still failed to discharge their obligations under the Convention if the measures they had taken had not stopped the abuser from perpetrating further violence against the victim (compare Volodina, cited above, § 86, with further references).", "179. Whether sufficient operational measures are available to the authorities in law and in practice at the critical moment of deciding how to react to a situation of domestic violence is closely related to the question of the adequacy of the legal framework (the “measures within the scope of their powers” aspect of the Osman test). In other words, the toolbox of legal and operational measures available must give the authorities involved a range of sufficient measures to choose from, which are adequate and proportionate to the level of (lethal) risk that has been assessed. The Court needs to be satisfied, from an overall point of view, that the legal framework was adequate to afford protection against acts of violence by private individuals in any given case (compare Talpis, cited above, § 100, with further references).", "180. The Court further observes that risk management plans and coordinated support services for victims of domestic violence have proved valuable in practice in enabling the authorities to take adequate preventive operational measures once a risk has been established. This includes the rapid sharing of information among relevant stakeholders. If children are involved or found to be at risk, the child protection authorities should be informed as soon as possible, as well as schools and/or other childcare facilities (see Article 51 of the Istanbul Convention and the third-party submissions by GREVIO, paragraphs 82, 83 and 142 above). A proper preventive response often requires coordination among multiple authorities (compare, for example, the submissions by GREVIO, paragraph 141 above).", "181. As an additional preventive measure, the Court considers that treatment programmes for perpetrators are desirable. According to the comparative-law material available to the Court, seven of the member States surveyed provide for specific measures aimed at teaching perpetrators of domestic violence about non-violent behaviour (see paragraph 99 above). Article 16 of the Istanbul Convention imposes an obligation on Contracting States to develop preventive intervention and treatment programmes to help perpetrators change their attitudes and behaviour in order to prevent further acts of domestic violence.", "182. Next, the Court considers that the decision by the authorities as to which operational measures to take will inevitably require, at both general policy and individual level, a careful weighing of the competing rights at stake and other relevant constraints. The Court has emphasised in domestic violence cases the imperative need to protect the victims’ human rights to life and to physical and psychological integrity (see Opuz, § 147, and Talpis, § 123, both cited above; compare also the conclusions of the CEDAW Committee in the case of Şahide Goekce v. Austria – see paragraph 92 above). At the same time, there is a need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects due process and other safeguards that legitimately place restraints on the scope of their actions, including the guarantees contained in Articles 5 and 8 of the Convention (compare Osman, § 116, and Opuz, § 129, both cited above).", "183. Turning to the question of preventive operational measures such as may be required under Article 2, the Court emphasises at the outset that any such measures, to the extent that they have an impact on the alleged perpetrator, must, on the one hand, be chosen with a view to offering an adequate and effective response to the risk to life as identified, while, on the other hand, any measures taken must remain in compliance with the States’ other obligations under the Convention. In the context of protective and preventive measures in general, it is inevitable that interference by the authorities with the alleged perpetrator’s private and family life in particular may be necessary in order to protect the life and other rights of the victims of domestic violence and to prevent criminal acts directed against the victims’ life or health. The nature and severity of the assessed risk (see paragraph 168) will always be an important factor with regard to the proportionality of any protective and preventive measures to be taken (see paragraph 179 above), whether in the context of Article 8 of the Convention or, as the case may be, of restrictions of liberty falling under Article 2 of Protocol No. 4, which provides for freedom of movement. As regards measures that entail a deprivation of liberty, however, Article 5 of the Convention imposes particular constraints, which the Court will address in the following paragraphs.", "184. The Court reiterates, first of all, that in order to be permissible under Article 5 of the Convention, any deprivation of liberty must be both lawful under the domestic law of the State and in compliance with the exhaustively enumerated grounds for detention set out in paragraph 1 of that provision. Even in this context, the positive obligation to protect life arising under Article 2 may entail certain requirements for the domestic legal framework in terms of enabling necessary measures to be taken where specific circumstances so require. At the same time, however, any measure entailing a deprivation of liberty will have to fulfil the requirements of the relevant domestic law as well as the specific conditions set out in Article 5 and the case-law pertaining to it.", "185. In this connection the Court reiterates firstly, with regard to preventive measures, that for the purposes of Article 5 § 1 (b), which provides for deprivation of liberty for non-compliance with the lawful orders of a court or in order to secure the fulfilment of any obligation prescribed by law, the Court has consistently held that the obligation not to commit a criminal offence can only be considered as “specific and concrete” if the place and time of the imminent commission of the offence and its potential victim or victims have been sufficiently specified. In the context of a duty to refrain from doing something, as distinct from a duty to perform a specific act, it is necessary, prior to concluding that a person has failed to satisfy the obligation at issue, that the person concerned was made aware of the specific act which he or she was to refrain from committing and showed himself or herself not to be willing to refrain from so doing (see Ostendorf v. Germany, no. 15598/08, §§ 93-94, 7 March 2013). In particular, the Court has stated that the duty not to commit a criminal offence in the imminent future cannot be considered sufficiently concrete and specific as long as no specific measures have been ordered which have not been complied with (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 83, 22 October 2018).", "186. Secondly, the Court reiterates that Article 5 § 1 (c) is concerned with detention for the purpose of bringing the person before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. As regards the second limb of this provision, the Court has acknowledged that it provides a distinct ground for detention, independent of the existence of “a reasonable suspicion of his having committed an offence”. It thus applies to preventive detention outside criminal proceedings (see S., V. and A. v. Denmark [GC], cited above, §§ 114-16). Even in the context of this limb of Article 5 § 1 (c), however, the Court has held that the provision does not permit a policy of general prevention directed against individuals who are perceived by the authorities as being dangerous or having the propensity to commit unlawful acts. This ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence as regards, in particular, the place and time of its commission and its victim(s). In order for a detention to be justified under the second limb of Article 5 § 1 (c), the authorities must show convincingly that the person concerned would in all likelihood have been involved in the concrete and specific offence, had its commission not been prevented by the detention (see S., V. and A. v. Denmark [GC], cited above, §§ 89 and 91). The Court, in its case-law on Article 5 § 1 (b) and the second limb of Article 5 § 1 (c) (detention necessary to prevent a person from committing an offence), has authorised such detention for preventive purposes only for very short periods of time (four hours in Ostendorf (cited above, § 75), and eight hours in S., V. and A. (cited above, §§ 134 and 137)).", "187. Thirdly, as regards the first limb of Article 5 § 1 (c), which governs pre-trial detention, the Court reiterates that this provision can only apply in the context of criminal proceedings relating to an offence that has already been committed. It permits detention for the purpose of bringing a person before the competent legal authority on reasonable suspicion of his having committed the offence (see Şahin Alpay v. Turkey, no. 16538/17, § 103, 20 March 2018; Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000 ‑ IX; and Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 72, ECHR 2011 (extracts)). Accordingly, pre-trial detention is capable of operating as a preventive measure only to the extent that it is justified on the grounds of a reasonable suspicion concerning an existing offence in relation to which criminal proceedings are pending. The prevention of further offences may thus be a secondary effect of such detention, and the risk of reoffending may be taken into account as an element in the assessment of the reasons for imposing or prolonging pre-trial detention, always on the condition that the existence of a reasonable suspicion regarding the offence already committed persists. In this connection the Court reiterates that whereas the persistence of reasonable suspicion is a condition sine qua non for the validity of any pre-trial detention, the requirement of other “relevant and sufficient” reasons in addition to the persistence of reasonable suspicion applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 92 and 102, 5 July 2016). The Court further reiterates that its case-law has identified certain basic acceptable categories of such reasons, which include the risk of the detainee committing further offences in the event of his or her release. On this point the Court has held that the danger of further offences must be a plausible one, and the measure appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned (see Clooth v. Belgium, 12 December 1991, § 40, Series A no. 225).", "188. As far as decisions on pre-trial detention under Article 5 § 1 (c) are concerned, the Court notes that while pre-trial detention can never be used as a purely preventive measure, the facts and results of any risk assessment carried out with an eye to the possible need for preventive operational measures may be taken into account in the context of the assessment of the risk of further offences (past history and prognosis of lethality risk). In addition, as already stated, deprivations of liberty on this ground always require an adequate basis in domestic law. In any event, failure to meet the national standard for pre-trial detention does not relieve the authorities of their responsibility to take other, less intrusive, measures within the scope of their powers which respond adequately to the level of risk identified.", "189. The Court further notes that certain other provisions of Article 5 § 1 regarding permissible grounds for detention may in certain circumstances also be relevant for the assessment of preventive operational measures in the context of domestic violence, in particular Article 5 § 1 (e). In the light of the facts and complaints raised in the present case, however, there is no need to enter into any detailed discussion of this point.", "(v) Summary of the obligations incumbent on the State authorities in the context of domestic violence", "190. To summarise, the Court reiterates that an immediate response to allegations of domestic violence is required from the authorities (see paragraph 165 above). The authorities must establish whether there exists a real and immediate risk to the life of one or more identified victims of domestic violence by carrying out an autonomous, proactive and comprehensive risk assessment (see paragraphs 168 et seq. above). The reality and immediacy of the risk must be assessed taking due account of the particular context of domestic violence cases (see paragraph 164 above). If the outcome of the risk assessment is that there is a real and immediate risk to life, the authorities’ obligation to take preventive operational measures is triggered. Such measures must be adequate and proportionate to the level of the risk assessed (see paragraphs 177 et seq. above).", "Application of the above principles to the instant case", "(a) Whether the authorities reacted immediately to the allegations of domestic violence", "191. At the outset, the Court emphasises that in the instant case, unlike in many other cases of domestic or gender-based violence before it (see, for example, Opuz, § 136, and Talpis, § 114, both cited above), there were no delays or inactivity on the part of the national authorities in responding to the applicant’s allegations of domestic violence. On the contrary: both in 2010 and 2012 the authorities responded immediately to the applicant’s allegations, took evidence and issued barring and protection orders. In that context, the Court notes that the police had a checklist of specific risk factors to consider in the event of an intervention under section 38a of the Security Police Act (see the Government’s observations, paragraph 129 above).", "192. The applicant herself confirmed in her observations that she was not complaining about any delay or inactivity on the part of the authorities, but rather about the choice of the measures taken. The Grand Chamber thus endorses the Chamber’s findings in that regard (see § 67 of the Chamber judgment).", "193. Moreover, the Court notes that the police accompanied the applicant to the family home after she had made her report, hence ensuring that she would not have to encounter her husband alone after having reported him to the police. They also informed her, by means of a leaflet, about the further options available to her in order to be protected from E., namely the possibility of applying for a temporary restraining order under sections 382b and 382e of the Enforcement Act. The officers then took the husband with them to the police station for questioning, and confiscated his keys to the family apartment (see paragraphs 25, 26, 55 and 57 above). In addition, the Court welcomes the fact that one of the police officers who responded to the applicant’s allegations of violence was specially trained and experienced in handling domestic violence cases (see paragraph 17 above and the Government’s submissions, paragraph 133 above).", "194. The Court considers that the above measures demonstrate that the authorities displayed the required special diligence in their immediate response to the applicant’s allegations of domestic violence.", "(b) The quality of the risk assessment", "195. Next, the Court will examine the quality of the authorities’ risk assessment (see paragraph 168 above). The Court reiterates that it must look at the facts strictly as they were known to the authorities at the material time, and not with the benefit of hindsight (see Bubbins, cited above, § 147 ).", "196. Firstly, the Court is satisfied that the authorities’ risk assessment can be considered to have been carried out autonomously and in a proactive manner, as the police did not merely rely on the account of the events provided by the applicant, who moreover was accompanied by her long ‑ standing expert counsellor from the Centre for Protection from Violence, but based their assessment on several other factors and items of evidence. On the very day of the applicant’s report the police questioned all the persons directly involved, namely the applicant, her husband and their children, and drew up detailed records of their statements. They also took evidence in the form of pictures of the visible injuries the applicant had sustained. The applicant also underwent a medical examination (see paragraph 21 above).", "197. The police further carried out an online search of the records regarding the previous barring and protection orders and temporary restraining orders and injunctions issued against E. They were aware that he had one previous conviction for domestic violence and dangerous threatening behaviour, and that he had been issued with a barring and protection order some two years earlier. Moreover, the police checked whether there were any weapons registered in the applicant’s husband’s name, a check which produced a negative result (see paragraph 22 above). In that context the Court reiterates that it is important for the authorities to check whether an alleged perpetrator has access to or is in possession of firearms (see Kontrová, cited above, § 52, and Article 51 of the Istanbul Convention, paragraph 82 above).", "198. Secondly, the Court finds that the risk assessment carried out by the police considered major known risk factors in this context, as can be seen from the report they drew up (see paragraph 27 above). In particular, they took into account the circumstances that a rape had been reported, that the applicant had visible signs of violence in the form of haematomas, that she was tearful and very scared, that she had been the subject of threats, and that the children had also been subjected to violence. The police explicitly noted a number of other relevant risk factors, namely known reported and unreported previous acts of violence, escalation, current stress factors such as unemployment, divorce and/or separation, and a strong tendency by E. to trivialise violence. They further took into account E.’s behaviour, namely the fact that he had been mildly agitated but cooperative and had voluntarily accompanied the officers to the police station. The police also noted that there were no firearms registered in E.’s name.", "199. The Court considers that by identifying the above specific factors, the authorities demonstrated that they had duly taken into account the domestic violence context of the instant case in their risk assessment.", "200. Turning to the threats, and in particular the death threats uttered by E., the Court notes that they had all been targeted at the applicant, be it directly, or indirectly by threatening to hurt or kill her, those closest to her, or himself (see paragraph 19 above). The Court reiterates in that context that (death) threats should be taken seriously and assessed as to their credibility (see Kontrová, § 52, cited above; Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 52 and 58, 15 January 2009; Opuz, § 141; Eremia, § 60; Talpis, § 111; and Halime Kılıç, §§ 93-94, all cited above). It notes that the police did not overlook the fact that E. had been making death threats against the applicant and had choked her, as is evident from the report sent to the public prosecutor’s office in the late evening of the same day (see paragraph 30 above), where these factors were explicitly referred to.", "201. The Court considers that the public prosecutor on duty also had at his disposal the most relevant facts of the case when deciding on the next steps to take. He was informed by phone on the very same day of the allegations against E. and the circumstances of the issuance of the barring and protection order, immediately after it had been issued. In his note for the file he summarised the main elements of the case, ordered further investigative steps (questioning of the children, submission of the reports on the investigations) and instituted criminal proceedings against E. for the crimes of which he was suspected (see paragraph 28 above). Still on the same evening, the public prosecutor on duty received the reports he had requested (see paragraph 30 above).", "202. The Court is therefore satisfied that the risk assessment carried out by the authorities as regards the applicant, while not following any standardised risk assessment procedure, fulfilled the requirements of being autonomous, proactive and comprehensive. It therefore remains for the Court to determine whether, notwithstanding the issuance of the barring and protection order, a real and immediate risk to the life of the applicant’s son was discernible.", "(c) Whether the authorities knew or ought to have known that there was a real and immediate risk to the life of the applicant’s son", "203. The Court observes that it is clear from the authorities’ risk assessment that the following information was available to them at the relevant time.", "(i) On the basis of E.’s criminal record and the victims’ police interviews, the authorities knew that E. had a criminal conviction for causing bodily harm to the applicant in 2010, for which he was still within the probationary period (see paragraphs 12-15 above). In her interviews with the police in the days before the tragic event, the applicant had reported other instances of violence by the husband in the course of their marriage, including the events of 19 May 2012. Since the 2010 incident, the applicant had received regular advice from a counsellor from the Centre for Protection from Violence (see paragraphs 16 and 19 above).", "(ii) The applicant’s children had also both been subjected to violence by their father – physically by receiving slaps, and psychologically by having to witness him abusing their mother – but were not the main target of E.’s violence (see paragraphs 18-20 above).", "(iii) According to the applicant’s statements to the police, the violence had escalated three days earlier, when her husband had choked and raped her (see paragraph 18 above).", "(iv) The applicant had stated that the reason for this escalation was her intention to separate from him (see paragraph 18 above).", "(v) The applicant had reported that her husband had a gambling addiction and other mental health problems, which, in her view, had contributed to the worsening of E.’s aggressiveness and violence towards her. In particular, the beatings and the slapping of the children occurred especially when he returned from the betting shop (see paragraph 20 above). The applicant’s husband had undergone in-patient treatment at a psychiatric hospital for his gambling addiction and other (unspecified) mental health issues, which, however, appears to have failed (see paragraph 19 above).", "(vi) According to the record of her police interview, the applicant found the threats her husband had been uttering against her and her children since March 2012, which included death threats, to be particularly worrisome. She had further told the police that she took these threats very seriously (see paragraph 19 above).", "(viii) The applicant had mentioned to the police that her husband at times took away her mobile phone and locked her in their apartment so that she could not leave (see paragraph 20 above).", "204. On the basis of the above evidence, the authorities concluded that the applicant was at risk of further violence and issued a barring and protection order against E. under section 38a of the Security Police Act (see paragraph 25 above). The Court notes, in this context, that police officers with significant relevant experience and training were involved in making this assessment, which the Court should be careful not to question in a facile manner with the benefit of hindsight.", "205. While it is true that no separate risk assessment was explicitly carried out in relation to the children, the Court considers that on the basis of the information available at the relevant time this would not have changed the situation, for the reasons set out below.", "206. The Court reiterates that the applicant’s children had been subjected to slaps by their father and to the mental strain of having to witness violence against their mother, which must in no way be underestimated. However, according to the information which the authorities had to hand in the instant case, the children had not been the main target of E.’s violence or threats. The latter had all been targeted at the applicant, be it directly or indirectly (see paragraph 200 above). The predominant reason for the applicant’s report to the police on 22 May 2012 was the alleged rape and choking the weekend before and the ongoing domestic violence and threats against her. Moreover, the Court agrees with the Government that even though the police report on the issuance of the barring and protection order did not explicitly list the children as endangered persons within the meaning of section 38a of the Security Police Act, the report for the criminal investigation forwarded to the prosecutor on the same day at 11.20 p.m. explicitly mentioned them as “victims” of the indicated crimes. In addition, their witness statements were attached to that report. The authorities could legitimately assume that the children were protected in the domestic sphere from potential non-lethal forms of violence and harassment by their father to the same extent as the applicant, through the barring and protection order (see paragraph 126 above). There were no indications of a risk to the children at their school, let alone a lethality risk (see paragraph 128 above). It also appears – although this is not in itself decisive – that the applicant and her counsellor from the Centre for Protection from Violence did not themselves consider that the level of threat justified requesting a complete ban on contact between the father and the children.", "207. Turning to the applicant’s argument to the effect that the seriousness of the violence perpetrated against her, combined with E.’s threats of further and possibly lethal violence, was sufficient to justify taking him into pre-trial detention, the Court notes that the applicant’s claim that pre-trial detention should have been ordered rested on a combination of grounds, namely E.’s alleged recent offences as well as a risk of his reoffending based on his criminal record. E.’s threats were not deemed sufficiently serious or credible by the authorities to point to a lethality risk that would have justified pre-trial detention or other more stringent preventive measures than the barring and protection order. The Court finds no reason to call into question the authorities’ assessment that, on the basis of the information available to them at the relevant time, it did not appear likely that E. would obtain a firearm, go to his children’s school and take his own son’s life in such a rapid escalation of events.", "208. Lastly, the Court notes that the authorities appear to have placed some emphasis on the calm demeanour of the applicant’s husband towards the police, which the Court considers as potentially misleading in a domestic violence context and which should not be decisive in a risk assessment. However, the Court is not satisfied that this element of the assessment is sufficient to cast doubt on the conclusion that no lethality risk to the children was discernible at the time. Similarly, while in retrospect providing speedy information to the children’s school or the child protection authorities would have been desirable, at the time of the events it was not foreseeable for the authorities that such a measure was required to prevent a lethal attack on A. Thus, the omission of this information, the sharing of which was not provided for under domestic law at the time of the events, cannot be regarded as a breach of their duty of special diligence in the context of the authorities’ positive obligations under the Osman test.", "209. For the above reasons, the Court agrees with the Government that, on the basis of what was known to the authorities at the material time, there were no indications of a real and immediate risk of further violence against the applicant’s son outside the areas for which a barring order had been issued, let alone a lethality risk. The authorities’ assessment identified a certain level of non-lethal risk to the children in the context of the domestic violence perpetrated by the father, the primary target of which had been the applicant. The measures ordered by the authorities appear, in the light of the result of the risk assessment, to have been adequate to contain any risk of further violence against the children. The authorities were thorough and conscientious in taking all necessary protective measures. No real and immediate risk of an attack on the children’s lives was discernible under the Osman test as applied in the context of domestic violence (see paragraph 164 above). Therefore, there was no obligation incumbent on the authorities to take further preventive operational measures specifically with regard to the applicant’s children, whether in private or public spaces, such as issuing a barring order for the children’s school.", "210. Furthermore, the Court, taking into account the requirements of national criminal law (see paragraphs 65 et seq. above) and those flowing from Article 5 of the Convention safeguarding the rights of the accused (see paragraph 182 above), finds no reason to question the finding of the Austrian courts that the authorities had acted lawfully in not taking E. into pre-trial detention. In this context the Court reiterates that under Article 5 no detention will be permissible unless it is in compliance with domestic law. The Court further notes that the applicant raised no complaint regarding the domestic legal framework concerning grounds for detention in relation to the positive obligations arising under Article 2. Accordingly, the examination of this issue falls outside the scope of the present case.", "(d) Conclusion", "211. The Court concludes that the authorities displayed the required special diligence in responding swiftly to the applicant’s allegations of domestic violence, and duly took into account the specific domestic violence context of the case. They conducted an autonomous, proactive and comprehensive risk assessment, the result of which led them to issue a barring and protection order. However, the risk assessment did not indicate a real and immediate lethality risk to the applicant’s son. Therefore, no obligation was triggered to take preventive operational measures in that regard.", "212. Accordingly, there has been no violation of Article 2 of the Convention in its substantive limb.", "213. In view of this conclusion, the Court considers it unnecessary to rule on the Government’s preliminary objection relating to the question of exhaustion of domestic remedies (see, mutatis mutandis, Bennich ‑ Zalewski v. Poland, no. 59857/00, § 98, 22 April 2008 ).", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "214. The applicant alleged that by failing to protect her against domestic violence the State had discriminated against her as a woman, in violation of Article 14 of the Convention. The Court notes, however, that the applicant did not raise this complaint in her initial application to the Court (which was lodged on 16 December 2015), raising it for the first time in her submissions to the Grand Chamber on 10 January 2020.", "215. As the last domestic decision was served on the applicant on 16 June 2015 (see paragraph 44 above), this complaint was submitted outside the six-month time-limit provided for by Article 35 § 1 of the Convention and must therefore be declared inadmissible (see Denisov v. Ukraine [GC], no. 76639/11, §§ 135-36, 25 September 2019 )." ]

[ "2. The applicant was born in November 1993. The applicant was represented by Mr M. Ščetar, a lawyer practising in Križevci.", "3. The Government were represented by their Agent, Ms Š. Stažnik.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background to the case", "5. Between 2008 and 2012 the applicant was a student in a public high school.", "6. On 19 September 2011 the applicant and several of his classmates were late for their mathematics class with teacher R.V. When they entered the classroom, R.V. started shouting, telling the applicant that he was “a moron [ kreten jedan ], an idiot [ idijot ], a fool [ budala ], hillbilly [ seljačina ], a stupid cop [ žandar glupi ]” (because the applicant’s father worked in the police).", "7. On 20 September 2011, after the applicant had reported the insults to the head teacher, R.V. stated during his class that “... when you say to a fool that he is a fool, that should not be an insult for him. The head teacher called me saying that I had insulted some students. You don’t know what the insults are, but you will see what the insults are.”", "8. On 28 September 2011, during class, R.V. approached the applicant and asked him to turn the page in a book. As the applicant turned the wrong page, R.V. said “You, fool, not that page. I didn’t mean to insult you, because I know you will call your dad.”", "9. In the period between September and December 2011 on two occasions the applicant underwent psychological treatment related to the alleged harassment by R.V. His general practitioner gave a working diagnosis of post-traumatic stress disorder related to his harassment at school by R.V., and a psychologist in the local hospital found that due to the psychological harassment at school the applicant was suffering from an acute anxiety disorder and recommended increased support and understanding at school. The psychologist also found that the applicant was otherwise growing up in a functional family and that he was very good at school.", "10. According to the applicant, his conflict with R.V. and R.V.’s subsequent involvement in his final mathematics exam resulted in his poor overall performance. He therefore failed to get on to his chosen university course.", "11. According to a report of the National Centre for the External Evaluation of Education ( Nacionalni centar za vanjsko vrednovanje obrazovanja ) of 5 December 2014, which the Government provided to the Court, the exam process was anonymised and the reason for the applicant’s poor performance was his failure to follow properly the instructions for filling in the examination papers.", "administrative inquiry concerning the applicant’s allegations of harassment", "12. By a letter of 21 September 2011 the applicant’s father informed the school authorities, the Ombudsperson for Children ( Pravobraniteljica za djecu ), the education inspectorate, the police and the competent State Attorney’s Office ( Općinsko državno odvjetništvo ) of the applicant’s harassment by R.V., and requested protection for him. He repeated the same complaints on 28 September 2011.", "13. In connection with the applicant’s allegations, on 3 October 2011 the school psychologist invited R.V. for an interview. R.V. admitted that he had said the words alleged by the applicant during the event of 19 September 2011 (see paragraph 6 above) but denied using the insult “stupid cop”. He also argued that he had not addressed the applicant personally, but a group of students, and that he could not understand why the applicant felt so affected by the event. The school psychologist reproached R.V. for using inappropriate words, which he fully accepted, and he promised not to use insults anymore.", "14. On 4 October 2011 the school psychologist interviewed the applicant. He stated that he felt stressed and uncomfortable during mathematics classes because of the situation with R.V. He also explained that he wanted to either change school or the class, or have the teacher removed from his class. The school psychologist insisted that the applicant should try to talk to R.V. and invited him to inform her by 6 October 2011 whether he would be willing to do that. The applicant did not inform the school psychologist of his decision.", "15. On 7 October 2011 the applicant’s father informed the Ministry of Education ( Ministarstvo znanosti, obrazovanja i športa; hereinafter: “the Ministry”) of the applicant’s harassment by R.V. and requested protection for him. The Ministry replied on 4 November 2011, indicating that the case had been forwarded to the Education Agency ( Agencija za odgoj i obrazovanje; hereinafter: “the “Agency”).", "16. The applicant’s father’s complaints resulted in an assessment of the situation by the Agency on 22 November 2011. This assessment consisted of an interview with R.V., the school psychologist, the head teacher, the applicant and his classmates. The Agency also analysed the relevant documents and conducted an anonymous survey amongst the students concerning their satisfaction with R.V.’s teaching.", "17. The Agency found that R.V. was duly complying with all his teaching tasks. He was a renowned mathematics teacher, who had even received an award from the Minister of Education for his work. The anonymous survey showed that the students were satisfied with R.V., and that their major objection was that he should spend more time with less successful students. Only two students stated that they would like to change the teacher.", "18. The same view was repeated in individual interviews with the students conducted by an Agency official. She also interviewed R.V., who stated that he had not had any malicious intention when being angry at the students for being late, and that he could not understand why the applicant had got so upset. The interviews with the head teacher and the school psychologist suggested that the applicant’s father had been very upset about the situation. He refused to discuss the matter further with them and preferred to have the competent institutions investigate the case.", "19. In its conclusions, the Agency stressed that R.V. was a good teacher with good intentions, and that he felt sorry for not having an opportunity to discuss the possible problems with the applicant’s father. The Agency found that the situation created by the conflict had damaged the applicant’s progress. It suggested that the matter be resolved by a discussion between the school authorities and the applicant’s father. It also instructed the school authorities to report on the further developments in the case.", "20. After several unsuccessful attempts to hold a meeting at the school, on 14 December 2011 the applicant’s father attended a meeting with the head teacher. According to a report from the meeting prepared by the head teacher, the applicant’s father had explained that his son was now satisfied with his relationship with R.V., and that their conflict had been settled.", "21. The school authorities informed the Agency and the Ombudsperson for Children of the matter.", "The applicant’s criminal complaint", "22. On 4 November 2011 the applicant lodged a criminal complaint with the police, alleging harassment by R.V.", "23. In the course of the proceedings, the police and the relevant State Attorney’s Office questioned the applicant and a number of students and officials from the school, as well as R.V. They also obtained relevant documentation concerning the applicant’s complaints.", "24. Several of the students or former students from the school stated that the teacher R.V. sometimes used inappropriate and insulting language. He was particularly harsh with those who were not good in mathematics, such as the applicant. A student, L.J., stated that he had even stopped paying attention to the words such as “fools”, “idiots” and “idlers” as it was a usual talk at the mathematics class. Some of the students considered the use of such a language to be a way of joking by the teacher. A former student, S.J., stated that the teacher had made some comments of a sexual nature concerning her during the class. Student M.J. explained that there had been an inquiry by the education authorities in the course of which the students had been asked to reply to a questionnaire. Most of the students had been afraid to answer the questions honestly and so was M.J. as he had not wanted to have problems. M.J. also explained that before this questionnaire, there had been another questionnaire organised within the school to which the students had answered honestly but then the teacher R.V. went “crazy” and yelled at them. It was one of the reasons why they had not honestly answered the questionnaire organised by the education authorities.", "25. On 18 June 2012 the State Attorney’s Office rejected the applicant’s criminal complaint. The relevant part of the decision reads:", "“The statements of the students show that the suspect has an unconventional approach. Some of the students no longer pay attention to what he says when teaching, because on several occasions he has used improper words. However, he has never addressed a particular student. It can be therefore concluded in the case at issue, given the circumstances in which the impugned conduct occurred, that the insults were not of such intensity as to amount to harassment. In accordance with the courts’ case-law, examples of psychological harassment concern the recurrent insulting of minors, as a result of which they sustain severe psychological trauma damaging their physical and mental health. Although [the applicant] sought medical treatment in connection with the impugned conduct, and although he suffered certain health problems, they were not of such intensity that it can be concluded that his physical and mental health was damaged. Moreover, in order to amount to psychological harassment, insults should not only be the result of an aroused reaction, but the result of an intensive aversion to the victim, and an expression of cruel and inhuman behaviour. From the available information, and in particular from the statements of [the applicant’s] classmates, it cannot be concluded that the suspect’s conduct towards [the applicant] was of such a nature that it would [amount to] cruel and inhuman behaviour. This is particularly true in view of [the students’] statements that [R.V.] usually behaved in an unusual manner, and that some of the students did not pay attention [to such behaviour], and the victim himself did not suffer further [adverse consequences such as] bad marks at school.”", "26. The State Attorney’s Office advised the applicant that he could take over the criminal prosecution as a subsidiary prosecutor in relation to the alleged offence of harassment or institute a private prosecution in relation to charges of insult.", "proceedings before the Constitutional Court", "27. In August 2012 the applicant brought his complaints before the Constitutional Court ( Ustavni sud Republike Hrvatske ). He alleged, in particular, harassment by the teacher at school and inadequate response of the school, the Ministry, the Agency and the State Attorney’s Office concerning his complaints of harassment. He also challenged the decision concerning the evaluation of his final mathematics exam (see paragraphs 10-11 above).", "28. On 18 October 2012 the Constitutional Court declared the applicant’s constitutional complaints inadmissible on the grounds that the State Attorney’s Office’s decision and the decision on the evaluation of his final mathematics exam had not been measures or decisions which had decided any of his rights on the merits against which a constitutional complaint was permitted.", "29. The decisions of the Constitutional Court were served on the applicant on 30 October 2012." ]

[ "RELEVANT LEGAL FRAMEWORK", "Relevant domestic lawConstitution", "Constitution", "Constitution", "30. The Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) prohibits any form of ill-treatment (Article 23). It also guarantees the right to respect for and legal protection of private life and dignity (Article 35). The Constitution obliges the State to protect children and youth (Article 63) and also provides that “[e]veryone shall have the duty to protect children ...” (Article 65).", "31. The relevant part of section 62 of the Constitutional Court Act, and the related Constitutional Court’s case-law, are set out in Remetin v. Croatia (no. 29525/10, §§ 58 and 64-67, 11 December 2012), and Pavlović and Others v. Croatia (no. 13274/11, §§ 17-21, 2 April 2015).", "Criminal law provisions", "32. The Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, with further amendments), as applicable at the relevant time, in Article 213 proscribed neglect and ill-treatment of a child or minor. This related, inter alia, to a severe neglecting of duties in education (paragraph 1) and direct abuse (paragraph 2). The aggravating forms of the offence, relating to serious bodily injury or sever impairment of health resulting from the neglecting of duties or abuse, were proscribed in paragraph 3.", "33. Under the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette, nos. 152/2008, with further amendments) there is no possibility of a judicial review of the decision not to prosecute. However, if the State Attorney has declined to prosecute, the victim has the right to take over the prosecution (as a “subsidiary prosecutor”) and bring a case before the relevant criminal court (Articles 55 and 58).", "Supervision of the education system", "34. The relevant Act on Education in Primary and Secondary Schools ( Zakon o odgoju i obrazovanju u osnovnoj i srednjoj školi, Official Gazette no. 87/2008, with further amendments) provided for the right of individual complaint as one of the basic rights of students (section 61(1)). It also required schools to take necessary measures for the protection of students’ well-being (section 67). Section 70 provided for the active protection of students from any form of harassment or ill-treatment and provided for the duty of school authorities to report such occurrences to the competent authorities (section 70). Under sections 138 and 149, the Act envisaged supervision of the school education system through education inspection and professional pedagogical supervision.", "35. Education inspection was to be carried out by the education inspectorate, which is one of the Ministry’s organisational units. Under section 11(1.13) of the relevant Education Inspection Act ( Zakon o prosvjetnoj inspekciji, Official Gazette no. 61/2011, with further amendments), one of the central duties of education inspection was to control the manner in which educational staff in schools complied with their duties and responsibilities towards students. In cases of ill-treatment or inadequate behaviour towards a student, an education inspector could question the student (section 15). If professional pedagogical supervision was needed prior to the adoption of a decision by the education inspectorate, a further assessment could be commissioned. If the results of the inspection provided a sufficient basis for a decision, the education inspector could order the adoption of relevant measures for the protection of students, as well as institute minor offence proceedings, or, in the event of findings relating to criminal conduct, refer the case to the competent prosecuting authorities (sections 23-25).", "36. The applicable Act on Professional Pedagogical Supervision ( Zakon o stručno-pedagoškom nadzoru, Official Gazette no. 73/1997) envisages professional pedagogical supervision as an assessment of the performance of teaching tasks, and authorises a supervising official to indicate the measures which need to be taken for the elimination of identified irregularities and omissions (sections 8-12).", "37. The Education Agency Act ( Zakon o Agenciji za odgoj i obrazovanje, Official Gazette no. 85/2006) establishes the Education Agency as the competent body to carry out professional pedagogical supervision (section 4(3)). Under section 5, it obliges school authorities to provide relevant documents and cooperate in the supervision process.", "Civil Obligations Act", "38. The Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 35/2005, with further amendments) provides for a possibility of instituting the civil proceedings to protect the rights of personality, which include, inter alia, the right to physical and mental health and dignity (sections 19, 1046, 1048 and 1100).", "International law and materialsUnited Nations", "United Nations", "United Nations", "39. The Convention on the Rights of the Child, 20 November 1989, requires that in all actions concerning children, the best interests of the child must be a primary consideration (Article 3). With regard to measures of school discipline, it provides that States Parties must take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with that Convention (Article 28(2)).", "40. The report by the Secretary General to the General Assembly on the promotion and protection of the rights of children of 29 August 2006 (A/61/299) identified violence perpetrated by teachers and other school staff, which also includes humiliating forms of psychological punishment, as one of the issues requiring a proper social reaction (paragraph 50). It stressed that those who oversee and work in educational settings have a duty to provide safe environments which support and promote children’s dignity and development.", "41. With regard to the relevant measures which should be adopted, the report made the following recommendations:", "“98. I urge States to prohibit all forms of violence against children, in all settings, including all corporal punishment, harmful traditional practices, ... and ... other cruel, inhuman or degrading treatment or punishment, as required by international treaties, ...", "105. I recommend that States should build community confidence in the justice system by bringing all perpetrators of violence against children to justice and ensure that they are held accountable through appropriate criminal, civil, administrative and professional proceedings and sanctions. ...", "111. ... I recommend that States:", "(b) Ensure that school principals and teachers use non-violent teaching and learning strategies and adopt classroom management and disciplinary measures that are not based on fear, threats, humiliation or physical force; ...”", "42. The Committee on the Rights of the Child, in General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment ( inter alia, Article 19, Article 28 paragraph 2, and Article 37), CRC/C/GC/8 of 2 March 2007, stressed that, in addition to corporal punishment, which is considered to be invariably degrading, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention on the Rights of the Child. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child (paragraph 11). The Committee on the Rights of the Child rejected any justification of violence and humiliation as forms of punishment for children but stressed that this did not mean rejecting the positive concept of discipline (paragraph 13). The Committee further insisted on the distinct nature of children, their initial dependent and developmental state, their unique human potential as well as their vulnerability, which all demanded the need for more, rather than less, legal and other protection from all forms of violence (paragraph 21). The Committee also emphasised that eliminating violent and humiliating punishment of children, through law reform and other necessary measures, was an immediate and unqualified obligation of States (paragraph 22).", "43. The United Nations General Assembly adopted a Resolution on the rights of the child, A/RES/62/141, 22 February 2008, which in the relevant part provides:", "“52. Condemns all forms of violence against children, including ... mental, psychological ... violence ... and other cruel, inhuman or degrading treatment, ... and urges States to strengthen efforts to prevent and protect children from all such violence through a comprehensive approach and to develop a multifaceted and systematic framework, which is integrated into national planning processes, to respond to violence against children; ...", "57. Urges all States: ...", "( b ) To consider taking appropriate measures to assert the right of children to respect for their human dignity and physical integrity and to prohibit and eliminate any emotional or physical violence or any other humiliating or degrading treatment;", "( c ) To give priority attention to the prevention of all forms of violence against children and to addressing its underlying causes, through a systematic, comprehensive and multifaceted approach;", "( d ) To protect children from all forms of violence or abuse by all those who work with and for children, including in educational settings ...”", "44. In the General comment No. 13 (2011): The right of the child to freedom from all forms of violence, CRC/C/GC/13, 18 April 2011, the Committee on the Rights of the Child stressed that the term “mental violence” encompasses psychological maltreatment, mental abuse, verbal abuse and emotional abuse or neglect, including insults, name-calling, humiliation, belittling, ridiculing and hurting a child’s feelings. The Committee also noted the following (paragraph 17):", "The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. ‘All forms of physical or mental violence’ does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.”", "Council of Europe", "45. The relevant early Council of Europe materials concerning child protection are summarised in O’Keeffe v. Ireland [GC], no. 35810/09, §§ 91-92, ECHR 2014 (extracts).", "46. Further relevant material of the Parliamentary Assembly of the Council of Europe (“PACE”), reaffirmed in Resolution 1803 (2011) on Education against violence at school, includes: Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children; Recommendation 1778 (2007) on child victims: stamping out all forms of violence, exploitation and abuse; and Recommendation 1934 (2010) on child abuse in institutions: ensuring full protection of the victims.", "47. In the latter Recommendation, PACE expressed its concerns over the sexual, physical and emotional abuse of children in various institutions, including public and private educational facilities. It therefore urged enhanced protection by adopting legislation to explicitly prohibit all forms of violence against children: physical and mental violence, injury or abuse (including sexual abuse), neglect or negligent treatment, maltreatment or exploitation, in child care institutions, public and private educational institutions, correctional facilities and leisure associations, amongst other institutions. It also stressed the need to criminalise any intentional abuse of a child by a person in a recognised position of trust, authority or influence in relation to the child, and recommended the adoption of legislation providing for ex officio prosecution in all kinds of child abuse cases, based on the principle of the “graded prosecution” of child abuse according to the gravity of offences, which includes measures against all kinds of child abuse (sexual, physical and emotional). Moreover, with regard to the punishment of minors in institutions, the legislative measures are required so as to define as illegal and exclude certain practices which are contrary to their dignity and rights.", "48. The Council of Europe Committee of Ministers, in Recommendation CM/Rec(2009)10 on integrated national strategies for the protection of children from violence, also emphasised the following:", "“Protection against violence", "All children have the right to protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation ... while in the care of ... any other person who has the care of the child.", "Prevention", "The national legal framework should prioritise the prevention of violence and safeguard the rights of the child by taking action, such as:", "Prohibition of violence", "The state has an explicit obligation to secure children’s right to protection from all forms of violence, however mild. Appropriate legislative, administrative, social and educational measures should be taken to prohibit all violence against children at all times and in all settings and to render protection to all children within the state’s jurisdiction. Legal defences and authorisations for any form of violence, including for the purposes of correction, discipline or punishment, within or outside families, should be repealed. Prohibition should imperatively cover: ...", "g. all forms of violence in school;", "h. ... all other cruel, inhuman or degrading treatment or punishment of children, both physical and psychological ...”", "49. Appendix 2 to Recommendation CM/Rec(2009)10 defines the term “psychological violence” as insults, name-calling, ignoring, isolation, rejection, threats, manipulation, emotional indifference, and belittlement, witnessing domestic violence, and other behaviour that can be detrimental to a child’s psychological development and well-being.", "50. The Revised European Social Charter, 3 May 1996, provides that with a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the States must undertake all appropriate and necessary measures designed, inter alia, to protect children and young persons against negligence and violence (Article 17).", "51. In its practice, the European Committee of Social Rights has held the following ( Association for the Protection of All Children (APPROACH) Ltd. v. Belgium, No. 98/2013, decision on the merits 20 January 2015):", "“50. In this regard, the Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal, Complaint No. 34/2006, decision on the merits of 5 December 2006, §§19-21:", "‘19. To comply with Article 17, states’ domestic law must prohibit and penalize all forms of violence against children that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well-being of children.", "20. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children.", "21. Moreover, states must act with due diligence to ensure that such violence is eliminated in practice.’", "54. Further as regards the case law cited by the Government, the Committee notes the Government has not provided any examples of case-law by superior courts showing that the above-mentioned provisions of the Civil Code have been interpreted as prohibiting all forms of violence against children by parents and ‘other persons’, including for educational purposes.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "52. The applicant complained of harassment by a teacher in a public school and the failure of the domestic authorities to respond effectively to his complaints of harassment. He relied on Articles 3, 8 and 13 of the Convention.", "53. The Court finds, being the master of the characterisation to be given in law to the facts of the case (see S.M. v. Croatia [GC], no. 60561/14, § 243, 25 June 2020), that the applicant’s complaints fall to be examined under Article 8. While the complaints of harassment at school may fall to be examined under Article 3 (see, for instance, V.K. v. Russia, no. 68059/13, §§ 171-172, 7 March 2017), the Court notes that the applicant’s allegations of harassment concern verbal abuse by R.V. consisting of three instances in which the latter uttered insults aimed directly or indirectly at the applicant and which all occurred within several days of each other. In such circumstances, having regard to its case-law (see, for instance, R.B. v. Hungary, no. 64602/12, §§ 44-52, 12 April 2016), the Court considers it more appropriate to examine the case from the perspective of the right to respect for private life under Article 8 of the Convention.", "54. Article 8, in its relevant part, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityApplicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "55. The Government contended that the conduct of the teacher had not produced any adverse effects on the applicant’s private life, within the meaning of Article 8 of the Convention.", "56. While it is not clear whether the Government sought to challenge the applicability of Article 8, this being a matter that goes to the Court’s jurisdiction and which the Court must establish on its own motion (see, for instance, Jeanty v. Belgium, no. 82284/17, § 58, 31 March 2020), it finds it important to note the following.", "57. The Court has previously held, in various contexts, that the concept of private life is a broad term not susceptible to exhaustive definition. It includes a person’s physical and psychological integrity (see Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018; see also Remetin v. Croatia, no. 29525/10, § 90, 11 December 2012), and extends to other values such as well-being and dignity, personality development and relations with other human beings (see N.Š. v. Croatia, no. 36908/13, § 95, 10 September 2020, with further references).", "58. In order for Article 8 to come into play, however, an attack on a person must attain a certain level of seriousness and be made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 109 in fine, 14 January 2020). However, in cases relating, inter alia, to Article 8 the Court has stressed the relevance of the age of the minors concerned and the need, where their physical and moral welfare is threatened, for children and other vulnerable members of society to benefit from State protection. The need to take account of the vulnerability of minors has also been affirmed at international level (see Wetjen and Others v. Germany, nos. 68125/14 and 72204/14, § 74, 22 March 2018, with further references).", "59. Measures taken in the field of education may, in certain circumstances, affect the right to respect for private life, but not every act or measure which may be said to affect adversely the moral integrity of a person necessarily gives rise to such an interference (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C). In Costello-Roberts, concerning an instance of corporal punishment at school, the Court found that the treatment complained of by the applicant did not entail adverse effects on the applicant’s physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8. However, since Costello-Roberts, there has been an evolution of social attitudes and legal standards concerning the application of measures of discipline towards children, emphasising the need of protection of children from any form of violence and abuse. This is reflected in various international instruments (see paragraphs 39-51 above) and the Court’s case-law (see, for instance, A, B and C v. Latvia, no. 30808/11, § 152, 31 March 2016; see also V.K. v. Russia, cited above, §§ 171-172, and Wetjen and Others, cited above, §§ 76-78).", "60. In the case at issue, there is no doubt that the insults to which the applicant was subjected by R.V. entailed his emotional disturbance, which affected his psychological well-being, dignity and moral integrity (see paragraph 9 above). Moreover, those insults were uttered in the classroom in front of other students and were thus capable of humiliating and belittling the applicant in the eyes of others. It should also be taken into account that the insults in question were particularly disrespectful towards the applicant and were perpetrated by a teacher in a position of authority and control over him.", "61. In these circumstances, and taking into consideration that it is in the best interests of the applicant as a child, his classmates and the children in general to be effectively protected from any violence or abuse in educational settings (see paragraphs 58-59 above and 80-82 below), the Court finds that there can be no doubt that the treatment complained of by the applicant falls to be examined under the right to respect for private life, within the meaning of Article 8 of the Convention.", "Exhaustion of domestic remedies and compliance with the six-month time-limit", "62. The Government argued that a constitutional complaint had not been a remedy to be exhausted against a decision rejecting the applicant’s criminal complaint. Thus, by waiting for the Constitutional Court to decide upon his constitutional complaint, the applicant had failed to comply with the relevant six-month time-limit. In the Government’s view, instead of lodging a constitutional complaint, the applicant had been required to institute a private criminal prosecution or avail himself of the opportunity to take over the prosecution against R.V. as a subsidiary prosecutor. By failing to do that, the applicant had failed to exhaust the domestic remedies.", "63. The applicant contended that he had instituted a number of proceedings before various domestic authorities concerning his harassment in school, but the relevant authorities had failed to address them properly. Accordingly, he had not been required to use any further remedies as suggested by the Government. The applicant also pointed out that, after the remedies used before the relevant authorities had proved to be ineffective, he had duly lodged a constitutional complaint with the Constitutional Court and brought his application to the Court within the period of six months following the rejection of his constitutional complaint.", "64. In many previous cases against Croatia the Court has already examined and rejected similar objections of the respondent Government concerning applicants’ use of the constitutional complaint before the Constitutional Court before bringing their complaints to the Court (see Pavlović and Others v. Croatia, no. 13274/11, §§ 32-38, 2 April 2015; see also Bajić v. Croatia, no. 41108/10, §§ 68-69, 13 November 2012, and Remetin, cited above, §§ 83-84). It sees no reason to hold otherwise in the present case, where in his constitutional complaint the applicant complained of harassment at school and inadequacy of the response of the relevant domestic authorities, including the school, the Ministry, the Agency and the State Attorney’s Office, to his allegations of harassment (see paragraph 27 above).", "65. With regard to the Government’s objection that the applicant should have pursued a subsidiary or private criminal prosecution, the Court reiterates that once the applicant had lodged a criminal complaint concerning his alleged harassment, he cannot be required to pursue the subsidiary or private criminal prosecution (compare Škorjanec v. Croatia, no. 25536/14, § 46, 28 March 2017). In any event, it is not clear that a criminal prosecution would be the most appropriate procedural avenue in the circumstances of the present case (see paragraph 93 below).", "66. In view of the above, the Court rejects the Government’s objections.", "Non-significant disadvantage", "67. The Government argued that the applicant had not suffered any significant disadvantage, given that his allegations of emotional abuse by R.V. concerned several isolated incidents which had not produced any long ‑ lasting effects on either his emotional well-being or success at school.", "68. The applicant maintained his complaints.", "69. The Court has already found above that the treatment complained of by the applicant entailed his emotional disturbance and affected his psychological well-being and his moral integrity protected under the concept of private life under Article 8 of the Convention (see paragraph 60 above). In such circumstances, given the context of the case, namely the allegations of harassment in school at the hands of a teacher, where any form of violence, however light, is considered unacceptable, the Court finds that there can be no room for application of the non-significant disadvantage criterion (see paragraphs 81-82 and 91 below). The Government’s objection is therefore rejected.", "Conclusion", "70. The Court notes that the applicant’s complaint of harassment in school by the teacher, and the failure of the domestic authorities to react effectively to his complaint of harassment, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Whether the applicant’s complaint of alleged interference with his final mathematics exam is manifestly ill-founded", "71. The Government argued that the applicant’s complaints of adverse effects on his performance in the final exam and his university enrolment were completely unsubstantiated and unfounded. They pointed out that the available material clearly indicated that the applicant’s poor performance on the exam had been the result of his failure to properly follow the instructions for filling in the examination papers.", "72. The applicant maintained that he had effectively completed his exam, but a panel (of which R.V. had been a member) had failed to give him a score for it. In his view, this had been as a result of his poor relationship with R.V.", "73. The Court notes that the material available to it shows that the final mathematics exam which the applicant took was anonymised, and that his poor performance in the exam related to his failure to properly follow the instructions for filling in the examination papers (see paragraph 11 above). There is no indication that the applicant’s examination papers were tampered with. Accordingly, the Court finds that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "(a) The applicant", "74. The applicant contended that he had been harassed by R.V. That had been condoned by the relevant school authorities, and the State authorities had not provided an adequate response. In particular, the head teacher and the school psychologist had taken no effective measures to respond to R.V.’s verbal abuse. At a meeting on 14 December 2011 the head teacher had asked his father to drop all the allegations he had made, otherwise the applicant would not be allowed to finish school. His father had then realised that there was a lack of goodwill in relation to resolving the matter and had asked the head teacher to prevent the applicant from being harassed further.", "75. Moreover, the applicant argued that the measures which the Ministry and the Agency had taken concerning his allegations of harassment at school had been completely ineffective. Likewise, the State Attorney’s Office had failed to assess properly all the relevant circumstances of the case and had rejected his criminal complaint, despite the medical evidence suggesting that he had suffered severe psychological disturbance as a result of the harassment by R.V.", "(b) The Government", "76. The Government maintained that there had been no adverse effects on the applicant’s psychological or physical integrity or well-being as a result of R.V.’s conduct. Even if the applicant had felt insulted by the remarks made by R.V., this in itself could not be considered in breach of the applicant’s Article 8 rights. Moreover, in the Government’s view, the school and the State authorities had properly reacted to the allegations made by the applicant and had tried to settle the dispute between him and the teacher. However, the applicant’s father had not properly participated in the mediation efforts made by the relevant authorities.", "77. In any event, the Government asserted that the efforts made by the authorities, in particular the inspection carried out by the Agency, had produced the desired result, as the applicant’s father had acknowledged in a meeting with the head teacher that the applicant’s conflict with R.V. had been settled. In the Government’s view, all other relevant authorities, including the Ombudsperson for Children and the State Attorney’s Office, had properly discharged their obligations concerning the applicant’s allegations of harassment at school.", "The Court’s assessment", "(a) General principles", "78. The object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private life (see A, B and C v. Latvia, cited above, § 147).", "79. Whether a case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see, for instance, Burlya and Others v. Ukraine, no. 3289/10, § 162, 6 November 2018).", "80. These principles may also be relevant in an education context. While under Article 2 of Protocol No. 1 the State has an obligation to secure to children their right to education, the sending of a child to school necessarily involves some degree of interference with his or her private life under Article 8. Moreover, functions relating to the internal administration of a school, such as discipline, are an inherent part of the education process and the right to education (see Costello-Roberts, cited above, § 27).", "81. Although not all measures in the field of education will affect the right to respect for private life, it would be impossible to reconcile any acts of violence or abuse by teachers and other officials in educational institutions with the children’s right to education and the respect for their private life (see paragraphs 58-59 above). The need to remove any such treatment from educational environments has also been clearly affirmed at international level (see paragraphs 39-51 above).", "82. In the context of provision of an important public service such as education (see Grzelak v. Poland, no. 7710/02, § 87 in fine, 15 June 2010), the essential role of the education authorities is to protect the health and well-being of students having regard, in particular, to their vulnerability relating to their young age. Thus, the primary duty of the education authorities is to ensure the students’ safety in order to protect them from any form of violence during the time in which they are under the supervision by the education authorities (see Kayak v. Turkey, no. 60444/08, § 59, 10 July 2012).", "(b) Application of these principles to the present case", "83. The Court has already found above that the treatment complained of by the applicant entailed an adverse effect on his psychological well-being and his moral integrity, giving rise to an issue under Article 8 (see paragraphs 60-61 above). There is no doubt that the treatment entailing such consequences, administered by a teacher in a public school while the applicant was under his control, amounted to an interference under Article 8 (see, mutatis mutandis, V.K. v. Russia, cited above, § 183).", "84. It remains to be determined whether such an interference was justified. In making that assessment, the Court will have regard to the fact that the applicant complained of not only the harassment by the teacher, but also of the failure of the relevant authorities to react to his allegations of harassment; a matter which may more appropriately be analysed in terms of the State’s positive duty (see, for instance, Radionova v. Russia (dec.), no. 36082/02, 28 March 2009). In any event, it should be reiterated that whether a case be analysed in terms of a positive duty on the State or an interference by a public authority, the applicable principles are broadly similar (see paragraph 79 above).", "(i) The applicant’s allegations of harassment by the teacher", "85. The Court notes that the teacher R.V. initially uttered various insults against the applicant for allegedly being late for class (see paragraph 6 above). R.V. then verbally abused the applicant on two further occasions. In particular, the day after the initial incident, R.V. indirectly referred to the fact that the applicant had reported him to the head teacher by saying “when you say to a fool that he is a fool, that should not be an insult for him” (see paragraph 7 above). On a later occasion R.V. again called the applicant “a fool” because the applicant had turned a wrong page in the textbook during a lesson (see paragraph 8 above).", "86. While R.V.’s first insults against the applicant were aimed at disciplining him and his classmates, the two latter occasions cannot be seen as anything but gratuitous verbal abuse against the applicant amounting to his humiliation, belittling and ridiculing. In any case, no justification for R.V.’s conduct can be provided. R.V., as a teacher, was placed in a unique position of authority over the applicant, which made his actions susceptible of having an important impact on the applicant’s dignity, well-being and psychological development.", "87. It is true that the verbal abuse was not at a very high scale of intensity and did not degenerate into further, more systemic, harassment. However, R.V., as a teacher, was expected to understand that effects of verbal provocation and abuse might deeply affect students, particularly those who are sensitive (see paragraph 13 above). Moreover, as a teacher, he should have been aware that any form of violence, including verbal abuse, towards students, however mild, is not acceptable in an educational setting and that he was required to interact with students with due respect for their dignity and moral integrity.", "88. Accordingly, having regard to a position of trust, authority and influence as well as the social responsibility that teachers have, there is no room for tolerating any harassment by a teacher towards a student (see paragraph 48 above). The Court emphasises that frequency, severity of harm and intent to harm are not prerequisites for defining violence and abuse in an educational setting (see paragraph 44 above).", "89. In view of the principles set out above (see paragraphs 81-82 above), and the right of children to respect for their human dignity, physical and psychological integrity, the Court finds that the harassment by verbal abuse of the kind to which the applicant was subjected by R.V. amounts to an unacceptable interference with the right to respect for private life under Article 8, for which the State bore responsibility (see paragraphs 83-84 above).", "90. The above considerations would be sufficient for the Court to find a violation of Article 8 of the Convention. However, as already noted, given the nature of the applicant’s complaint, the Court finds it important to examine the manner in which the domestic authorities responded to the applicant’s allegations of harassment (see paragraph 84 above).", "(ii) The domestic authorities’ response to the applicant’s allegations of harassment", "91. Consistently with the above principles under Article 8 on the protection of children from any form of violence or abuse in educational institutions (see paragraphs 80-82 above), as well as the relevant international standards (see paragraphs 39-51 above), the Court finds that the domestic authorities must put in place appropriate legislative, administrative, social and educational measures to prohibit unequivocally any such conduct against children at all times and in all circumstances, and thus to ensure zero tolerance to any violence or abuse in educational institutions. This also relates to the necessity of ensuring accountability through appropriate criminal, civil, administrative and professional avenues. In this context, it is important to reiterate that the State enjoys a margin of appreciation in determining the manner in which to organise its system to ensure compliance with the Convention (see paragraph 79 above).", "92. The Court notes the absence of school policies and procedures that specifically address the problem of bulling behaviour by teachers. However, the relevant Croatian legal framework, through the criminal, civil, administrative and professional provisions, in principle provided for the protection of children in educational institutions from violence or abuse (see paragraphs 30-38 above). In the present case, the applicant’s allegations of harassment by R.V. were addressed through the criminal and administrative and professional avenues.", "93. While some of the aspects of the State Attorney’s reasoning when rejecting the applicant’s criminal complaint sit uncomfortably with the authorities’ duty to ensure zero tolerance to any violence or abuse in educational institutions (see paragraphs 25 and 91 above), the Court, acknowledging that an approach to protection of children from violence should be graded according to its gravity (see paragraph 47 above), does not consider in the circumstances of the present case that the recourse to criminal avenue was critical to fulfil the State’s obligations under Article 8. The Court will thus further examine the manner in which the applicant’s allegations were addressed within the available administrative and professional avenues.", "94. In this connection, it is noted that the domestic legislation envisages a system of mechanisms for supervision of the education process (see paragraphs 34-37 above). Those mechanisms can generally be viewed as measures of education inspection and measures of pedagogical supervision. Education inspection is carried out by the education inspectorate, which is one of the Ministry’s organisational units. Its aim is to control the manner in which education staff in schools comply with their duties and responsibilities towards students, including dealing with instances of ill ‑ treatment or other inappropriate behaviour towards students. An education inspector may order the adoption of relevant measures for the protection of students, as well as institute minor offence proceedings or, in the event of findings relating to criminal conduct, refer a case to the competent prosecuting authorities.", "95. In some instances, if professional pedagogical supervision is needed prior to the adoption of a decision by the education inspectorate, such supervision may be carried out. The authority responsible for professional pedagogical supervision is the Agency, which, in accordance with the Act on Professional Pedagogical Supervision, has the authority to make an assessment of the performance of teaching tasks in a school and indicate the measures which need to be taken for the elimination of identified irregularities and omissions (see paragraphs 36-37 above).", "96. In the case at issue, following the applicant’s initial complaint to the head teacher of harassment by R.V. (see paragraph 6 above), no concrete measure was taken by the school authorities until his father sent letters also to various State authorities asking for the applicant to be protected from further harassment at school (see paragraph 12 above). In the meantime, the applicant had been subjected to two additional instances of verbal abuse by R.V. (see paragraphs 7-8 above).", "97. Following the specific complaints made by the applicant’s father, the school authorities organised a reconciliation process between the applicant and R.V. In that process, the only measure taken with regard to R.V. involved a verbal reproach from the school psychologist (see paragraph 13 above). However, no formal decision or measure was adopted with regard to R.V.’s conduct, nor were the relevant administrative professional procedures before the Ministry set in motion (see paragraphs 93-94 above).", "98. In the Court’s view such reconciliation process was manifestly ineffective. The domestic authorities failed to recognise that what was at stake was not merely the settling of things between the applicant and R.V., but the necessity of confronting and addressing the problem posed by R.V.’s inacceptable conduct that affected not only the applicant but, according to the relevant information, some other students as well (see paragraph 24 above).", "99. It is further noted that the Ministry reacted only following a specific request by the applicant’s father. It sent the case to the Agency for its pedagogical educational supervision (see paragraph 15 above). However, there is no indication that the Ministry’s education inspectorate considered taking any other measures within its competence to address the specific complaints made by the applicant, such as questioning the applicant or adopting the relevant measures to protect students, providing specific training for the teacher and, if appropriate, instituting the relevant proceedings (see paragraph 35 above).", "100. In the context of its pedagogical supervision, the Agency focused on the manner of R.V.’s delivery of mathematics lectures, without conducting an investigation into the impugned events whereby he had verbally abused the applicant and his behaviour in class towards students (see paragraphs 17-19 above). The conclusions reached by the Agency are open to doubt in view of the allegations that some students had not honestly answered the Agency’s questionnaire due to a fear of reprisal (see paragraph 24 above). Moreover, in its conclusions the Agency suggested that the matter be resolved in a further discussion between the school authorities and the applicant’s father.", "101. Having regard to its findings above concerning the ineffectiveness of a mere reconciliation process (see paragraph 97 above), the Court fails to see how a discussion between the school authorities and the applicant’s father could be considered an adequate measure addressing the infringement of the applicant’s rights by the verbal abuse from R.V. In the Court’s view, a resolute action was needed to address the deficiencies in the methods of approach to the students applied by R.V. The school also failed to respond in any way to the applicant’s request to be removed to another class or to assign another math teacher to his class (see paragraph 14 above).", "102. The Court also notes that there is no indication that the Agency or the Ministry followed up on further developments in the applicant’s case or his situation at school. In this connection, it is difficult to accept that a single letter from the head teacher alleging that the applicant’s father had stated that the matter had been settled could be considered sufficient. Indeed, there is no indication that the content of that letter was authorised by the applicant’s father, and his version of events differs from that presented in the letter (see paragraphs 20 and 74-75 above). In any event, it should have been obvious to the State education administration that the type of behaviour impugned to R.V., and its effects on the applicant, required a more diligent investment of the knowledge and resources to understand its consequences and implications of failing to provide appropriate and expected care to the applicant at school.", "103. In sum, the State authorities failed to respond with requisite diligence to the applicant’s allegations of harassment at school. The Court therefore considers that their response fell short of the requirements of Article 8 of the Convention.", "(iii) Conclusion", "104. In light of the above considerations, the Court finds that there has been a violation of Article 8 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "105. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "106. The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage. He also claimed EUR 3,000 in respect of pecuniary damage related to his university fees.", "107. The Government contested the applicant’s claim.", "108. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. On the other hand, it awards the applicant EUR 7,500 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "109. The applicant also claimed EUR 650 for the costs and expenses incurred before the domestic authorities and the Court.", "110. The Government challenged the applicant’s claim.", "111. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed, plus any tax that may be chargeable to the applicant.", "Default interest", "112. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 2001 and lives in Bucharest. She was represented by Ms V. Ţucureanu, a lawyer practising in Bucharest.", "3. The Government were represented by their Agent, most recently Ms O.-F. Ezer, of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "I. THE TELEVISION REPORT", "5. On 22 October 2012, a private Romanian television channel with national coverage sent its reporters to the public school in Bucharest where the applicant was enrolled to cover a recent tragic event, namely the death of a pupil during a school trip on which the school pupils were accompanied by school staff.", "6. The applicant was not among the pupils who attended the above ‑ mentioned school trip.", "7. A reporter interviewed the applicant, aged eleven at the time, in front of her school, in the absence of her parents, close relatives or teachers, and without obtaining prior consent from any of them. The reporter questioned the applicant, among other pupils, in relation to the tragic event, asking her:", "- if she had spoken to her schoolmates who had attended the school trip ( Ai vorbit cu colegii tăi care au fost în excursie? ) during which the tragic event had occurred;", "- if she had any knowledge from her schoolmates about whether a schoolteacher had been in proximity to the victim ( Ştii cumva, era vreun profesor în jurul ei, ţi-au zis colegii ?) when the tragic event had occurred;", "- how she would describe the schoolteachers who had accompanied the pupils on the school trip ( Cum sunt profesorii cu care aţi fost în excursie ?);", "- if any similar events had taken place at the school before.", "8. The applicant told the reporter that she had heard from her schoolmates who had been present during the school trip that the victim had felt ill. The applicant also said that she could not remember anything more, but she believed that the girl had either felt ill and leaned on the train door, or she had been pushed. She also said that she believed that no schoolteacher had been near to the victim when the tragic event had occurred because if one had been present, the tragedy would not have happened. The applicant further said that “it would be better to care more for pupils and to make them secure” ( Mai bine ar fi trebuit să fie mai multă grijă sau pază pentru elevi ). When asked particularly about the schoolteachers, the applicant said that they “should have taken better care”. Lastly, concerning the question of whether other incidents of this kind had occurred in her school, the applicant told the reporter that no such incidents had occurred there, but they had done so in another school during a school trip with an accompanying schoolteacher, who she named.", "9. On the same day (22 October 2012), the television channel aired a report in which extracts from the interview recorded with the applicant were broadcast. The news, including the video and a transcript, was also posted on the television channel website under the title “Schoolmates of the girl who fell out of the train are shocked. The pupil was going to the toilet when the tragedy occurred”.", "10. The applicant alleges that, following that television report, she was recognised by her schoolmates and teachers and subsequently suffered from their showing a hostile attitude towards her. Her mother was summoned to the school to give a written declaration that she would prevent the applicant from making any other statements in front of journalists. The applicant’s mother also made apologies and gave explanations to all of the schoolteachers.", "II. THE LAWSUIT INTRODUCED BY THE APPLICANT", "11. On 14 February 2013, the applicant, represented by her mother, brought civil proceedings for compensation in respect of non-pecuniary damage against the private company X, which held the licence for the television channel that had broadcast the interview conducted with her on 22 October 2012 without prior parental consent. She relied on the provisions of the Civil Code concerning the right to one’s own image, that included the right to oppose the reproduction or use of one’s own image (see paragraph 25 below), and the provisions of Decision no. 220/2011 of the National Audiovisual Council ( Consiliul Naţional al Audiovizualului, hereafter the “NAC”) relating to the requirement of prior written parental consent for the participation of minor children, aged under fourteen, in television programmes (see paragraphs 28-31 below).", "First-instance judgment", "12. By a decision of 10 December 2013, the Ploiești District Court allowed the applicant’s civil action and ordered the private company X to pay the applicant 200,000 Romanian lei in respect of non-pecuniary damage. The District Court found that the defendant had acted in breach of the relevant provisions issued by the NAC in the field of audiovisual broadcasting because the applicant, a minor child, had been interviewed without parental consent. The District Court also concluded that, whether or not the applicant’s face had been blurred out when her interview had been broadcast on television, which was an issue that was in dispute between the parties, the applicant was easily recognisable on the video recording made available to the court by company X, and she had been recognised by her schoolmates and teachers, if only by her voice, which had not been distorted in any way in order to protect her image or her privacy. The District Court found that by breaching the relevant legal provisions on the protection of children’s privacy, the defendant had caused non-pecuniary damage to the applicant in so far as she had suffered severe emotional distress and anguish, having been, inter alia, summoned with her mother by the director of the school and asked not to give any further statements to the media on the subject of the above-mentioned tragic event (see paragraph 10 above).", "Appeal proceedings", "13. Company X appealed against that judgment on the grounds of its journalistic freedom to report on subjects of public interest, such as the tragic event that had happened at the school attended by the applicant.", "14. By a judgment of 23 September 2014, the Prahova County Court upheld the defendant’s appeal and dismissed the civil action brought by the applicant. While acknowledging that there had been no parental consent, the County Court found that having regard to the public interest in the subject of the report that had included the interview with the applicant, and to the journalistic freedom of the defendant, the latter was not liable for the non ‑ pecuniary damage caused to the applicant by the unlawful conduct of the schoolteachers, and in particular of the director of the school who had summoned the applicant and her mother to make a written statement that she would not give any further interviews to the media.", "The applicant’s appeal on points of law", "15. The applicant lodged an appeal on points of law against the judgment of the Prahova County Court, arguing that her right to respect for her dignity and her right to protect her image as a child had not been secured, despite Article 10 of the Convention allowing for limitations on freedom of expression for the protection of the rights of others, and in particular of minor children. The applicant relied on constitutional provisions on the protection of private life, including the right to her own image, and in particular the provisions of the Constitution stating that the right to information should be without prejudice to measures to protect young people and children, who should enjoy special legal protection (see paragraphs 22-24 below).", "The final judgment", "16. By a final judgment of 29 January 2015, the Ploiești Court of Appeal dismissed the applicant’s appeal on points of law.", "17. The Court of Appeal examined whether company X was liable for the non-pecuniary damage suffered by the applicant, because of the hostile attitude of her schoolmates and teachers, after interviewing her without her parents’ consent. The Court of Appeal reiterated the provisions of NAC Decision no. 220/2011 regarding the Code on the Regulation of Audiovisual Content (see paragraphs 28-31 below). As had been argued by the applicant, Article 7 of that Decision required the consent of parents or legal representatives to involve a minor child in audiovisual programmes, other than cultural and sporting events (see paragraph 30 below).", "18. However, the Court of Appeal decided that the County Court had correctly found that the interview concerned an issue of justified public concern, its scope being to show the deficiencies in the organisation of a school trip. The Court of Appeal emphasised that the imperatives of respecting the principle of the superior interest of the child and the right to protect his or her image and his or her family and private life, had to be interpreted and applied in direct correlation with the principle of freedom of expression. The Court of Appeal therefore declared that the decision of the County Court was correct and company X had not committed an unlawful act.", "19. The final judgment of the Court of Appeal reads as follows in its relevant parts:", "“The Court will not reiterate the theory of civil responsibility for tort, largely explained in the lower courts’ decisions, and also by the appellant in her reasons for the appeal on points of law. It will analyse the present case in the light of the applicable legal provisions to examine whether the conditions are met for the obligation to make good the tort.", "In this context, the Court reiterates the importance for the present case of the provisions of Decision no. 220/2011 regarding the Code on the Regulation of Audiovisual Content.", "It is true that, in accordance with Article 7 § 2 of that Decision, which was also relied on by the applicant as the legal basis for her action, the participation of a minor aged under 14 in audiovisual programmes other than cultural events and sports competitions is possible only with the consent of the latter, or with the parents’ consent or the consent of another legal representative, if applicable.", "Nevertheless, regardless of the fact that the interview – in which the applicant’s face was blurred out, an issue which was contested by the applicant, including in her reasons for the appeal on points of law, but which argument was never proved during any of the procedural phases – can be considered to be an “audiovisual programme” as defined by the Audiovisual Act (Law no. 504/2002), in order to attract the applicability of Article 7 § 2, this provision has to be interpreted in conjunction with the other provisions of the above-mentioned Decision.", "Having regard to this, the court considers that the County Court has lawfully taken into account the provisions of Article 31, and Article 32 §§ 2 and 3, of Decision no. 220/2011, which in essence strike a fair balance between the rights and interests of the persons [in question] and the finding of the truth regarding issues of justified public concern.", "Therefore, the County Court correctly considered that the interview in question revealed a problem of justified public concern, its purpose being to expose deficiencies in the organisation of a school trip.", "The appellant’s arguments based on Article 2, and Article 3 § 1, of the above-mentioned Decision do not allow for this appeal on points of law to be allowed either.", "As indicated above, the principle of the superior interest of the child and his [or her] right to the protection of his [or her] image and private life have to be interpreted in the light of the [principle of] freedom of expression enshrined in the Constitution and in conformity with the case-law of the European Court of Human Rights regarding the role of the media in a democratic society.", "For these reasons, the court cannot accept the appellant’s arguments based on Article 72, Article 73 and Article 74 of the Civil Code.", "Having regard to the above, the Court considers that the County Court correctly found that the conditions for the existence of an unlawful act have not been met in the present case.”", "20. As regards the tort alleged by the applicant, on the basis of the hostile attitude of the teachers, said to be a negative consequence of the interview, the Court of Appeal considered that this kind of behaviour by a professional body was not in accordance with their professional standards, and was without justification. The Court of Appeal also considered that it was hard to believe that, even if the parents had given their consent, the behaviour of the teachers would have been different, “their aim being to suppress the facts”.", "21. On the basis of the above-mentioned arguments, the Court of Appeal stated that the negative effects suffered by the applicant after the interview were not direct consequences of it, but were a consequence of the non ‑ professionalism of the teachers “who tried in fact to cover the facts”." ]

[ "RELEVANT LEGAL FRAMEWORK", "22. The relevant provisions of Article 30 of the Constitution on freedom of expression, and in particular paragraphs 6 and 8, are described in Marina v. Romania (no. 50469/14, § 27, 26 May 2020).", "23. The relevant provisions of Article 31 of the Constitution on the right to information, and in particular paragraph 3, are described in Roşiianu v. Romania (no. 27329/06, § 24, 24 June 2014).", "24. Article 49 § 1 of the Constitution (Protection of children and young people) reads as follows:", "“(1) Children and young people shall enjoy special protection and assistance in the pursuit of their rights.”", "25. Articles 72 and 73 of the Civil Code in force since 1 October 2011 regulate the right to dignity and the right to one’s own image. Article 74 of the Civil Code sets out a list of acts that may be considered as damaging to one’s private life ( pot fi considerate ca atingeri aduse vieţii private ), including broadcasting news or reports in the press or audiovisual media without the agreement of the person concerned.", "26. Article 1349 of the Civil Code, on liability in tort, is quoted in Association ACCEPT and Others v. Romania (no. 19237/16, § 40, 1 June 2021).", "27. The relevant provisions of the Audiovisual Act (Law no. 504/2002), which were enacted on 11 July 2002 and entered into force on 22 July 2002 upon publication in the Official Journal, Part I no. 534 of 22 July 2002, are partially described in Frăsilă and Ciocîrlan v. Romania (no. 25329/03, § 35, 10 May 2012).", "28. The relevant provisions of NAC Decision no. 220/2011 of 24 February 2011 on the Code on the Regulation of Audiovisual Content, published in the Official Journal no. 174 of 11 March 2011, are partially described in Marina (cited above, § 30).", "29. In addition, the relevant provisions of Title II “Protection of minors” of NAC Decision no. 220/2011 on the protection of minor children, as in force at the relevant time, read as follows:", "Chapter 1 - Compliance with minors’ rights in respect of audiovisual programmes", "Article 2", "“Audiovisual media service providers shall respect the principle of the superior interest of the minor.”", "Article 3", "“(1) The minor has the right to the protection of his or her public image, [and] his or her intimate, private and family life.", "(2) The terms under which the minor can participate in an audiovisual programme shall take into account the age-specific sensibility, vulnerability in general and the minor’s personality, in particular.", "(3) The right of the minor to his or her private life and private image prevails over the need for information, especially in the case of a minor in a difficult position.", "...”", "Article 5", "“(1) Broadcasts of programmes featuring minors aged under 14 which re-enact offences, abuses or dramatic events, shall be prohibited.", "(2) Audiovisual media service providers shall not broadcast interviews, [or] statements given by a minor under 14 in connection with dramatic events in the community or family that he or she has witnessed. ”", "Article 7", "“(1) The minor, the parents or the legal representative shall be informed about the rights of the minor before he or she is filmed or recorded.", "(2) Participation of a minor under 14 old in audiovisual programmes, other than cultural events and sports competitions, is possible only with the consent of the latter, or with the parents’ consent or the consent of another legal representative, if applicable.”", "30. NAC Decision no. 220/2011 was subsequently amended by NAC Decision no. 141/2013, which introduced the following new provisions:", "Article 7 1", "“(1) News and other information regarding violence in educational institutions shall be broadcast only where accompanied by the school management’s point of view and with the approval of the minor’s parents, or the minor’s legal representative; situations in which the broadcaster acts in the superior interest of the minor, without affecting the minor’s public image or the minor’s right to intimate, private and family life shall be exempted.", "(2) Images in which minors are involved in scenes of violence or in implicit or explicit sexual scenes of any kind, shall be broadcast only on condition that:", "a) they serve a justified public interest;", "b) the broadcaster acts in the superior interest of the minor, with the consent of the parents or the legal representatives;", "c) the broadcaster shall not broadcast any indication that might lead to the identification of the minors involved.", "(3) The Internet page where such images are available, or websites that refer to such an Internet page, shall not be referred to.”", "31. The relevant provisions of Title III “Protection of human dignity and of the right to one’s own image” of NAC Decision no. 220/2011 read as follows:", "Article 30", "“Audiovisual media service providers are required to respect fundamental human rights and freedoms, [namely] private life, the right to honour and reputation, and a person’s right to their own image.”", "Article 31", "“For the purpose of the present Code, any problems, facts or events which influence a community or society, are considered of justified public interest, in particular if they concern:", "a) the prevention of or the proof for committing a criminal offence;", "b) the protection of health or public safety;", "c) reports of false allegations or cases of incompetence that may be relevant to the public.”", "Article 32", "“(1) No right conferred by law may be exercised in an excessive and unreasonable manner, contrary to good faith in order to harm or defraud another person, or to take advantage of people’s ignorance or good faith.", "(2) The interest of the public should not be satisfied at any cost; the mere reference to the right to information cannot justify the violation of private life.", "(3) The right to one’s own image should not hinder finding the truth in issues of justified public concern.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "32. The applicant complained that the national authorities had failed to protect her right to respect for her private life and in particular the right to respect for her image as provided in Article 8 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "33. The Government argued that the application was inadmissible for failure to exhaust domestic remedies because the applicant should have instituted civil proceedings to seek to establish the liability of the schoolteachers who had shown hostility towards her following the broadcast by the private television channel of her interview.", "34. The applicant’s representative submitted observations outside the relevant time-limit, which were consequently not included in the case file for the consideration of the Court.", "35. The Court notes that the applicant instituted civil proceedings for compensation in respect of non-pecuniary damage against the private company X, which held the licence for the television channel that had broadcast the interview conducted with her on 22 October 2012 without prior parental consent (see paragraphs 11-21 above). The Court therefore considers that the applicant has exhausted the available domestic remedies which were apt to offer her redress in relation to her complaint of the violation of her right to privacy by the media exposure (see, mutatis mutandis, Kahn v. Germany, no. 16313/10, § 51, 17 March 2016).", "36. In the circumstances of the present case there was, therefore, no reason for the applicant to institute further sets of proceedings in addition to the civil proceedings for compensation in respect of non-pecuniary damage against the private company which held the licence for the television channel.", "37. Accordingly, the applicant has exhausted domestic remedies and the Government’s objection must be dismissed.", "38. The Court further reiterates that the concept of “private life” extends to aspects relating to personal identity, such as a person’s image. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. Whilst in most cases it involves the possibility for an individual to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019 and, for a case which also concerns the photograph of a child taken without parental consent, see Dupate v. Latvia, no. 18068/11, § 40, 19 November 2020).", "39. Accordingly, the Court considers that the broadcast of the interview in the absence of any parental consent encroached on the applicant’s private life, and Article 8 is therefore applicable in the present case.", "40. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsArguments by the parties", "Arguments by the parties", "Arguments by the parties", "(a) The applicant", "41. The applicant argued that the domestic courts had failed to protect her private life and her right to her image following her exposure on a private television channel, and she provided the Court with a colour printed version of the television channel website showing her face, not covered and not blurred out.", "(b) The Government", "42. The Government points to the fact that the applicant, then a minor, had answered questions asked by a journalist concerning the death of a schoolmate during a school trip. In the present case, therefore, the right to respect for private life had to be seen in the larger context of the freedom of public expression regarding facts of public interest. The domestic court had stated in the final judgment in the case that the applicant’s face had been blurred out by the television channel. It did not therefore appear from the facts of the case that data of a personal character had been exposed. Moreover, the questions that the reporter had asked the applicant concerned the cause of her schoolmate’s death and the guilt of the teachers, and were not related to her private life. Furthermore, the domestic court had emphasised that the subject of the news report, namely the death of a minor during a school trip, was an issue of public interest, so finding out the truth in this respect was justified.", "43. Referring to Putistin v. Ukraine (no. 16882/03, 21 November 2013), the Government contended, as regards the protection of an individual’s reputation, that there must also be a sufficient link between the applicant and the alleged attack on reputation. The repercussions on private life should be directly and causally linked to the interview with the applicant. However, the domestic courts had indicated that the negative consequences for the applicant had not been a direct result of the interview, but had been caused by the behaviour of the teachers, who had acted unlawfully and not in accordance with professional standards. For the domestic courts, it was plausible that the consequences would have been similar even if the parents’ consent for the interview had been given.", "44. The Government further argued that the final decision of the domestic court not to find against company X fulfilled the conditions of necessity in a democratic society and proportionality in relation to the legitimate aim. Consequently, that decision had not breached the applicant’s rights under Article 8.", "The Court’s assessment", "(a) General principles", "45. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. In addition to this negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves (see, recently, Marina v. Romania, no. 50469/14, § 61, 26 May 2020, and the case ‑ law cited therein).", "46. Moreover, individuals who lack legal capacity, such as minor children, are particularly vulnerable; therefore Article 8, as well as other provisions of the Convention, impose on the State the positive obligation to take into account the particular vulnerability of young persons (see, mutatis mutandis, M.G.C. v. Romania, no. 61495/11, § 73, 15 March 2016).", "47. The Court starts from the premise that the present case requires an examination of the fair balance that has to be struck between the applicant’s right to the protection of her private life under Article 8 of the Convention and the private broadcasting company and journalists’ right to impart information as guaranteed by Article 10 according to the principles set out in its case-law. In Dupate (cited above, § 46 ), the Court referred to its case-law in which the criteria for balancing the protection of private life against freedom of expression were set out. These criteria include: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which images were taken. Where the balancing exercise between the rights protected by Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 87-88, 7 February 2012, with further references).", "48. The task of audiovisual media service providers of imparting information necessarily includes “duties and responsibilities”, as well as limits which the media must impose on itself spontaneously. Wherever information bringing into play the image of a person is at stake, journalists are required to take into account, in so far as possible, the impact of the information, pictures or video recordings to be published prior to their dissemination (see, mutatis mutandis, Dupate, cited above, § 47).", "(b) Application of those principles to the present case", "49. The issue in the present case is whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the opposing party to freedom of expression (see paragraph 47 above). In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions that the domestic courts have taken pursuant to their power of appreciation are in conformity with the criteria laid down in the Court’s case-law (see, mutatis mutandis, Dupate, cited above, § 49). Accordingly, the Court will analyse in turn the elements identified as relevant in this regard in its case-law and the domestic courts’ assessment thereof.", "(i) Subject of the news report and its contribution to a debate of public interest", "50. The Court reiterates that in the balancing of interests under Articles 8 and 10 of the Convention, the contribution to a debate of public interest made by the broadcasted news report is an essential criterion (see mutatis mutandis Axel Springer AG, cited above, § 90, with further references).", "51. The Court observes that in taking the decision to dismiss the applicant’s claims, the Ploiești Court of Appeal, unlike the District Court, held that company X had not committed an unlawful act when broadcasting the interview with the applicant without parental consent, because the news report that included the interview concerned a subject of public concern, namely deficiencies by the school attended by the applicant in organising a school trip (see paragraphs 18 and 19 above).", "(ii) The notoriety of the applicant and her prior conduct", "52. The Court notes that the applicant, an eleven-year-old pupil at the time of the interview, was not a public or newsworthy figure. On the contrary, she was a minor, and the exercise of the right to the protection of her image was overseen by her parents. Accordingly, the prior consent of the applicant’s parents to the broadcast of the interview was an important element in the assessment of the case (see Reklos and Davourlis v. Greece, no. 1234/05, §§ 41-43, 15 January 2009).", "(iii) The circumstances in which the images were taken and the content, form and consequences of broadcasting the news report including the interview", "53. As regards the conditions under which the interview in question was conducted, the Court observes that the applicant’s parents or legal representative did not at any time give their consent to the broadcast of the interview. A reporter interviewed the applicant, aged eleven at the time, in front of her school, in the absence of her parents, close relatives or teachers, and without obtaining any prior consent from any of them to conduct that interview (see paragraph 7 above).", "54. Regarding the lack of prior parental consent to the interview, the Court of Appeal considered that it was hard to believe that even if the parents had given their consent, the adverse behaviour of the teachers towards the applicant would have been different (see paragraph 20 above). However, having regard to the content of the news report on a tragic event involving a child, the Court of Appeal failed to give due consideration to the obligations imposed by Article 8 to protect the applicant’s private life, given also her vulnerability as a child. In particular, the Court of Appeal failed to assess whether the applicant’s image had been effectively protected. In this respect, the prior parental consent had to be considered as a safeguard for the protection of the applicant’s image, rather than as a mere formal requirement. Had the applicant’s mother been made aware of the interview she would have had the possibility to oppose it.", "55. Moreover, the Court notes that the Ploiești District Court concluded in its judgment of 10 December 2013 that, regardless of whether the applicant’s face had been blurred out or not when the interview with her was broadcast on television, an issue that was in dispute between the parties, the applicant was easily recognisable on the video recording made available to the court by the defendant private broadcasting company, and she was effectively recognised by her schoolmates and teachers, if only by her voice, which had not been distorted in any way in order to protect her image and privacy (see paragraph 12 above). None of the superior courts that subsequently dealt with the case following the appeal brought by company X against the judgment of 10 December 2013 thoroughly examined the steps that the defendant undertook to protect the identity of the applicant.", "56. The Court emphasises that even where a news report makes a contribution to the public debate, the disclosure of private information, such as the identity of a minor who witnessed a dramatic event, must not exceed the latitude accorded to editorial assessment, and has to be justified (see, mutatis mutandis, MGN Limited v. the United Kingdom, no. 39401/04, §§ 147-51, 18 January 2011, and Alkaya v. Turkey, no. 42811/06, §§ 32-36, 9 October 2012). Particular regard has to be had to situations of vulnerability (see Dupate, cited above, § 61). These considerations are all the more compelling in the present case, where the Court expressed doubts as to the contribution to a debate of public interest of the exposure of the opinions of the applicant, a child who did not witness the event in question (see paragraph 6 above).", "57. The Court also notes that although the domestic regulatory framework in respect of audiovisual media service providers, and in particular Article 3 § 3 of NAC Decision no. 220/2011, provides that “the right of the minor to his or her private life and private image prevails over the need for information, especially in the case of a minor in a difficult position” (see paragraph 29 above), the higher domestic courts failed to duly examine whether that legal requirement had been complied with in the case at hand.", "58. Moreover, the Court notes that after the date of the facts in the present case, the domestic regulatory framework evolved to provide for new special requirements for reporting on “violence in educational institutions”, in particular the requirement to avoid disclosure of any indication that might lead to the identification of a minor, provided for in Article 7 1 of NAC Decision no. 220/2011, amending NAC Decision no. 141/2013 (see paragraph 30 above). It follows that reporting on dramatic events surrounding or involving minors requires audiovisual media service providers to perform their duty of informing the public while protecting the identity of minors involved.", "59. The Court considers that the above-mentioned requirements are of the utmost importance in cases of media reporting concerning minor children. The disclosure of information concerning their identity could jeopardise the child’s dignity and well-being even more severely than in the case of adult persons, given their greater vulnerability, which attracts special legal safeguards.", "60. Finally, regarding the consequences of broadcasting the news report including the interview with the applicant without the appropriate safeguards to protect her identity, the Court observes that the higher domestic courts did not depart from the findings of the Ploiești District Court, which noted that the applicant suffered from severe distress and anguish following the broadcast of her interview (see in paragraphs 12 and 20 above). It appears, thus, that the broadcast had serious repercussions on the applicant’s well ‑ being and private life and that her allegations on this point do not appear ill-founded or frivolous to the Court (compare Aleksey Ovchinnikov v. Russia, no. 24061/04, § 51 in fine, 16 December 2010).", "(iv) Conclusion", "61. The Court considers that the higher domestic courts only superficially engaged in the balancing exercise between the applicant’s right to private life and company X’s freedom of expression, and this exercise was not carried out in conformity with the criteria laid down in the Court’s case-law and mentioned in paragraph 47 above.", "62. In the Court’s view, the above considerations – especially on the young age and the lack of notoriety of the applicant; on the little contribution that the broadcast of her interview was likely to bring to a debate of public interest and on the particular interest of a minor in the effective protection of her private life – are sufficiently strong reasons to substitute its view for that of the domestic courts (see the case-law quoted in paragraph 47 in fine above). The Court finds that, given their duty to duly take into account the rights of minor children (see paragraph 47 above), the latter failed to strike a fair balance between the relevant interests, thus failing to comply with their positive obligations to protect the applicant’s right to respect for her private life.", "63. There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "64. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "65. The applicant did not submit a claim for just satisfaction within the time-limit set by the Court. As the present case does not disclose exceptional circumstances which call for a just-satisfaction award in respect of non ‑ pecuniary damage (see, a contrario, Nagmetov v. Russia [GC], no. 35589/08, §§ 57-92, 30 March 2017), the Court considers that there is no call to award the applicant any sum on that account." ]

[ "THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1998 and lives in Apsheronsk.", "A. The applicant ’ s father ’ s arrest", "6. On 31 May 2008 the applicant ’ s father (B), a police officer employed by the Apsheronsk police department at the time, was arrested by the Krasnodar regional branch of the Federal Service for Drug Control (“the FSKN”), following a test purchase of drugs. The undercover operation had been organised by an FSKN unit in Tuapse and the Belorechensk unit of the Krasnodar regional department of the Federal Security Service. B ’ s car was searched and a bag containing money was seized. Criminal proceedings were brought against him on the same day by an FSKN investigator, A.F., on the basis of the record of the test purchase of drugs, which had been prepared by FSKN officers. B was charged with selling cannabis to E.N., an undercover officer of the FSKN unit in Tuapse, who had acted as a buyer. The prosecution alleged that B had handed the drugs over to E.N. on 30 May 2008 and had received money from him on 31 May 2008, immediately before his arrest.", "7. The arrest was carried out in the presence of the applicant, who was nine years old at the time. On that day, B had taken her to school for an event marking the end of the school year. At about 8.45 a.m. the applicant, accompanied by B, left the school and was getting into their car when B was approached by E.N., with whom he had previously worked at the Apsheronsk police department, and they talked. The parties ’ accounts of the events which followed differ.", "1. The applicant ’ s account of the events of 31 May 2008", "8. According to the applicant, E.N. asked B to look after his bag while he went to buy cigarettes at a nearby kiosk. B took the bag and E.N. left. Several men then ran up to B. One of them knocked him to the ground and started beating him. The applicant jumped out of the car and shouted that they should stop beating her father. One of the men shouted at her: “Shut your mouth and get into the car!” The applicant, scared, obeyed. For some time she sat in the car watching her father being beaten up and arrested. She felt unwell and needed more air. She tried to get out of the car but the men held the doors of the car from the outside so that she could not get out. At some point, when they were no longer standing near the car, she opened the car door and ran home. When approaching her house she saw men she did not recognise coming out. That also scared her and she ran towards her grandmother ’ s house nearby. While running she started to feel giddy and thought that she would fall over. Her uncle, V.K., saw her in the street and took her to his home. She was in a state of shock and could not explain well what had happened.", "9. The applicant submitted her father ’ s written statement. She also submitted her own statement, her mother ’ s and other witnesses ’ statements recorded by a lawyer, R.V., from the interregional NGO “Mothers in defence of the rights of detainees, defendants and convicts” ( межрегиональная общественная организация «Матери в защиту прав задержанных, подследственных и осужденных» ) and signed by the interviewees.", "10. According to B ’ s statement of 20 July 2008, at 7.45 a.m. on 31 May 2008 he took his daughter A (the applicant) to school no. 1 for a school event. Shortly after 8 a.m. he received a call from E.N. asking where he was. He replied that he was at school with his child. When he and A came out of the school, E.N. was waiting for him. A got into their car, and he talked to E.N. Then E.N. asked B to look after his bag while he went to buy cigarettes at a nearby kiosk. E.N. left and B went back to his daughter, who was waiting for him to go home. As E.N. had not come back, B put the bag in the boot of the car and was about to get into the car himself. At that moment a car stopped nearby and several men wearing tracksuits jumped out. They knocked him to the ground and started kicking him. He tried to protect his face by covering it with his hands. Then they handcuffed him and lifted him from the ground. During the beating they tore his shirt. His daughter saw him being beaten. V.E., a deputy head of the FSKN unit in Tuapse, told him that he had been arrested for selling drugs. B asked V.E. to let A go home or back to her school teacher. V.E. refused. A herself tried to get out of the car but two officers, standing at either side of the car, blocked the car doors. When the officers opened the boot of his car, he saw that A was very frightened. He pleaded with V.E. and the others to let her go but they refused. He tried to calm her down and asked her to be patient. All of this lasted for about an hour. When the officers were busy and not looking, A got out of the car and ran away in the direction of her home.", "11. According to the applicant ’ s statement of 15 August 2008 made in the presence of her mother and describing the events of 31 May 2008, a man ran up to B and pushed him in the back. B fell and the man started kicking him. B asked the men to let her go home or to call her mother so that she could come and fetch her, but the men would not listen. The applicant provided some details concerning the appearance of the men who had arrested B.", "12. According to the statement given by the applicant ’ s mother on 2 August 2008, when leaving home for school at about 7.45 a.m. on 31 May 2008, her daughter A (the applicant) and her husband (B) had had no injuries and had not complained of any health problems. Later that morning she found her daughter at their relatives ’ home. She was in a state of shock, unable to speak and having breathing difficulties. She was shaking, and her hands and face were trembling. The FSKN officers brought her husband home in a car that morning, in order to carry out a search. He was handcuffed. His jeans were dirty and dusty. His shirt was open, torn in some places and the buttons had been ripped off. His face was pale.", "13. According to a statement of 2 August 2008 given by witness R.G., an electrician of the limited liability company Energoservis, at about 8.30 a.m. on 31 May 2008 he was checking the traffic lights at the pedestrian crossing near school no. 1. After replacing a light bulb, he climbed down from the traffic lights and saw police officer B approaching a car from the driver ’ s door side. A girl was sitting in the back seat of the car. At that moment an FSKN officer, S.K., wearing a blue tracksuit, approached B and hit him from behind so that he fell face down, and started kicking him. B was trying to protect himself from the blows by covering his head with his hands. S.K. did not stop until someone shouted at him to do so. The girl was also shouting. An FSKN chief officer and another man were present when S.K. was beating B. Immediately thereafter R.G. left in his company car to check other traffic lights. R.G. knew the names of the police officers because he had worked on the electrical system at the local police station and the FSKN premises.", "14. According to a statement of 15 August 2008 given by V.K., a police officer of the Apsheronsk police department and B ’ s cousin, on his way home after work at about 10.30 a.m. on 31 May 2008 he met B ’ s daughter, A, who was running somewhere. She saw him and stopped and told him that someone was beating her father. She was very frightened, stuttering and gasping for air. V.K. took her to his home and called her mother.", "15. According to a statement of 15 August 2008 given by G.A., the applicant ’ s violin teacher, before the events of 31 May 2008 the applicant had been a sociable, cheerful, hardworking, able and promising student. After those events she became slow and reserved, as opposed to the quick learner she had been before. She became tired easily and wanted to abandon her violin studies.", "16. The applicant ’ s mother submitted photographs of the shirt B had been wearing during his arrest. Except for three buttons on the lower part of the shirt, the other buttons on the shirt were missing. The shirt was torn in the places where the buttons had been.", "2. The Government ’ s account of the events of 31 May 2008", "17. According to the Government, no physical force was used against B during his arrest and the applicant was not treated in the way alleged by her. They referred to records from the detention facility in which B had been detained after his arrest (see paragraph 27 below), and to “explanations” submitted by FSKN officers S.K., V.D., A.O., V.E., E.N. and S.S. (see paragraphs 24, 36 and 38 below), Federal Security Service officer S.P. (see paragraph 39 below), Apsheronsk police officers K.A. and M.I. (see paragraph 37 below), attesting witnesses A.Sh. and P.M. (see paragraphs 31 and 35 below), and FSKN officer A.Z., who had carried out the FSKN internal investigation (see paragraph 40 below).", "B. State of the applicant ’ s health after the events of 31 May 2008", "18. The applicant described her state of health after the incident of 31 May 2008 as follows. She started screaming at night, wetting herself and suffering panic attacks when left alone. She stopped communicating with other children, became reserved, lost her vivaciousness, had difficulties speaking and developed a tremor affecting her face and limbs. She lost her interest in music, despite having previously been a successful violin student.", "19. On 3 June 2008 the applicant was examined by a neurologist and diagnosed with a neurological disorder and neurosis-like enuresis. On 6 June 2008 she was examined by a psychologist, to whom she complained that her stress had caused screaming at night, fears and unsociability. She was diagnosed with post ‑ traumatic stress disorder, high levels of anxiety and fixation on the stressful situation. The diagnosis of post-traumatic stress disorder was confirmed on 25 June 2008 by children ’ s psychiatrists and psychologists at Specialised Clinical Psychiatric Hospital no. 1 in Krasnodar and the Krasnodar regional children ’ s hospital. On the same day a neurologist from the regional children ’ s hospital also diagnosed her with neurogenic hyper ‑ reflective urinary bladder. A cardiologist from the same hospital confirmed her previously known diagnosis of mitral valve prolapse. She received out-patient treatment and was supervised at the Apsheronsk central district hospital. She was again seen by doctors for her post ‑ traumatic stress disorder in July and August 2008.", "20. It follows from a record of the applicant ’ s statements to a lawyer of 12 October 2017 that her state of health improved after her father ’ s release. Her enuresis almost ceased but her nightmares continued for about two more years. She confirmed that she was currently not suffering any health problems.", "21. According to a preliminary conclusion of psychologist D.S. from “Independent Expert Examination Bureau Versia ” based in Moscow and St Petersburg, who interviewed the applicant on 15 February 2018 and examined her medical records, there could have been a cause-and-effect relationship between the events of 31 May 2008 and the medical condition she developed immediately thereafter, which lasted for more than two years. In order to substantiate such a conclusion, complex psychological and psychiatric examinations needed to be carried out on the applicant with the involvement of her parents. A psychiatrist would be competent to carry out a clinical assessment of the consequences of the impact which the events of 31 May 2008 had had on her health. D.S. provided details of the cost and duration of the proposed examination.", "22. An “experimental psychological examination” was carried out on the applicant by psychologist D.T. from the non-commercial organisation “Sotsialnaya Sfera” based in Nizhniy Novgorod. According to D.T. ’ s report of 7 March 2018, the results of the examination could be interpreted as indicating the presence of elements of post-traumatic stress disorder and a number of other conditions (high level of anxiety and low level of adaptability, “sub-depression or masked depression” and experiencing phobic disorders) as a consequence of the events of 31 May 2008 and the ensuing inquiry.", "C. Inquiry by the investigating authority", "23. On 10 July 2008 the applicant ’ s mother lodged an application with the Apsheronsk district prosecutor ’ s office, complaining that the FSKN officers had beaten up her husband, B, in the presence of her daughter, A, which had caused harm to A ’ s health. B had not resisted arrest. His clothes had been torn during the beatings. A had been kept in a car and had thus been deprived of her liberty. The application was transferred to the Belorechenskiy inter ‑ district unit of the investigative committee at the Krasnodar regional prosecutor ’ s office (the “investigative committee”), which carried out a pre ‑ investigation inquiry.", "24. On 10 July 2008 FSKN officers S.K., V.D. and A.O., who had apprehended B, and deputy head of the FSKN unit in Tuapse V.E., who had been present at the time, submitted identical written “explanations” to the head of the investigative committee, claiming no physical force had been applied to B during his arrest. They stated that they had apprehended B near his car in which his daughter, A, had been sitting, and that after the arrest B himself had forced her to get out of the car and sent her home.", "25. Relying on the FSKN officers ’ explanations, on 14 July 2008 investigator M.V. refused to institute criminal proceedings against them on the grounds that their actions lacked the elements of a crime under Article 286 of the Criminal Code (abuse of power). The investigator noted that given A ’ s young age and the fact that she suffered from heart disease, her father ’ s arrest as such could have provoked her post-traumatic stress disorder.", "26. The investigator ’ s decision was annulled as unlawful and unfounded, and an additional pre-investigation inquiry was ordered.", "27. The investigator obtained records from the temporary detention facility at the Tuapse police station, in which B had been detained after his arrest. According to those records, B had not made any complaints, had not asked for medical aid and no injuries on him had been recorded.", "28. The investigator interviewed the applicant and her mother, V.K. and his wife, G.A. and A.Sh.", "29. V.K., a police officer of the Apsheronsk police department, stated that at about 10.30 a.m. on 31 May 2008 he was going home after his shift. He already knew about his cousin B ’ s arrest by FSKN officers. He saw B ’ s daughter, A, running down the street. She was frightened. She told him that some people were beating her father. According to V.K. ’ s wife, an investigator at the Apsheronsk police department, she had been at home at about 10 a.m. on 31 May 2008. At some point thereafter her husband came home with A, who was frightened and in a state of shock.", "30. According to G.A., the applicant ’ s violin teacher, after the events of 31 May 2008 the applicant, previously a successful student and winner of a regional competition, was unable to play the violin as before.", "31. According to A.Sh. (interviewed on 19 August 2008), on 30 May 2008 he was approached by two individuals who asked him to participate in a test purchase operation as an attesting witness. He agreed. The operation lasted two days. On 31 May 2008 he witnessed B ’ s arrest near school no. 1. An FSKN officer, E.N., handed over a bag containing money to B, after which B was approached by several persons in civilian clothing who showed him their documents and took him to their car. There was another car nearby in which a girl was sitting. B told the girl quickly to go home. The FSKN officers did not shout at the girl, did not close the doors of the car in which she was sitting, or block her way out. About fifteen minutes later they started searching the car and the girl came out. She was frightened but was not hysterical and did not cry. She walked away and then ran. The officers did not use any physical force against B.", "32. On 21 August 2008 investigator M.V. again refused to institute criminal proceedings against the FSKN officers on the grounds that their actions lacked the elements of a crime under Article 286 of the Criminal Code. He stated that it had not been established that physical force had been used against B or that A had been forcibly kept in a car. The doors of the car had been open and she had been able to leave the car on her own afterwards. No physical or psychological violence or threats had been used against her. The FSKN officers ’ presence near the car had not obstructed her freedom of movement. After she had run away, she had not been pursued and there had been no attempts to return her in order to hold her in the car and restrict her liberty. Having taken note of medical certificates concerning A ’ s state of health after the events of 31 May 2008, the investigator stated that the FSKN officers ’ actions aimed at arresting A ’ s father, the uncertainty of what exactly had been going on and how to act in such a situation, the mistaken assessment of the police officers ’ behaviour as deliberate restriction of her freedom of movement, together with A ’ s well-developed imagination and sensitivity, had served as a powerful source of stress to her, which could have caused her subsequent health disorder.", "33. The investigator ’ s decision was annulled again and an additional round of the pre-investigation inquiry was ordered.", "34. Investigator M.V. obtained the transcript of B ’ s examination by an investigator of the investigative committee in the presence of a lawyer on 24 July 2008. According to B ’ s statement, S.K. and other FSKN officers had knocked him to the ground, delivered several blows to his torso and handcuffed him. While apprehending him they had torn his shirt. B had not resisted arrest. The blows he had received had not left bruises on his body.", "35. On 22 August 2008 investigator M.V. interviewed P.M., another attesting witness of the test purchase of drugs carried out in relation to B. According to P.M. ’ s explanations, which were essentially similar to those of A.Sh. (see paragraph 31 above), the arresting officers were in civilian clothing. B behaved calmly, his shirt was unbuttoned but not damaged, and there were no injuries on him. B talked to [A] firmly. The FSKN officers asked him why he was ordering her to go home, stating that they could take her along with him when going to his house to carry out a search. B disagreed.", "36. According to an operational officer of the FSKN unit in Tuapse, E.N., who acted as a buyer in the drugs test-purchase operation (interviewed by investigator M.V. on 24 August 2008), on 30 May 2008 B gave him drugs and they agreed that he would pay B the following day. The transfer was watched by the attesting witnesses from a car. At about 8.30 a.m. on 31 May 2008 near school no. 1, after a telephone conversation between them, E.N. handed over a bag with money to B. B ’ s daughter was sitting in a car nearby. After the transfer of the money, E.N. and B were arrested by approximately eight persons in civilian clothing who had jumped out of two cars. They introduced themselves and produced their documents. They were from the FSKN and the Federal Security Service. No physical force, strong ‑ arm tactics or holds were used against B during his arrest. B behaved calmly and did not resist arrest. No physical or psychological violence or threats were used against B ’ s daughter. Nobody blocked the doors of the car in which she was sitting.", "37. According to Apsheronsk police officers K.A. (interviewed on 22 August 2008) and M.I. (interviewed on 1 September 2008), on 31 May 2008 they were passing by school no. 1 in a car and saw their colleague, B. They stopped, got out of the car and walked towards him. Their way was blocked by several persons in civilian clothing who explained that they could not go any further since there was an operation underway. B was about ten metres away. His shirt was open and apparently slightly torn. The buttons on the shirt were missing. They did not see any bodily injuries on B. The situation was calm, and they left.", "38. According to FSKN officer S.S. (interviewed on 24 August 2008), on 31 May 2008 he arrived at the place of the arrest after B ’ s apprehension and went to B ’ s house together with his colleagues. He saw the applicant approaching her house and then going away.", "39. According to S.P., an operational officer of the Belorechensk unit of the Krasnodar regional department of the Federal Security Service (interviewed by investigator R.Z. from the investigative committee on 29 August 2008), who had been present during B ’ s arrest, physical force was used against B because he had been trying to flee the scene of the crime. The force used was necessary and not excessive, that is it did not involve B being beaten up. B ’ s daughter was sitting in B ’ s car. B was invited to inform his wife that she should come and take the girl away. However, B insisted that the girl should run home. The girl listened to her father and ran home. No one held her or chased her.", "40. On 29 August 2008 investigator M.V. also interviewed A.Z., a senior operational officer of the internal security unit of the FSKN ’ s Krasnodar regional branch, who had carried out (from 30 July 2008 to 7 August 2008) an internal investigation following the complaint lodged by the applicant ’ s mother with the FSKN. A.Z. related his findings as follows. According to explanations received from FSKN officers S.K., V.D., A.O. and V.E., as well as individuals P.M., I. and G., B was not beaten up during his arrest, and A was not held forcibly in a car. B himself ordered her to get out of the car and she ran away. No one chased her or used measures of psychological influence against her. R.G., an electrician working for Energoservis, was checking traffic lights at the intersection near the place of the arrest. He confirmed having seen FSKN officer S.K. apprehending B and delivering several blows to his body. However, given that the director of Energoservis had not “officially” confirmed whether R.G. had been working that day, and that R.G. had been registered since 25 February 2007 as a drug user and had been repeatedly arrested by the FSKN for administrative offences involving drugs consumption, he could have given false statements aimed at discrediting the FSKN officers. According to a “specialist” consulted in relation to A ’ s medical documents, A was highly sensitive, emotionally unstable, selective in her contacts, and had a high level of anxiety. Taking into account her pre-existing neurological pathology, even a minor stressful situation, especially involving her father, would have sufficed to cause her psychological trauma. Her father might not necessarily have been beaten up in her presence. The fact that she had been in a car for a long time was irrelevant for the stress she had suffered. Therefore, the internal investigation did not establish the FSKN officers ’ guilt in relation to the temporary damage to A ’ s health which had occurred during B ’ s arrest.", "41. On 1 September 2008, relying on the above material and using the same reasoning as in his previous decision, investigator M.V. refused to institute criminal proceedings against FSKN officers S.K., V.D., A.O., V.E., E.N. and S.S. He added that in the absence of intent to harm A ’ s health, the FSKN officers ’ lawful and justified actions in arresting B lacked the elements of a crime.", "D. Judicial review of the decision not to investigate", "42. In proceedings conducted under Article 125 of the Code of Criminal Procedure on 12 September 2008, the Apsheronsk District Court dismissed an appeal lodged by the applicant ’ s mother against the investigator ’ s decision of 1 September 2008, holding that the decision had been lawful and well ‑ founded because it was supported by a comprehensive and objective pre ‑ investigation inquiry and complied with the Code of Criminal Procedure. On 22 October 2008 the Krasnodar Regional Court upheld the District Court ’ s decision on the applicant ’ s appeal. It stated that in certain circumstances force could be used lawfully by law-enforcement officers. Moreover, no injuries had been recorded on B. The conclusion of the FSKN internal investigation about the lack of guilt on the part of the FSKN officers in the applicant ’ s temporary health disorder had been based on a specialist ’ s opinion concerning her reaction to a conflict situation. The District Court had therefore rightly assessed the investigator ’ s refusal to institute criminal proceedings.", "E. Termination of the criminal proceedings against B", "43. On 30 December 2009 investigator R.K. from the investigative committee of the Krasnodar regional prosecutor ’ s office terminated the criminal proceedings against B for lack of the elements of a crime in his actions, on the grounds that evidence in the case had been obtained unlawfully. The original copy of the record of the test purchase of drugs, on the basis of which the criminal proceedings had been instituted, was missing. The available copy of the record was different from the original (in particular, indicating a different place at which E.N. had handed over the drugs to the FSKN officers) and therefore fictitious. In order to establish the circumstances of the drugs sale, investigator R.K. questioned P.M., one of the attesting witnesses to the sale of drugs. According to P.M. ’ s witness statement, he had testified falsely, at the request of the FSKN officers, to having seen the transfer of drugs from B to E.N. and from E.N. to the FSKN officers on 30 May 2008. That day P.M. had not met the FSKN officers and had not witnessed any transfers of drugs. On 31 May 2008 FSKN officer S.S. had taken him and another attesting witness, A.Sh., to a place near school no. 1 in Apsheronsk. When they had arrived, B had been standing handcuffed near a car. There had been a bag containing money in the car. P.M. had not seen who had put it there. Then they had gone to B ’ s home in order for a search to be carried out, but they had not been let in by B ’ s wife. They had gone to the FSKN office where P.M. had been shown a plastic bag and had been told that the bag with drugs had been sold by B to E.N., who had then handed it over to the FSKN officers. P.M. remembered signing documents at the FSKN officers ’ request without reading them.", "44. Investigator R.K. noted that there were no video recordings or any other evidence which could objectively confirm that B had transferred drugs to E.N. Therefore, it was impossible to establish the circumstances of a sale of drugs. Furthermore, the criminal proceedings against B had been instituted by investigator A.F. in breach of Article 151 of the Code of Criminal Procedure, which provided that criminal cases concerning crimes committed by police officers were to be investigated by investigative committees of the prosecutor ’ s office. The FSKN officers had been aware of B ’ s status as a police officer. Therefore, the investigative actions carried out by the FSKN investigator A.F. had been unlawful and the evidence obtained had been inadmissible." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION", "45. The applicant complained that the unjustified use of physical force against her father during his arrest in her presence and her treatment by FSKN officers had breached her rights under Article 3 of the Convention. She further complained under Article 13 of the Convention that there had been no thorough and independent investigation into that incident. Articles 3 and 13 of the Convention read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "1. The Government", "46. The Government contested the applicant ’ s allegations, relying on the results of the pre-investigation inquiry (see paragraph 17 above). They submitted that the applicant ’ s presence during B ’ s arrest at the scene of the crime, immediately after his receiving money for sold drugs, had not been anticipated. The arresting officers had been unable to predict the time and place of the offence committed by B. If B had not been arrested, the evidence of the criminal offence would have been lost.", "47. The Government stated that the authorities had conducted a comprehensive and thorough investigation into the applicant ’ s alleged ill ‑ treatment in compliance with Article 3. However, not a single piece of information, apart from what had been provided by the applicant ’ s family members, had demonstrated that force had been used against the applicant ’ s father or that she herself had been subjected to the treatment alleged. The applicant had availed herself of effective domestic remedies. The relevant decisions had not been in her favour because her allegations had been unsubstantiated.", "2. The applicant", "48. The applicant argued that as an involuntary witness to her father ’ s cruel arrest and beatings, she had not received any support or protection from a State representative. After her father ’ s arrest she had been left alone in his car, had run home alone and by chance had been found by one of her relatives in the street in a condition of profound shock. The incident had had serious consequences for her health and development. Ten years after the events complained of she was still suffering from its consequences. Given that she had been nine years old at the time and therefore more susceptible than an adult to the negative consequences of cruel treatment, and taking into account the long-lasting adverse effects it had had on her, the level of her suffering had been so high that her treatment by the police officers should be classified as torture.", "49. The applicant further argued that the authorities should have anticipated her possible presence at the scene of the arrest, since the arrest had been carried out near the school where her father had taken her. They could have, for instance, communicated with the school administration to prevent her from coming out of the school at the time of the arrest, or to ensure the presence of a member of the school staff to provide her with psychological support during the arrest. Afterwards they could have taken her back to the school in order to shorten her presence at the place of the arrest or to avoid her going home unaccompanied. The authorities had had the necessary time but had not taken any measures to prevent or minimise the harm to her health.", "50. The authorities had refused to initiate criminal proceedings into the applicant ’ s alleged ill-treatment by the police and, instead of a proper investigation, had carried out a superficial pre-investigation inquiry. Their decision had been based on the FSKN officers ’ statements and had failed to take into consideration evidence supporting the applicant ’ s allegations and the contradictions between the statements of the FSKN officers and the witnesses.", "B. Admissibility", "51. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "C. Merits", "1. General principles", "52. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000 ‑ XI).", "53. Where an individual makes a credible assertion that he or she has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. That investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII).", "54. Allegations of ill-treatment contrary to Article 3 of the Convention must be supported by appropriate evidence. To establish the facts, the Court applies the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII).", "55. In respect of children, who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge and effective deterrence against such serious breaches of personal integrity. Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see Söderman v. Sweden [GC], no. 5786/08, § 81, ECHR 2013).", "56. The Court has previously found in the case of Gutsanovi that the possible presence of children, whose young age makes them psychologically vulnerable, at the scene of an arrest is a factor to be taken into consideration in planning and carrying out this kind of operation (see Gutsanovi v. Bulgaria, no. 34529/10, § 132, ECHR 2013 (extracts)). In that case the Court found that the fact that the police operation had taken place in the early hours of the morning and had involved special agents wearing masks had served to heighten the feelings of fear and anxiety experienced by the children who had witnessed their father ’ s arrest, to the extent that the treatment to which they had been subjected exceeded the threshold of severity required for Article 3 to apply, amounting to degrading treatment (ibid., § 134).", "2. Application to the present case", "(a) The establishment of the facts", "57. It is not disputed between the parties that the applicant was present at the place of B ’ s arrest and saw what happened to him, and that shortly after those events she was diagnosed with a number of medical conditions, including a neurological disorder, enuresis and post-traumatic stress disorder. The applicant claimed that her health disorders had been caused by her exposure to a scene of violence against her father, who had not resisted his arrest, involving his being knocked to the ground and beaten up, notably being kicked repeatedly to his torso. The Government contested the applicant ’ s allegations, claiming that B ’ s arrest did not involve any use of force against him and that the authorities could not therefore be held responsible for any harm suffered by the applicant. In doing so the Government relied on the records of B ’ s detention facility and the statements made in the course of the pre ‑ investigation inquiry into the applicant ’ s allegations by:", "- FSKN officers S.K., V.D., A.O., V.E., E.N. and S.S.;", "- Federal Security Service officer S.P.;", "- Apsheronsk police officers K.A. and M.I.;", "- attesting witnesses A.Sh. and P.M., and", "- FSKN officer A.Z., who carried out the FSKN internal investigation (see paragraph 17 above).", "The Court will examine that material, together with the other material in the case file before it.", "58. According to the records from the detention facility in which B was detained after his arrest, he bore no traces of injuries and made no complaints (see paragraph 27 below). It is not necessary for the Court to examine the reliability of those records in view of B ’ s own statements that the blows received by him during his arrest did not leave bruises on his body (see paragraph 34 above). It cannot be excluded that the alleged force used against B – notably being knocked to the ground and kicked several times – could have left no visible traces on his body. The Court notes in this regard that – according to B and witness R.G. (see paragraphs 10 and 13 above) – the FSKN officers who arrested B, including the one who allegedly used force against him, were dressed in tracksuits (see also the statements by attesting witnesses A.Sh. and P.M., FSKN officer E.N. and Apsheronsk police officers K.A. and M.I., who mentioned that the arresting officers had been in civilian clothing, paragraphs 31 and 35-37 above). This suggests that they may have been wearing trainers, which might not have caused the same blunt-trauma bruising and abrasions as army-type boots (see, for example, Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § § 39, 43, 45 and 96, 12 December 2017).", "59. According to the identical written “explanations” made by FSKN officers S.K., V.D. and A.O., who apprehended B, and senior officer V.E., who was present during the arrest, no physical force was used against B during his arrest (see paragraph 24 above). According to FSKN officer E.N., who acted as a buyer in the undercover operation against B and was also present during B ’ s arrest, no physical force, “strong-arm tactics” or “holds” were used against B (see paragraph 36 above). Apart from the fact that the above-mentioned officers had a direct interest in denying the accusations made against them by the applicant, their statements sit ill with those made by S.P. and R.G.", "60. S.P., the Federal Security Service officer present during B ’ s arrest, acknowledged that physical force had been used against B. He contended that it had been necessary because B had tried to escape, and had not been excessive, that is it had not escalated into a beating (see paragraph 39 above). It should be noted that S.P. ’ s statement that B had tried to escape finds no support in the statements of the FSKN officers (see paragraphs 24 and 36 above), the attesting witnesses (see paragraphs 31 and 35 above) or witness R.G. (see paragraph 13 above). Nor was it claimed that B had resisted his arrest by using force.", "61. According to R.G., an electrician who had been carrying out maintenance work on the traffic lights near school no. 1 on the morning of 31 May 2008 and witnessed B ’ s arrest, FSKN officer S.K. delivered several blows to B during his arrest (see paragraph 40 above); he knocked B to the ground and kicked him (see paragraph 13 above). FSKN officer A.Z., who carried out the FSKN internal investigation, dismissed R.G. ’ s statements as unreliable. He alleged that R.G. was a drug user who had been arrested in the past for administrative offences of drugs consumption. Moreover, there had been no confirmation from his employer that R.G. had indeed been working in the area on 31 May 2008 (see paragraph 40 above). The Court does not find A.Z. ’ s assessment convincing, since he belonged to the same unit as the FSKN officers who were allegedly at fault, which raises an issue as to the independence of such an investigation. Apart from the fact that R.G. ’ s alleged drugs consumption or his employer ’ s failure to submit the relevant certificate would not as such be sufficient grounds to discard his statements, no details were given as regards any administrative proceedings against him. Furthermore, R.G., whose testimony was very important for establishing the facts, was never interviewed by the investigative committee, which instead relied on A.Z. ’ s assessment. The same is true in respect of a “specialist” (whose name, qualifications and other details were not provided) allegedly consulted by A.Z. and on whose opinion A.Z. had relied in concluding that the applicant had a pre-existing neurological pathology which made her prone to psychological trauma as a result of even a minor stressful situation (see paragraph 40 above), to hold that her health disorders had been caused by her having observed B being arrested without any use of force against him. This conclusion was adopted by the official pre-investigation inquiry without ever questioning the “specialist”.", "62. The Court also notes that FSKN officer S.S. arrived at the place of B ’ s arrest after B had been apprehended and therefore did not see his arrest (see paragraph 38 above). The same applies to B ’ s colleagues from the Apsheronsk police department, K.A. and M.I. (see paragraph 37 above). The latter contended that B ’ s shirt had been open and slightly torn, and that the shirt buttons had been missing. K.A. ’ s and M.I. ’ s statements therefore confirm the applicant ’ s allegation that during her father ’ s violent arrest his shirt had been torn and its buttons ripped off. This is also supported by her parents ’ statements (see paragraphs 10, 12 and 34 above), as well as by photographs of the shirt (see paragraph 16 above).", "63. Lastly, the Government relied on the explanations by attesting witnesses to the undercover operation against B carried out on 30 and 31 May 2008, A.Sh. and P.M., according to whom no physical force had been used against B during his arrest (see paragraphs 31 and 35 below). However, when examined as a witness a year later in relation to the criminal proceedings against B, P.M. acknowledged that he had testified falsely, at the request of the FSKN officers, that he had seen the transfer of drugs and money. He also acknowledged that on 31 May 2008 he and A.Sh. had been taken to the place of B ’ s arrest after B had been apprehended (see paragraph 43 above). It follows from P.M. ’ s witness statements that neither he nor A.Sh. saw B being apprehended, and the explanations they submitted in the course of the pre-investigation inquiry into the applicant ’ s complaint cannot have any evidentiary value. Furthermore, their statements, together with the findings in the decision terminating the criminal proceedings against B (see paragraphs 43-44 above), which were not disputed by the Government, discredit the explanations made by the FSKN officers, as well as the Government ’ s arguments about the unpredictability of the offence committed by B and the applicant ’ s presence at the “scene of the crime”, and the need to arrest B in order to prevent the loss of evidence (see paragraph 46 above).", "64. It transpires that E.N., who acted as a buyer in the FSKN operation against B, learned from a telephone call on the morning of 31 May 2008 that B was at the school (see E.N. ’ s statements and B ’ s statements about informing E.N. that he was at the school with his child, paragraphs 36 and 10, respectively). When B came out of the school together with the applicant, E.N. was waiting for him. Immediately after the meeting between B and E.N., B was arrested by the FSKN officers, who acknowledged in their explanations to the investigative committee that when they apprehended B, he was near his car in which his daughter, A, was sitting (see paragraph 24 above). Federal Security Service officer S.P. ’ s statements also show that the law-enforcement officers participating in B ’ s arrest were aware that B ’ s daughter, A, was present at the place of arrest (see paragraph 39 above).", "65. While the Court cannot examine the applicant ’ s allegation that she had been left to go home unaccompanied, which was not raised in the domestic proceedings (see paragraph 23 above), and cannot establish beyond reasonable doubt on the basis of the material before it her allegations about being addressed rudely and held in the car, the above assessment leads the Court to conclude that her allegations concerning her being exposed to her father ’ s arrest, and the violent nature of the arrest, were credible.", "(b) Compliance with Article 3", "66. The Court notes next that the Government ’ s version of the facts was based on the pre ‑ investigation inquiry, the first stage in the procedure for examining criminal complaints. The Court has held, however, that the mere carrying out of a pre-investigation inquiry, not followed by a preliminary investigation, is insufficient for the authorities to comply with the requirements of an effective investigation into credible allegations of ill ‑ treatment by the police under Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, § 136, 24 July 2014, and, more recently, Samesov v. Russia, no. 57269/14, § 51, 20 November 2018). The Court has no reason to reach a different conclusion in the present case. The authorities responded to the applicant ’ s credible allegations of treatment proscribed by Article 3 by carrying out a pre-investigation inquiry and refused to institute criminal proceedings and carry out a fully-fledged investigation. This was endorsed by the domestic courts, thereby departing from their procedural obligation under Article 3. The pre ‑ investigation inquiry did not provide the Government with a proper basis to discharge their burden of proof and produce evidence capable of casting doubt on the applicant ’ s credible allegations concerning her exposure to the violent arrest of her father, which the Court therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, § 85, 2 May 2017, and Samesov, cited above, § 53).", "67. The interests of the applicant, who was nine years old at the time, were not taken into consideration at any stage in the planning and carrying out of the authorities ’ operation against her father. The law-enforcement officers paid no heed to her presence, of which they were well aware, proceeding with the operation and exposing her to a scene of violence against her father in the absence of any resistance on his part. This very severely affected the applicant and, in the Court ’ s view, amounted to a failure on the part of the authorities to prevent her ill-treatment (see paragraph 55 above).", "68. There has therefore been a violation of the State ’ s positive substantive obligation under Article 3 of the Convention.", "69. There has also been a violation of Article 3 under its procedural limb in that no effective investigation was carried out in that respect.", "70. In view of its finding of a violation of Article 3 under its procedural limb the Court does not find it necessary to examine separately under Article 13 of the Convention the applicant ’ s complaint concerning the lack of an effective investigation into the incident of 31 May 2008.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "71. The applicant complained that the use of unjustified force against her father in her presence had also disregarded her feelings towards her beloved father in breach of her rights under Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "72. The Government contested that argument.", "73. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "74. Having regard to the finding relating to the applicant ’ s complaint under Article 3 (see paragraphs 67-68 above) which was based on the same facts as her complaint under Article 8, the Court considers that this complaint is absorbed by the preceding complaint and it is not therefore necessary to examine whether, in this case, there has also been a violation of Article 8.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "75. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "76. The applicant claimed compensation in respect of non-pecuniary damage, leaving it to the Court to determine its amount.", "77. The Government submitted that Article 41 should be applied in accordance with the Court ’ s case-law.", "78. The Court awards the applicant 25,000 euros (EUR) in respect of non-pecuniary damage.", "B. Costs and expenses", "79. The applicant also claimed EUR 4,500 for the costs and expenses incurred before the Court.", "80. The Government stated that Article 41 should be applied in accordance with the Court ’ s case-law.", "81. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, notably a legal services agreement concluded by the applicant after lodging her application with the Court, and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 for costs and expenses for the proceedings before the Court.", "C. Default interest", "82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 2001 and lives in St Petersburg.", "A. The applicant ’ s ill-treatment at a public nursery school and his parents ’ complaints to various local authorities", "6. In August 2004 the applicant started attending public pre-school educational institution no. 42 (“the nursery school” ). His teachers were Ms K., Ms P. and an assistant teacher, Ms Ch.", "7. In the spring of 2005 the applicant ’ s parents noticed a change in his behaviour. In particular, he became nervous and unwilling to go to nursery school. During the summer holidays of that year the applicant ’ s physiological state significantly ameliorated and his mood returned to normal. However, as soon as he resumed nursery school in September 2005 he again became nervous and frightened of the dark and noises. He resisted going to school and refused to discuss school with his parents or sisters.", "8. On 7 November 2005, when picking him up from the nursery school, the applicant ’ s mother noticed that his eyes were twitching and that he had a bruise on his left temple. The applicant complained that his neck and eyes were aching. The teacher, Ms P., told the applicant ’ s mother that the children had been given eye drops containing an antibiotic. According to her, one of the children in the class had an eye infection and it was necessary to take preventive measures against its spreading among the children.", "9. On 8 November 2005 the applicant was examined by an ophthalmologist, who noted a bruise on his temple. She found no symptoms of any eye infection or disease. She recommended a consultation with a neurologist in order to verify whether the eye tics could have neurological causes.", "10. On the same day the applicant started to display mouth tics.", "11. On 14 November 2005 the applicant ’ s mother lodged a complaint with the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well-being. She complained that the teachers at nursery school no. 42 had administered eye treatment to her son without her consent and had used physical force against him. Her son had developed nervous tics as a result.", "12. On 15 November 2005 the applicant was examined by a neurologist and was diagnosed with hyperkinesia (a state of excessive restlessness which is manifested in a wide variety of disorders that affect the ability to control motor movement and which is mainly psychological in nature).", "13. On 16 November 2005 the applicant ’ s mother complained to the local department of education about the incident of 7 November 2005 and asked that the applicant be transferred to another nursery school.", "14. By a letter of 23 November 2005 the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well ‑ being informed the applicant ’ s mother that the director of nursery school no. 42 had been disciplined for breaching sanitary standards.", "15. By a letter of 29 November 2005 the local department of education replied to the applicant ’ s mother, stating that the facts described in her complaint had been confirmed in part and that the director of the nursery school, teachers Ms K. and Ms P. and medical nurse Ms Pt. had been disciplined. It had been decided to transfer the applicant to another public nursery school.", "16. When the applicant learnt that he would not have to return to nursery school no. 42, he was happy and told his parents that he had been mistreated by Ms K. and Ms P. In particular, he had been punished for a failure to sleep during the afternoon sleeping hours. Sometimes he had been made to lie on a folding bed in the toilets. The lights in the toilets had been switched off and the teachers had told him that he would be eaten by rats. The applicant had felt very frightened as he had once seen a rat in the toilets. On other occasions he had been forced to stand in the entrance hall, barefoot and wearing only his underpants, for the entire duration of the sleeping hours. He had been very cold. The applicant had also on occasions been hit on the back with a fist. On one occasion the teachers had taped his mouth shut with sellotape. After he had started to suffocate, he had tried to remove the sellotape. The teachers had then taped his hands behind his back. Some other children had also been subjected to similar punishments. They had been threatened that if they complained to their parents about the teachers they would be punished.", "17. The applicant also told his parents in detail about what had happened on 7 November 2005. He had been given eye drops twice. In the morning Ms K. had bent his head back with such force that his neck had ached. In the afternoon, she had sat on the applicant ’ s legs and tried to force his eyes open with her hands. Frightened, the applicant had resisted. Ms K. had then slapped his face.", "18. On 23 November 2005 the applicant ’ s father was questioned by the police in connection with a complaint lodged by Ms K. and Ms Pt. that he had assaulted them. The applicant ’ s father stated to the police that his conflict with Ms K. and Ms Pt. had arisen because his four-year-old son had been mistreated by the staff of the nursery school. He denied assaulting them. The criminal proceedings against the applicant ’ s father were discontinued after one of the nursery school staff members stated in writing that Ms Pt. had attempted to convince her and other staff members to falsely accuse the applicant ’ s father of assaulting Ms K. and Ms Pt.", "19. On 21 December 2005 the local department of education informed the applicant ’ s mother that the director of nursery school no. 42 had been dismissed.", "20. By a letter of 13 March 2006 the local department of education informed the applicant ’ s father that an internal inquiry had established that teachers Ms K. and Ms P. had made some of the children sleep outside the sleeping quarters. That fact, although denied by Ms K. and Ms P., had been confirmed by assistant teacher Ms Ch. and by the grandmother of one of the children. Ms K. and Ms P. had been disciplined.", "21. By a letter of 17 July 2006 the Vice- Governor of St Petersburg informed the applicant ’ s mother that medical nurse Ms Pt. had been disciplined.", "B. Civil proceedings", "22. On 21 February 2006 the applicant ’ s mother sued nursery school no. 42 for compensation for the damage sustained by the applicant to his health.", "23. On 30 June 2006 the Kirovskiy District Court of St Petersburg approved a friendly settlement agreement between the applicant ’ s mother and nursery school no. 42. Under that agreement, the nursery school was to pay the applicant ’ s mother 5,000 Russian roubles (RUB ) ( approximately 150 euros (EUR) ) in compensation for medical expenses.", "C. Criminal investigation into the allegations of ill-treatment", "1. Pre-investigation inquiry", "24. On 29 September 2006 the applicant ’ s mother complained to the Kirovskiy district prosecutor ’ s office about her son ’ s ill-treatment by the staff of nursery school no. 42. She described the incident of 7 November 2005, complained that during the sleeping hours her son had been occasionally locked in the toilets with the lights off, and submitted that as a result of such treatment he had developed nervous tics. She also submitted that she had not received an adequate response to her complaints to the local department of education and the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well-being.", "25. By letter of 27 October 2006 the Kirovskiy district prosecutor ’ s office informed the applicant ’ s mother that an inquiry had been opened into her allegations of ill-treatment. It also noted that the local department of education had failed in its obligation under section 9 of the Minors Act to inform the district prosecutor ’ s office of the applicant ’ s ill-treatment (see paragraph 134 below).", "26. On 2 November 2006 the investigator questioned several of the parents of the children who had attended nursery school no. 42 with the applicant. Some of them stated that their children had never complained about being mistreated by teachers Ms P. or Ms K. Others stated that their children had told them about being locked in the entrance hall or in the toilets, where they had on occasion seen rats. They also confirmed that on 7 November 2005 eye drops had been given to the children without the parents ’ consent.", "27. Assistant teacher Ms Ch. stated to the investigator that on 7 November 2005 two children had shown symptoms of eye infection. Teacher Ms K. had consulted medical nurse Ms Pt., who had decided to give eye drops to all children in order to prevent the spread of the infection. The parents ’ consent had not been obtained. The drops had been given by the teacher herself rather than by the medical nurse. Ms K. had used physical force against those children who had resisted. Many of them had been frightened and had cried. Immediately after that the applicant ’ s eyes had started twitching. Ms Ch. also stated that both Ms K. and Ms P. had many times made certain children, including the applicant, sleep on folding beds in the toilets or in the entrance hall. Ms K. and Ms P. had often shouted at the children and had punished them by sending them to the toilets. She had once seen a child tied with string to his chair.", "28. The investigator also questioned Ms K., who denied mistreating the applicant or other children. She stated that on 7 November 2005 the children had been given eye drops by the medical nurse. The children had submitted to the treatment without any resistance or stress. No physical force had been used against the applicant or other children. The applicant had already had nervous tics before 7 November 2005.", "29. On an unspecified date at the beginning of November 2006 the applicant was questioned by the investigator. The applicant ’ s mother and a psychologist were present during the questioning. The applicant described the incident of 7 November 2005. He also stated that he and some other children had often been made to sleep on a folding bed in the entrance hall or in the toilets with the lights turned off or left standing in the entrance hall with few clothes on. They had been frightened and cold.", "30. On 8 November 2006 the Kirovskiy district prosecutor ’ s office refused to open a criminal investigation against the teachers of nursery school no. 42, finding no evidence of a criminal offence. The applicant ’ s parents were not given a copy of that decision.", "31. On 12 January 2007 the Kirovskiy district prosecutor ’ s office cancelled its decision of 8 November 2006 and resumed the pre ‑ investigation inquiry.", "32. The investigator then questioned Ms P. and medical nurse Ms Pt., who gave the same testimony as Ms K.", "33. During the following year the Kirovskiy district prosecutor ’ s office issued two more decisions (on 22 January and 6 July 2007 respectively) refusing to open a criminal investigation against the teachers of nursery school no. 42 on the ground that there was no evidence of a criminal offence having been committed.", "34. The applicant ’ s mother challenged those decisions before the Kirovskiy District Court. However, before the District Court could examine her complaints against the decisions, the Kirovskiy district prosecutor ’ s office annulled them ( on 20 June and 24 December 2007 respectively ) and resumed the pre-investigation inquiry. No investigative measures were performed during this one-year period.", "35. On 27 September 2007 the applicant ’ s medical documents were examined by a child psychiatrist at the request of the applicant ’ s mother. The psychiatrist found that before November 2005 the applicant had not suffered from any neurological or psychiatric disorders. He had, however, on occasions suffered allergic reactions. The psychiatrist further noted that in 2005 the applicant had been subjected to a prolonged, psychologically traumatic experience at the nursery school. Against the background of that prolonged, traumatic experience, the incident of 7 November 2005 involving the use of violence had served as a trigger for his present neurological disorder. An allergic reaction to the eye drops could have also contributed to the development of the disorder. The psychiatrist concluded that there had been a causal link between the traumatic experience suffered by the applicant in the nursery school from September 2005 to November 2005 and his persistent neurological disorder.", "36. On 24 December 2007 the Kirovskiy district prosecutor ’ s office noted that the pre-investigation inquiry was incomplete and that it was necessary to question the children who had attended the nursery school with the applicant and their parents, to obtain an expert opinion on the contra ‑ indications and side-effects of the eye drops given to the children, and to question other teachers at the nursery school.", "37. On 17 January 2008 the case was transferred to the Kirovskiy district police department for further pre-investigation inquiry.", "38. In February 2008 the investigator questioned the parents of some of the children who had attended the nursery school with the applicant. They stated that they did not have any complaints against teachers Ms P. and Ms K. None of them gave the investigator permission to question their children.", "39. The investigator also questioned one of the teachers at nursery school no. 42. The teacher stated that she could not give any useful information.", "40. On 29 February 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms P. and Ms K., having found no evidence of a criminal offence. The applicant ’ s parents were informed about that decision on 4 May 2008 and received a copy of it on an unspecified later date.", "41. On 23 May 2008, after being criticised by the St Petersburg prosecutor ’ s office for delays in the conduct of the pre-investigation inquiry and for its ineffectiveness, the Kirovskiy district police department cancelled the decision of 29 February 2008 and resumed the pre ‑ investigation inquiry.", "42. On 11 June 2008, in reply to a complaint by the applicant ’ s mother, the St Petersburg prosecutor ’ s office again criticised the Kirovskiy district prosecutor ’ s office for delays in the conduct of the pre-investigation inquiry and for its ineffectiveness.", "43. On 26 June 2008 the Kirovskiy district police department informed the staff of nursery school no. 42 that criminal proceedings into the applicant ’ s allegations of ill-treatment would not be opened because the prosecution had become time-barred.", "44. On 30 June 2008 the Kirovskiy district police department refused to open a criminal investigation into the allegations of ill-treatment, finding no evidence of a criminal offence. On 4 July 2008 the Kirovskiy district prosecutor ’ s office quashed that decision and ordered a further inquiry.", "45. On 11 July 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms K. It found that, although there was evidence that Ms K. ’ s actions amounted to cruel treatment of minors, an offence under Article 156 of the Criminal Code, the criminal proceedings had become time-barred.", "46. On 29 July 2008 the St Petersburg prosecutor ’ s office quashed the decision of 11 July 2008, finding that the inquiry had been incomplete. It noted that it was necessary to question the children who had attended the nursery school with the applicant and with their parents; to establish the seriousness of the damage sustained by the applicant to his health; to obtain and analyse the documents regulating the actions of the staff of public nursery schools; and to investigate Ms P. ’ s actions.", "47. On 9 August 2008 the investigator questioned the father of a child who had attended the nursery school with the applicant. He stated that his son had never complained of being ill-treated by the nursery school teachers.", "48. On 11 August and then again on 11 September 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms K. on the ground that there was no evidence of a criminal offence having been committed. Those decisions were cancelled on unspecified dates.", "49. In reply to new complaints lodged by the applicant ’ s mother, on 21 November 2008 the St Petersburg prosecutor ’ s office again criticised the Kirovskiy district prosecutor ’ s office for the delays in the conduct of the pre-investigation inquiry and for its ineffectiveness.", "50. On 1 December 2008 the investigator questioned the mother of another child who had attended the nursery school with the applicant. She stated that her daughter had never been mistreated by the staff of the nursery school.", "2. Investigation", "51. On 19 January 2009 the Kirovskiy district police department opened a criminal investigation against Ms K. and Ms P.", "52. On 4 March 2009 the applicant was granted the procedural status of victim. The applicant ’ s mother was recognised as his representative.", "(a) Evidence collected during the investigation", "53. In the course of the criminal investigation, which lasted at least until December 2014, the police department collected the following evidence.", "(i) Statements by the applicant", "54. On 4 March 2009 the applicant was questioned by the investigator in the presence of his counsel, his mother and a teacher. The applicant stated that Ms K. and Ms P. had often punished him and some other children. In particular, on many occasions they had made him sleep in the toilets and had threatened that he would be eaten by rats. Ms K. had once taped his mouth and hands with sellotape. She had also slapped him on the face when he had refused to open his eyes to receive eye drops. On another occasion Ms K. had splashed paint over his friend ’ s face because she had not liked his drawings. The applicant also stated that Ms K. and Ms P. had forbidden him from telling his parents about those punishments.", "55. On 24 March 2009 the applicant was taken by the investigator to nursery school no. 42, where he repeated his previous statements. In particular, he showed the investigator the spot in the toilets where his folding bed had been placed and the place in the entrance hall where he and other children had been forced to stand wearing only their underwear and T ‑ shirts and keeping their arms up and apart during the entire duration of the sleeping hours. He further showed the investigator where and how he had been bound with sellotape and where and how he had been given eye drops. He also showed the investigator a closet in which he had been locked in the dark. Lastly, he told the investigator that if he did not sleep during the sleeping hours Ms K. and Ms P. would hold his head against the bed until it started to ache. The applicant ’ s lawyer, the applicant ’ s mother, a psychologist and a teacher were present during the questioning.", "56. On 9 June 2009 the applicant was questioned again. He repeated his previous statements. He also added that Ms K. had hit him on the back.", "(ii) Statements by the suspects", "57. Ms P. was questioned by the investigator on 6 February and 21 May 2009, 23 August 2011 and 13 March 2014. She initially cited her right to remain silent and refused to testify. She then denied ill-treating the applicant or other children. She stated that the applicant had had nervous tics since September 2005. During the last round of questioning she asked that the criminal proceedings be discontinued as time-barred.", "58. Ms K. was questioned on 5 February and 22 June 2009 and 13 March 2014. She also initially refused to testify. She then denied ill ‑ treating the applicant or other children. She stated that the applicant had had nervous tics since the summer of 2005 and that assistant teacher Ms Ch. had given false testimony against her in revenge for critical remarks she had made in respect of Ms Ch. ’ s unsatisfactory work. During the last round of questioning she again refused to testify and asked that the criminal proceedings be discontinued as time-barred.", "(iii) Witness statements", "59. On 10 April 2009 medical nurse Ms Pt. was questioned. She stated that she had been the one who had administered eye drops to the children on 7 November 2005 because one of them had had an eye infection. When she had learned from the applicant ’ s mother that the applicant had eye tics, she had talked to Ms K. and Ms P., who had affirmed that the applicant had had nervous tics before 7 November 2005. She had never seen Ms K. and Ms P. mistreating the children. However, when questioned on 24 October 2011 and 24 July 2012 Ms Pt. stated that she had lied during the previous rounds of questioning about having given the eye drops to the children on 7 November 2005. In fact the eye drops had been given by Ms K. without her (that is to say Ms Pt. ’ s) permission. She had lied about that fact because she had had felt sorry for Ms K. and had not wanted her to be punished.", "60. On 19 June 2009 and 21 October 2010 assistant teacher Ms Ch. was questioned. She stated that on 7 November 2005 Ms K. had given eye drops to the children on the advice of the medical nurse. Ms K. had used physical force against those children who had resisted. Many of them had been frightened and had cried. Immediately after that the applicant ’ s eyes had started twitching. Ms Ch. also stated that on many occasions she had seen Ms K. and Ms P. make the applicant and some other children sleep on folding beds in the toilets or in the entrance hall. Ms K. and Ms P. had often shouted at the children and had punished them by locking them up in the toilets. She had once seen a child tied with string to his chair. She added that she had never talked to the applicant ’ s parents except at the nursery school.", "61. On 30 June 2009, 2 4 and 30 August 2011, and 12 and 13 March 2014 the investigator held confrontations between Ms Ch. and Ms P., between Ms Ch. and Ms K., and between Ms Pt. and Ms Ch. They all reiterated their previous statements.", "62. In April and May 2009, October and November 2011 and July 2012 the investigator questioned six teachers from nursery school no. 42. They stated that they had never seen Ms K. or Ms P. mistreating the children. Some of them also stated that the applicant had already had nervous tics before the incident of 7 November 2005. One of them stated that assistant teacher Ms Ch. had sometimes taken the applicant home in the evenings because she lived in the same block of flats as the applicant. Ms Ch. had often shouted at the children in the nursery school and the children had been afraid of her.", "63. On 21 September 2009 the investigator questioned the former director of nursery school no. 42. She stated that Ms K. and Ms P. had been competent and affectionate teachers who had been appreciated by the children and their parents. She had never received any complaints about them.", "64. On 12 December 2011 and 16 July 2012 the investigator questioned the then director of nursery school no. 42, who had taken up that position in December 2005. She gave positive references for Ms P. and Ms K. She stated that she had never seen them mistreating the children or received any complaints from the parents in respect of her.", "65. In April, May and September 2009, September and November 2011, and July 2012 the investigator questioned the parents of several children who had attended the nursery school with the applicant. Most of them stated that their children had never complained of having been mistreated by Ms K. or Ms P. One of them stated that her son had on occasions been punished by the teachers; in particular he had been made to sleep outside the sleeping quarters, in the changing room. Her son had also told her that he had seen a rat in the toilets. She had, moreover, seen some children carrying heavy folding beds from one place to another upon the instruction of the teachers. Lastly, she stated that her son had told her on 7 November 2005 that Ms K. had used force against the applicant ( who had resisted and cried ) when administering eye drops to him. Another parent stated that Ms K. had locked her son up in the toilets on two occasions and had once made him sleep outside the sleeping quarters, near the toilets. Another parent stated that her daughter had told her about the applicant and another boy being made to sleep separately from the others. She however did not know the details.", "66. Between 16 November and 2 December 2011 the investigator questioned four of the children who had attended the nursery school with the applicant. They all stated that Ms K. and Ms P. had been kind to them and had never mistreated them or other children.", "67. The applicant ’ s mother was questioned on 10 March and 9 April 2009 and on 14 October 2010. She described the applicant ’ s change in behaviour and mood after he had started to attend nursery school. She described the incident of 7 November 2005 and her son ’ s subsequent development of nervous tics. She also related a conversation she had had with her son during which he had for the first time told her about being mistreated by Ms K. and Ms P. She also stated that her son continued to suffer from nervous tics and to undergo treatment for them. Lastly, she told the investigator that although Ms Ch. ’ s sister was her neighbour she did not have any friendly relationship with her.", "68. On 24 November 2011 and 28 February 2014 the applicant ’ s father was questioned. He made similar submissions as the applicant ’ s mother.", "69. On 7 December 2011 and 28 February 2014 the investigator held confrontations between the applicant ’ s mother and one of those teachers at the nursery school who had already been questioned in November 2011. They both reiterated their previous submissions.", "70. On 13 December 2011 and 12 March 2014 the investigator held confrontations between Ms Ch. and one of the teachers of the nursery school. Ms Ch. confirmed her previous submissions, while the teacher stated that Ms P. and Ms K. had never mistreated the children, that Ms Ch. had shouted at the children, that Ms. Ch. had sometimes babysat the applicant and that the applicant had had nervous tics before November 2005.", "71. On 17 March 2014 the investigator questioned the applicant ’ s neighbour who lived on the same landing, who stated that the applicant ’ s tics had started in November 2005. She also stated that the applicant ’ s parents were on good terms with Ms Ch. ’ s sister but that she had not noticed any kind of relationship between the applicant ’ s parents and Ms Ch. herself.", "72. On 12 March 2014 the applicant ’ s mother produced material from the civil case file and asked that it be included in the criminal case file. In particular, she asked for the inclusion of the written statement by one of the staff members of nursery school no. 42 (see paragraph 18 above) that medical nurse Ms Pt. had attempted to convince her and other staff members to give false testimony against the applicant ’ s family. On 17 March 2014 the investigator refused the requests, finding that the documents from the civil case file were irrelevant to the criminal case.", "(iv) Expert opinions", "73. On 10 April 2009 a panel of psychiatrists and psychologists examined the applicant and issued an expert opinion. They found that the applicant continued to suffer from nervous tics. Given that such tics could have had both organic and neurological causes, it was impossible to establish a causal link between the events of November 2005 and the applicant ’ s current neurological disorder. Given the applicant ’ s age at the material time and the time that had passed since the events in question, the applicant could not accurately recall those events. He was therefore psychologically incapable of testifying within the framework of the criminal proceedings.", "74. On 9 October 2009 a panel of medical experts examined the applicant ’ s medical records and issued an expert opinion. They noted that his nervous tics could have had both organic and neurological causes. It was therefore impossible to establish a causal link between the events of September - November 2005 and the applicant ’ s current neurologic disorder.", "75. On 14 January 2011 a panel of experts in psychiatry and psychology examined the applicant and analysed his medical records. When interviewed by the experts, the applicant stated that he wanted to forget about what had happened to him in the nursery school but he was constantly being reminded of those events because of the investigation. He affirmed that his tics were aggravated each time that he remembered, or had to discuss, the treatment to which he had been subjected in the nursery school. The experts confirmed that the aggravation of the tics was indeed related to the applicant ’ s memories of the nursery school. The experts found that before November 2005 the applicant had not suffered from any psychiatric disorder. There had been a causal link between his nervous disorder and the prolonged, psychologically traumatic experience to which he had been subjected in the nursery school from September to November 2005. Many years later he still continued to suffer from nervous tics. He had therefore suffered damage of medium severity to his health. The experts further noted that the applicant did not suffer from any memory or intellectual disorder and that his intellectual development corresponded to his age; he was therefore capable of understanding and relating the relevant events accurately. However, his ability to remember the events had decreased with time. If in 2006 he had been still capable of remembering the events in question accurately, with the passage of time his memory of the events had become unrealistic and distorted. His statements – both in 2009 and at that current moment – could not therefore be relied upon in the criminal proceedings. Moreover, given that each discussion of the relevant events revived his memories of the traumatic experience and prevented him from moving on, his further participation in investigative measures was inadvisable.", "76. On 6 April and 2 November 2011 the investigator questioned a psychiatric expert chosen by the applicant ’ s mother. The expert stated that she disagreed in part with the expert opinion of 14 January 2011. In her opinion, the applicant had suffered severe damage (rather than damage of medium severity) to his health.", "77. On 25 and 26 October and 23 December 2011 and 28 February 2014 the investigator questioned some of the experts who had participated in the expert examinations mentioned above. They confirmed the findings contained in the respective expert opinions.", "(v) Other medical evidence", "78. On 11 March 2009 the psychologist treating the applicant stated to the investigator that the applicant had been suffering from a neurological disorder since November 2005. His health had improved as a result of the treatment.", "79. On 17 July 2009 the applicant ’ s mother submitted to the investigator a copy of a medical certificate showing that the applicant did not have any anomalies in the brain. She argued that the certificate proved that the applicant ’ s neurological disorder was psychological rather than organic in nature.", "80. On 11 November 2009 the investigator questioned a child psychiatrist who, after examining the applicant ’ s medical records, stated that there was a causal link between the traumatic experience suffered by the applicant in the nursery school from September until November 2005 and his persistent neurological disorder.", "81. On 22 April 2010 a psychiatrist and a psychologist analysed the applicant ’ s medical records at the applicant ’ s mother ’ s request. They found that in the absence of any anomalies in the applicant ’ s brain, his neurological disorder could not be organic in nature. It was highly probable that they had been caused by psychological trauma. Given that the nervous tics had appeared for the first time in November 2005, there was a causal link between the ill-treatment in the nursery school to which the applicant had been subjected from September until November 2005 and his nervous tics. Finally, the experts noted that the applicant was of normal intellectual development and did not suffer from any memory or intellectual disorders. His statements to the investigator had been detailed and consistent. There were therefore no reasons to consider that the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings.", "(b) The course of the investigation", "82. The investigation was suspended from 2 until 16 September, from 23 until 30 September, from 9 until 12 October, from 15 October until 5 November and from 6 until 11 November 2009; from 15 September until 11 October, and from 22 October until 28 November 2010; from 15 December 2010 until 11 January 2011, from 15 January until 28 March, from 28 until 29 July, from 16 June until 4 August, and from 5 until 6 September 2011; and from 30 December 2011 until 9 July 2012. The decisions to suspend the investigation were taken by the investigator on the basis of medical certificates showing that Ms K. was on maternity leave and could not therefore participate in investigative measures. All those decisions were annulled by the investigators ’ superior as unlawful.", "83. On 17 July 2009 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms. P., finding that their actions in the period from September to November 2005 amounted to battery or other violent acts causing physical pain and cruel treatment of minors, offences under Article 116 § 1 and 156 § 1 of the Criminal Code. The prosecution of those offences was time-barred. There was insufficient evidence of premeditated infliction of damage of medium severity to health, an offence under Article 112 of the Criminal Code. Moreover, according to the experts, the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings.", "84. On 27 July 2009 the Kirovskiy district prosecutor ’ s office quashed the decision of 17 July 2009, finding that the investigation was incomplete, and ordered further investigative measures.", "85. On 29 August 2009 the applicant ’ s mother complained to the Kirovskiy district prosecutor ’ s office that, despite her having lodged numerous requests, she had still not been given copies of the decisions of 17 and 27 July 2009.", "86. On 11 November 2009 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms. P. for the same reasons as those set out in the decision of 17 July 2009.", "87. On 25 June 2010 the Kirovskiy District Court found that the decision of 11 November 2009 had been unlawful because the findings contained in that decision had been contradictory. It held, in particular, that in order to resolve those contradictions it was necessary to perform a new psychiatric examination of the applicant.", "88. On 19 July 2010 the Kirovskiy district prosecutor ’ s office quashed the decision of 11 November 2009 and ordered further investigative measures.", "89. By a letter of 26 August 2010 the St Petersburg prosecutor ’ s office criticised the Kirovskiy district prosecutor ’ s office for the delays and the ineffectiveness of the investigation. On the same day the Kirovskiy district prosecutor ’ s office gave instructions to the Kirovskiy district police department as regards further investigative measures to be performed.", "90. On 5 December 2011 Ms K. asked the investigator to discontinue the proceedings. She was suspected of inflicting damage to health of medium severity, an offence under Article 112 of the Criminal Code. The statutory limitation period for that offence was six years. The proceedings had therefore become time-barred. On the same day the prosecutor refused Ms K. ’ s request, finding that the previous expert examinations had yielded contradictory results. It was therefore necessary for a new expert examination to be performed in order to establish the severity of the damage sustained to the health of the applicant. The investigation could not therefore be discontinued.", "91. On 15 December 2011 Ms P. also asked the investigator to discontinue investigations as time-barred. On the same day the prosecutor refused the request for the same reasons as those for which Ms K. ’ s similar request had been refused.", "92. On 8 February 2012 the Kirovskiy District Court examined Ms K. ’ s complaint against the decision of 5 December 2011 and dismissed it. It found that it was necessary for an additional expert examination to be performed in order to establish the severity of the damage sustained by the applicant to his health. If experts were to find that the applicant had sustained severe damage to his health, the limitation period would be ten years and the proceedings would not have become time-barred.", "93. On 13 July 2012 Ms K. again asked the investigator to discontinue the investigation because the proceedings had become time-barred. On the same day the investigator refused the request for the same reasons as those above.", "94. On 7 August 2012 the investigator found that after 16 June 2011 the investigation had been extended in breach of the procedure and time-limits provided by law. The investigative measures carried out between 16 June 2011 and 9 July 2012 had therefore been unlawful and all evidence collected during that period was inadmissible.", "95. On 10 August 2012 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms P., finding that there was insufficient evidence of a criminal offence under Article 112 of the Criminal Code. It noted that only four witnesses had confirmed that ill ‑ treatment had occurred : the applicant, the applicant ’ s mother, Ms Ch. and Ms Pt. ( in her statements of 24 July 2012 ). The experts had found that, because of his young age at the material time, the applicant ’ s description of the events was unreliable and his further participation in investigative measures was inadvisable. There were therefore doubts about the credibility of his statements. The applicant ’ s mother ’ s statements were equally unreliable because she had learned about the events from the applicant. Ms Pt. ’ s statements of 24 July 2012 contradicted her previous statements and statements by other witnesses. They could not therefore be considered reliable either. The expert opinions establishing a causal link between the alleged ill-treatment and the applicant ’ s neurological disorder could not serve as evidence of ill-treatment because it was not within the experts ’ remit to establish whether or not ill-treatment had occurred. The expert opinions had been made on the assumption that such ill-treatment had indeed taken place. Ms Ch. ’ s statements therefore constituted the only evidence of such ill-treatment. The investigator considered that those statements were insufficient to prove that ill-treatment had indeed taken place. The investigator further noted that all evidence collected between 16 June 2011 and 9 July 2012 had been declared inadmissible. Given that that evidence did not contain any proof of ill-treatment, it was not necessary to collect it again.", "96. The applicant ’ s parents learned about that decision on 24 August 2012 and received a copy of it on 27 August 2012.", "97. On 9 October 2012 the applicant ’ s mother challenged the Kirovskiy district police department ’ s decision of 10 August 2012 to discontinue the criminal proceedings before the Kirovskiy District Court against Ms K. and Ms P. On 23 October 2012 the applicant ’ s mother also challenged that decision before the St Petersburg prosecutor ’ s office.", "98. On 23 November 2012 the St Petersburg prosecutor ’ s office found that the decision of 10 August 2012 had been lawful.", "99. On 2 August 2013 the Kirovskiy District Court rejected the complaint lodged by the applicant ’ s mother on 9 October 2012. It found that the investigation had been thorough and effective. The breaches of procedure committed during the investigation – such as the failure to promptly notify the applicant ’ s mother about certain procedural decisions taken by the investigator or the investigator ’ s failure to comply with the prosecutor ’ s instructions – were insufficiently serious as to warrant the quashing of the decision of 10 August 2012.", "100. On 24 December 2013 the St Petersburg City Court quashed the decision of 2 August 2013 on appeal and found that the decision of 10 August 2012 to discontinue the investigation had been unlawful. It found that the investigation had been ineffective. In particular, given that all evidence collected between 16 June 2011 and 9 July 2012 had been declared inadmissible, it was necessary to undertake anew the investigative measures carried out during that period and to carry out further investigative measures. The court also noted that although, according to the experts, the statements that the applicant had given after 2006 were unreliable, the statements that he had given before then could be taken into account in the assessment of evidence. The City Court also criticised the District Court for the delays in the examination of the complaint lodged by the applicant ’ s mother on 9 October 2012 and the resulting excessive length of the judicial proceedings.", "101. On 5 March 2014 the applicant ’ s mother applied to the investigator, asking that Ms P. and Ms K. be charged with the premeditated infliction of severe damage to health. The investigator refused her request, finding that there was no evidence of the premeditated infliction of severe damage to health.", "102. On 18 March 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K., finding that their actions did not amount to a criminal offence under Article 112 of the Criminal Code.", "103. On 20 March 2014 the applicant ’ s mother challenged that decision before the St Petersburg prosecutor ’ s office, submitting that the investigation had been incomplete. On 18 April 2014 the St Petersburg prosecutor ’ s office found that the decision of 18 March 2014 to discontinue the criminal proceedings had been lawful.", "104. On 23 May 2014 the Kirovskiy District Court held that the decision of 18 March 2014 had been unlawful, finding that the investigator ’ s assessment of evidence had been selective and that he had disregarded some facts and evidence ( such as a bruise on the applicant ’ s face ), some witness statements, and expert opinions. It also found that the investigation had been excessively long.", "105. On 9 June 2014 the Kirovskiy district police department annulled the decision of 18 March 2014 and resumed the investigation. After two written requests for a copy of that decision, the applicant eventually received it on 30 June 2014.", "106. On 19 July 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K. The investigator found that although they had indeed given eye drops to the applicant, thereby causing damage of medium severity to his health, there was no evidence of intent to cause such damage. The infliction of damage to health had not therefore been intentional or premeditated. The police department further added that although the applicant had indeed had a bruise on his face, it was not possible to establish how he had received that bruise. The applicant ’ s testimony was unreliable due to his young age and mental development at the time of his giving it, while the allegations of ill ‑ treatment made by the applicant ’ s mother and by Ms Ch. had been countered by the statements of all other witnesses – namely the staff of the nursery school and the parents of other children – that Ms P. and Ms K. had never mistreated the applicant or other children. The investigator concluded that the evidence collected was contradictory and that it was not possible to resolve that contradiction. Any further investigative measures would be useless. Given that suspects should benefit from any doubt, it could not be found that Ms P. ’ s and Ms K. ’ s actions amounted to a criminal offence under Article 112 of the Criminal Code.", "107. On 29 August 2014 the St Petersburg prosecutor ’ s office annulled the decision of 19 July 2014, finding that the investigation had been ineffective and incomplete. In particular, the criminal proceedings had been unlawfully discontinued even though it had been established that Ms P. and Ms K. had mistreated the applicant and had caused damage to his health.", "108. On 12 September 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K. for the same reasons as those given in the decision of 19 July 2014.", "109. On 15 October 2014 the St Petersburg prosecutor ’ s office annulled the decision of 12 September 2014, finding that the investigator had not complied with the prosecutor ’ s decision of 29 August 2014.", "110. On 10 November 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K., repeating verbatim the decision of 12 September 2014.", "111. On 4 December 2014 the Kirovskiy district police department again refused to open criminal proceedings against Ms P. and Ms K. under Article 156 of the Criminal Code ( cruel treatment of minors), finding that the prosecution had become time-barred.", "(c) The applicant ’ s complaints about the ineffectiveness of the investigation", "112. The applicant ’ s mother several times asked the investigator to declare the expert opinions of 10 April 2009 and 9 October 2009 inadmissible as evidence. She argued in particular that the panel of experts of 10 April 2009 had not included an expert in child psychiatry. The investigator refused the requests made by the applicant ’ s mother, finding that the expert opinions of 10 April 2009 and 9 October 2009 had been obtained in accordance with the procedure prescribed by law and had contained clear findings.", "113. The applicant ’ s mother lodged numerous complaints about the alleged ineffectiveness of the investigation with the Kirovskiy district police department, the Kirovskiy district prosecutor ’ s office, the St Petersburg prosecutor ’ s office, the Prosecutor General and the Kirovskiy and Krasnogvardeyskiy District Courts of St Petersburg. She complained that the investigation had been flawed by delays, in particular on account of the numerous unlawful suspensions of the investigation, and that she had often been denied access to the case file. She also complained that, although sufficient evidence of ill-treatment had been gathered, Ms P. and Ms K. had still not been charged with a criminal offence. She further argued that the applicant had sustained severe damage to his health (rather than damage of medium severity) as a result of the ill-treatment he had suffered. She also challenged the investigator ’ s refusals to declare the expert opinions of 10 April 2009 and 9 October 2009 inadmissible as evidence.", "114. By letters of 16 and 18 November 2011 the St Petersburg prosecutor ’ s office informed the applicant ’ s mother that the investigator and the officials of the Kirovskiy district prosecutor ’ s office responsible for supervising the case had been disciplined for the delays during the investigation and its ineffectiveness.", "115. On 2 December 2011 the Kirovskiy district prosecutor ’ s office noted that the investigation had been conducted with serious delays and shortcomings. In particular, the investigator had not performed all requisite investigative measures, such as an additional medical examination of the applicant.", "116. On 12 January 2012 the Kirovskiy District Court found that it had no authority to assess whether the evidence was sufficient for charges to be brought. It was for the investigator to assess the collected evidence and to decide whether charges were to be brought.", "117. On 3 February 2012 the Kirovskiy district prosecutor ’ s office found that the investigator ’ s refusals (see paragraph 112 above) to declare the expert opinions of 10 April and 9 October 2009 inadmissible as evidence had been lawful.", "118. On 7 February 2012 the Kirovskiy District Court found that the rights of the applicant ’ s mother had indeed been breached by the failure to provide her with copies of the numerous decisions to suspend the investigation. However, given that all of those decisions had been annulled, it was not necessary to examine the applicant ’ s complaint relating to those decisions. Moreover, given that the decisions had been annulled by the investigator ’ s superiors, the court concluded that those superiors had exercised effective supervision over the course of the investigation. On 18 April 2012 the St Petersburg City Court quashed that decision on appeal for procedural defects.", "119. On 13 August 2012 the Kirovskiy District Court found that the investigator had still not organised an additional expert examination of the applicant, even though he had been instructed to do so in August 2010 and again in August 2011. It also found that the applicant ’ s mother had been unlawfully denied access to some documents in the case file. On 16 October 2012 the St Petersburg City Court quashed that decision on appeal for procedural defects.", "120. On 24 August 2012 the Krasnogvardeyskiy District Court of St Petersburg found that the complaints lodged by the applicant ’ s mother about the delays and the ineffectiveness of the investigation were well ‑ founded. However, given that on 10 August 2012 the investigation had been discontinued for lack of evidence of a criminal offence, they had to be dismissed. On 15 November 2012 the St Petersburg City Court quashed that decision on appeal. It found that some of the complaints lodged by the applicant ’ s mother had not been examined, that the decision had been based on certain documents that had not been examined during the hearing and that the court, even though it had found some of the complaints to be well ‑ founded, had nevertheless dismissed them.", "121. On 14 February 2013 the Kirovskiy District Court found that the investigator ’ s decisions issued between 15 September 2010 and 6 October 2011 to suspend the investigation had been unlawful. The rights of the applicant ’ s mother had, moreover, been breached by the investigator ’ s failure to inform her about the suspensions of the investigation. Her complaint that the investigator had intentionally delayed the investigation with the aim of rendering the proceedings time-barred was, however, unsubstantiated. The investigation had been discontinued for lack of evidence of a criminal offence rather than on the ground that the proceedings had become time-barred.", "122. On 24 April 2013 the Kirovskiy District Court found that the applicant ’ s mother had been unlawfully denied access to certain documents in the case file. It however rejected the remainder of her complaints relating to the alleged ineffectiveness of the investigation. In particular, the court established that the investigator had not complied with the prosecutor ’ s instructions as to additional investigative measures to be performed. However, the prosecutor had later confirmed the investigator ’ s decision to discontinue the investigation, thereby agreeing that it was no longer necessary to comply with his previous instructions and to undertake the investigative measures in question. The investigator ’ s actions had therefore been lawful. On 6 August 2013 the St Petersburg City Court upheld that decision on appeal, finding it lawful, well-reasoned and justified.", "123. On 17 March 2014 the Kirovskiy district police department replied to the applicant ’ s mother that all necessary investigative measures had been performed and that all relevant facts had been established. It was therefore not necessary to carry out any further investigative measures. On the same day the Kirovskiy district prosecutor ’ s office also replied to the applicant ’ s mother that the investigation had been thorough and complete and that there was no need for any further investigative measures.", "D. The applicant ’ s medical documents", "124. The applicant is regularly examined by a neurologist. After the initial diagnosis of hyperkinesia on 15 November 2005 (see paragraph 12 above), he was examined by a neurologist on 2 February, 24 April and 10 October 2006 and 26 January, 25 April, and 18 and 22 May 2007. He complained of nervous tics, sleeping difficulties, nervousness and fears. The neurologist noted that the symptoms had been caused by a prolonged, psychologically traumatic experience at the nursery school in 2005. The applicant was prescribed treatment.", "125. From September 2007 until June 2008 the applicant followed a course of treatment for nervous tics.", "126. On 22 October 2008 the applicant ’ s medical documents were examined by a child psychiatrist, who found that the applicant continued to suffer from a neurological disorder of medium severity.", "127. From March until June 2009 the applicant underwent a new course of treatment for nervous tics. He underwent a further course of treatment between January and April 2010.", "128. Further medical certificates stated that in 2014 the applicant was still suffering from a neurological disorder and was following treatment for it." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Criminal Code", "129. The statute of limitation is set as follows:", "- two years for minor offences;", "- six years for offences of medium severity;", "- ten years for serious offences;", "- fifteen years for especially serious offences.", "The statute of limitation stops running when the conviction enters into force (Article 78).", "130. Premeditated infliction of severe damage to health, that is to say damage resulting, inter alia, in a psychiatric disorder, is punishable by up to eight years ’ imprisonment (Article 111 § 1). The same degree of damage inflicted on a minor is punishable by up to ten years ’ imprisonment (Article 111 § 2).", "131. Premeditated infliction of damage to health of medium severity resulting in a lengthy illness is punishable by up to three years ’ imprisonment (Article 112 § 1). The same degree of damage to health inflicted on a minor is punishable by up to five years ’ imprisonment (Article 112 § 2).", "132. Battery or other violent acts causing physical pain are punishable by up to three months ’ imprisonment (Article 116).", "133. Cruel treatment of minors by parents, teachers or other staff members of educational institutions is punishable by up to three years ’ imprisonment (Article 156).", "B. The Minors Act", "134. The Federal Law on Basic Measures for Preventing Child Neglect and Delinquency of Minors, no. 120-FZ of 24 June 1999 (“the Minors Act”) provides that state authorities dealing with minors, such as local departments of education, have an obligation to safeguard the rights and legitimate interests of minors and to protect minors from discrimination, physical or psychological violence, insulting behaviour, rough treatment, and sexual or other forms of exploitation. They must immediately inform the appropriate prosecutor ’ s office about any breaches of the rights or freedoms of minors. They must also immediately inform the police about any cruel treatment of minors or other criminal acts against minors committed by parents or other persons (section 9 § 2 (1) and (5)).", "C. Legal status of nursery schools", "135. The regulations for pre-school educational institutions, approved by Governmental Decree no. 677 of 1 July 1995 (in force at the material time) governed the functioning of public and municipal pre-school educational institutions and served as a model for private pre-school educational institutions (paragraph 1). It provided that a pre-school educational institution (“a nursery school” or “ a pre-school ”) was an educational institution offering upbringing, learning, supervision, care and health improvement to children between the ages of two months and seven years [1] and following various pre-school educational curricula (paragraph 3).", "136. Nursery schools were responsible for the life and health of the children entrusted to them. They were also responsible for providing quality education to children in accordance with the curricula and taking into account their age, psychological development, abilities, interests and needs (paragraph 9).", "137. Nursery schools might be founded either by federal or regional executive authorities (public nursery schools) or by municipal authorities (municipal nursery schools) (paragraph 12).", "138. A nursery school was registered as a separate legal entity (paragraph 11). It was to have a statute, a bank account and a seal (paragraph 14).", "139. A nursery school started operating after receiving a State licence to provide education (paragraph 15) and obtaining State certification that it had met the formal official requirements of the curriculum ( paragraph 16). It was assessed by the authorities every five years for compliance with State ‑ established standards in respect of the content, level and quality of pre-school education (paragraph 15.1).", "140. A nursery school might choose a curriculum from a set of officially approved curricula or develop its own curriculum, which had to meet the educational standards established by the State (paragraph 19).", "141. Nursery schools were to employ medical staff, who were responsible – together with the nursery school ’ s management – for their pupils ’ health and physical development (paragraph 23).", "142. The relationship between a nursery school and the parents of its pupils were governed by a contract, which was to specify the rights and obligations of each party in respect of the process of upbringing, education, supervision and care (paragraph 30).", "143. Relationships between the staff of nursery schools and children should be based on the principles of cooperation, respect and freedom of development, taking into account the personal characteristics of each child (paragraph 32).", "144. The director of a public nursery school was appointed in accordance with its statute and Russian law. The director of a municipal nursery school was appointed by the municipal authorities ( paragraph 40). The director employed and dismissed the teachers, who had to have all the necessary professional qualifications. The director managed the nursery school belongings ( имущество ) within the limits set by the founders. He or she was responsible to the founders for the operation and management of the nursery school (paragraphs 34 and 41).", "145. The founders provided the nursery school with land for permanent use, as well as with buildings and all necessary equipment. The founders retained ownership of the property but the nursery school might exercise the right of operational management ( право оперативного управления ) over it (paragraph 42).", "146. Nursery schools were financed by their founders from the State or municipal budget and from other sources. The level of such financing was calculated on the basis of State-established rates per one pupil. Nursery schools might be also financed in part by payments from parents, donations from legal entities or private persons, and by other means (paragraphs 45 ‑ 46 ).", "147. A nursery school was liable for its obligations within the limits of its belongings and monetary funds ( see paragraph 44). The Civil Code, as in force at the material time, provided that a State institution (such as a nursery school) was liable for its obligations within the limits of its monetary funds. If an institution ’ s own monetary funds were insufficient, its founders – who owned its belongings ( имущество ) – bore subsidiary liability for such obligations (Article 120 § 2).", "D. Public officials", "148. The Plenary of the Supreme Court of the Russian Federation held, in its Ruling no. 19 of 16 October 2009, that for the purposes of Article 285 of the Criminal Code (abuse of power by a public official) and Article 286 of the Criminal Court (actions by a public official which clearly exceed his or her authority) a public official is an individual who – permanently, temporarily or by proxy – is vested with official powers or performs “managerial and regulatory functions” or “ administrative and economic functions ” in governmental or municipal bodies, public or municipal institutions, public companies or the armed forces of the Russian Federation or other military structures (paragraph 2).", "149. Individuals vested with official powers are individuals who have rights and obligations relating to the functioning of legislative, executive or judicial authorities, as well as employees of law-enforcement and supervisory bodies who have coercive or regulatory power in respect of third parties having no subordinate relationship to them or who are empowered to take mandatory decisions in respect of individuals, legal entities or institutions, irrespective of their status (paragraph 3).", "150. “ Managerial and regulatory functions ” are functions of a public official relating to the management of the staff of a government body or a public or municipal institution ( such as, for example, a nursery school ) or a branch thereof, such as employing staff, determining their duties and working procedures, and applying disciplinary measures. Such functions also include the taking of decisions having legal consequences, such as the granting of sick leave by a doctor or the administering of State examinations by a teacher (paragraph 4).", "151. “ Administrative and economic functions ” are functions of a State official relating to the use and disposal of property, funds and other assets of companies, institutions or military units and the taking of other economic decisions, such as decisions on the payment of salary or bonuses to staff or decisions relating to accounting and the oversight of financial operations (paragraph 5).", "III. RELEVANT COUNCIL OF EUROPE MATERIAL", "152. PACE Recommendation 1934 (2010) on child abuse in institutions ensuring full protection of the victims provides as follows:", "“4. With regard to the cases of child abuse which have recently been uncovered and continue to be uncovered, and the existing standards referring to sexual, physical and emotional abuse of children, the Assembly recommends that the Committee of Ministers ask member states to:", "4.1. ensure legislative protection, notably by:", "4.1.1. adopting legislation to explicitly prohibit all forms of violence against children: physical and mental violence, injury or abuse (including sexual abuse), neglect or negligent treatment, maltreatment or exploitation, including in childcare institutions, public and private educational institutions, correctional facilities and leisure associations, and thus criminalising any intentional abuse of a child made by a person in a recognised position of trust, authority or influence over the child;", "4.1.2. providing for ex officio prosecution in cases of child abuse in any context; ...", "4.1.4. ensuring that prescription periods for child abuse offences under civil and criminal law are coherent and appropriate in view of the gravity of the offences and, in any case, do not begin before the victim reaches the age of majority; ...", "4.1.8. defining as illegal and excluding certain practices with regard to the punishment of minors in institutions which are contrary to their dignity and rights ... ”", "153. PACE Resolution 1803 (2011) on Education against violence at school provides as follows:", "“17.1.1. penal and/or disciplinary standards should clearly prohibit all acts committed at school which can be qualified as “violent”, including physical or degrading punishment of pupils, violence against pupils by school staff, violence by third persons against pupils on school premises and violent behaviour by pupils against other pupils, school staff or school property ...", "17.1.3. all acts of violence should be investigated and recorded and, where an act is of a sufficiently serious nature, it should be reported to the competent law ‑ enforcement or disciplinary authorities; in this context, appropriate complaints mechanisms should be set up for pupils in education settings”.", "154. Recommendation CM/Rec (2009)10 of the Council of Europe Committee of Ministers on integrated national strategies for the protection of children from violence reads as follows:", "“ The state has an explicit obligation to secure children ’ s right to protection from all forms of violence, however mild. Appropriate legislative, administrative, social and educational measures should be taken to prohibit all violence against children at all times and in all settings and to render protection to all children within the state ’ s jurisdiction. Legal defences and authorisations for any form of violence, including for the purposes of correction, discipline or punishment, within or outside families, should be repealed. Prohibition should imperatively cover:", "... g. all forms of violence in school;", "h. all corporal punishment and all other cruel, inhuman or degrading treatment or punishment of children, both physical and psychological ... ”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "155. The applicant complained that he had been ill-treated by teachers of a public nursery school and that the investigation into his allegations of ill ‑ treatment had been ineffective. He relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "156. In their initial observations the Government pleaded non ‑ exhaustion of domestic remedies. They submitted that the criminal proceedings against the teachers of the nursery school who had allegedly ill ‑ treated the applicant were still pending and that the applicant ’ s complaints were premature.", "157. The Court observes that after this argument was raised the criminal proceedings were discontinued (see paragraphs 110 and 111 above). Accordingly, the Court does not find it necessary to examine the Government ’ s objection in respect of non ‑ exhaustion of domestic remedies as it has lost its rationale (see, for similar reasoning, Samoylov v. Russia, no. 64398/01, § 39, 2 October 2008, and Kopylov v. Russia, no. 3933/04, § 119, 29 July 2010).", "158. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "159. In their initial observations the Government submitted that it was impossible to answer the question of whether the applicant had been ill ‑ treated by the teachers because the criminal proceedings were still pending.", "160. In their further observations they referred to the cases of Costello ‑ Roberts v. the United Kingdom (25 March 1993, Series A no. 247 ‑ C ); Stork v. Germany ( no. 38033/02, § 103, 13 July 2006 ); Radio France and Others v. France ((dec.), no. 53984/00, § 26, ECHR 2003 ‑ X (extracts) ); and Islamic Republic of Iran Shipping Lines v. Turkey ( no. 40998/98, § 79, ECHR 2007 ‑ V ) and argued that the Russian State did not bear responsibility for the actions of teachers of nursery schools. Nursery schools were not “governmental organisations” because they did not exercise governmental powers. They did no more than look after children and provide basic pre ‑ school education. Moreover, the teachers in the present case had clearly abused their responsibilities. The applicant had concluded a friendly settlement agreement with them and had apparently been satisfied with its terms.", "161. The Government further submitted that the domestic authorities had conducted a thorough investigation into the applicant ’ s allegations of ill ‑ treatment. They had commissioned several expert examinations and had questioned the applicant, the suspects and more than thirty witnesses, including the staff of the nursery school and the parents of children who had attended the school with the applicant. The Government conceded that there had been unjustified delays in the investigation that could be attributed to the authorities. They argued in this connection that the St Petersburg and Kirovskiy District prosecutors had criticised the investigator for the delays and had ordered rectifying measures. The applicant had been granted the procedural status of victim and had had full access to the criminal case file. All his complaints had been examined and many of them allowed. In particular, following his complaints the refusals to open criminal proceedings had been annulled and further investigative measures had been ordered.", "162. The Government also submitted copies of nine judgments dating from 2013 and 2014 convicting teachers at public nursery and secondary schools for cruel treatment of minors and sentencing them to fines or correctional labour.", "163. According to the applicant, it had been established on the basis of evidence collected at the domestic level that the applicant ’ s nursery school teachers had locked him in the dark in the toilets, where he had previously seen rats, and told him that he would be eaten by rats; had made him stand in the lobby in his underwear and with his arms up for prolonged periods of time; and had once taped his mouth and hands with sellotape. They had, moreover, used force against him when giving him eye drops. The eye drops had been given without the consent of his parents and without any medical necessity therefor having first been established by a medical professional ( the applicant referred to Nevmerzhitsky v. Ukraine, no. 54825/00, ECHR 2005 ‑ II (extracts)). Indeed, neither the necessity of the treatment nor whether or not it would harm the applicant (given his state of health and medical history) had been assessed by a doctor or even a nurse. Given that the applicant had had a known allergy to antibiotics, his health had been put at unnecessary risk.", "164. The applicant submitted that his medical records showed that before November 2005 he had not suffered from any neurological disorder. In particular, even though he had been regularly examined by doctors, including the medical staff of the nursery school, his medical records dating from before November 2005 had not contained mention of nervous tics or any other neurological symptoms. The causal link between the ill-treatment and his current neurological disorder had been firmly established by medical experts. It followed that as a result of the treatment at the hands of the teachers of the nursery school to which he had been subjected from September until November 2005 the applicant had sustained serious damage to his health, from which he continued to suffer. Given his young age and vulnerability, and the long-lasting effects of the ill-treatment, that amounted to torture.", "165. The applicant further argued that the Russian State bore responsibility for the ill-treatment because it had been committed by teachers of a public nursery school. Relying on the regulations for pre ‑ school educational institutions (summarised in paragraphs 135 - 147 above), he submitted that all decisions concerning the opening, operation and closing of public nursery schools were taken by the State authorities. In particular, the State authorities opened nursery schools, appointed their directors and certified them as meeting the formal official requirements of curriculum. Nursery schools were regularly inspected for compliance with the law and were financed from the State budget. Places in nursery schools were allocated by the local education departments, which decided which nursery school each child would attend.", "166. The applicant also submitted that the State had not complied with its positive obligation to protect his health and well-being (he referred to Grzelak v. Poland, no. 7710/02, 15 June 2010, and Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012). Firstly, the domestic law did not provide for effective measures of deterrence against the ill-treatment of children (see O ’ Keeffe v. Ireland [GC], no. 35810/09, ECHR 2014 (extracts)). The applicant argued that the examples of case-law submitted by the Government showed that the offence of cruel treatment of minors was punished very leniently in Russia. He considered the sentences imposed in those cases to have been disproportionate to the suffering and damage caused to the children concerned. Secondly, even after the authorities had learned about the applicant ’ s ill-treatment by the teachers, they had not taken any measures to protect the other pupils at the nursery school from similar treatment. Nor had they informed the appropriate prosecutor ’ s office about the allegations of ill-treatment, even though they had had an obligation under the Minors Act to do so.", "167. Lastly, the applicant complained that the investigation into his allegations of ill-treatment had been ineffective. In particular, the authorities had opened criminal proceedings three years after receiving a formal complaint about ill-treatment from the applicant ’ s mother. As a result, the necessary investigative measures had been undertaken only after a very substantial delay, which had undermined their effectiveness. The investigation had lasted for almost ten years. The authorities had issued numerous decisions to discontinue the criminal proceedings; all of those decisions had been annulled as unlawful and three of them had been identically worded. Although the investigator ’ s superiors had ordered additional investigative measures, those measures had never been undertaken.", "2. The Court ’ s assessment", "(a) As regards whether the applicant was ill-treated", "168. As the Court has stated on many occasions, ill-treatment must attain a certain minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV ). Treatment has been held by the Court to be “inhuman” because, inter alia, it had been premeditated, had been applied for hours at a stretch and had caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it had been such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question of whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 of the Convention (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999 ‑ IX ).", "169. A measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist. Furthermore, the Court must ascertain that the procedural guarantees are complied with and that the manner in which the treatment is administered does not trespass the threshold of a minimum level of severity envisaged by the Court ’ s case law under Article 3 of the Convention (see Nevmerzhitsky, cited above, § 94, with further references).", "170. Further, allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII ).", "171. Turning now to the present case, the Court observes that the applicant ’ s description of the treatment to which he had allegedly been subjected at the hands of the staff of the nursery school is detailed and consistent. It is supported in part by the statements by the assistant teacher and by some of the parents of other pupils who confirmed the incident of 7 November 2005 and described some of the punishments used by the teachers against the applicant and some other pupils (see paragraphs 60 and 65 above). A panel of experts found on 14 January 2011 that the applicant had been subjected to a prolonged, psychologically traumatic experience at the nursery school between September and November 2005 that had resulted in a persistent neurological disorder ( see paragraph 75 above ), thereby confirming earlier findings to the same effect made by specialist doctors (see paragraphs 80 and 81 above). The domestic authorities found it established, on the basis of that evidence, that the teachers had subjected the applicant to battery and cruel treatment of minors but discontinued the criminal proceedings against them as time-barred (see paragraphs 83 and 111 above ). The authorities also found it established that the teachers had caused damage of medium severity to the applicant ’ s health but decided against prosecuting them because the investigation had failed to prove an intent to cause damage to health, such intent being an essential element of the offence of premeditated infliction of damage to health of medium severity (see paragraphs 106, 108 and 110 above). The Court finds the above elements sufficient to establish to the standard of proof required in Convention proceedings that the staff of the nursery school subjected the applicant to the treatment complained of.", "172. The Court will next examine whether the treatment complained of attained the minimum level of severity required to fall within the scope of Article 3 of the Convention. The applicant claimed that on several occasions he had been locked in the dark in the toilets and told that he would be eaten by rats, had been forced to stand in the lobby in his underwear and with his arms up for prolonged periods of time and on one occasion had had his mouth and hands taped with sellotape. He had been told that if he complained to his parents he would be subjected to further punishment, which must have exacerbated his feelings of fear and vulnerability. The teachers had moreover used physical force ( which had resulted in a bruise on his face ) to administer eye drops to the applicant without his parents ’ consent and without any medical prescription having first been obtained or indeed any medical necessity having first been established by a medical professional. The Court has regard to the applicant ’ s extremely young age at the time (four years). It also takes note of the fact that the applicant was subjected to such treatment for at least several weeks and that many years afterwards he continues to suffer from its consequences, in particular in the form of a post-traumatic neurological disorder (see paragraphs 124 - 128 above). Moreover, the above acts were perpetrated by teachers in a position of authority and control over the applicant and some of them were aimed at educating him by humiliating and debasing him. The Court considers that the cumulative effect of all the above- described acts of abuse rendered the treatment sufficiently serious as to be considered inhuman and degrading within the meaning of Article 3 of the Convention.", "(b) As regards whether the respondent State bore responsibility for the ill ‑ treatment", "173. To decide whether the respondent State bore responsibility for the applicant ’ s ill-treatment by the teachers at the public nursery school the Court must determine whether the teachers acted as private persons or as State agents and, in particular, whether the impugned acts were sufficiently connected to the performance of their professional duties.", "174. A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties. The Court has held that where the behaviour of a State agent is unlawful, the question of whether the impugned acts can be imputed to the State requires an assessment of the totality of the circumstances and consideration of the nature and circumstances of the conduct in question (see Reilly v. Ireland (dec.), no. 51083/09, § 53, 23 September 2014, with further references).", "175. The Court reiterates that whether a person is an agent of the State for the purposes of the Convention is defined on the basis of a multitude of factors, none of which is determinative on its own. The key criteria used to determine whether the State is responsible for the acts of a person, whether formally a public official or not, are as follows: manner of appointment, supervision and accountability, objectives, powers and functions of the person in question (see Kotov v. Russia [GC], no. 54522/00, §§ 92 et seq., 3 April 2012 ).", "176. As far as the State ’ s responsibility for the acts of school teachers is concerned, that issue was first examined in the cases of Campbell v. the United Kingdom and Cosans on behalf of Cosans v. the United Kingdom. In that case the European Commission of Human Rights found that the State bore responsibility for the administration of corporal punishment in State schools in Scotland. It held that where the State provided for and organised compulsory education in State schools, the State was accountable under the Convention for the acts of the school authorities, including teachers, and, in particular, for the administration of corporal punishment where it formed part of State-approved educational policy (see Campbell v. the United Kingdom, no. 7511/76, Commission (Plenary) decision of 15 December 1977, and Cosans on behalf of Cosans v. the United Kingdom, no. 7743/76, Commission (Plenary) decision of 15 December 1977).", "177. In another case the Court found that corporal punishment administered by the headmaster of an independent school also engaged State responsibility because a State could not absolve itself from its obligations to pupils under Articles 3 and 8 of the Convention by delegating its duties to private bodies or individuals (see Costello-Roberts, cited above, § § 25-28).", "178. In a more recent case the Court preferred to examine sexual abuse of a pupil by her teacher in a non-State school from the standpoint of the State ’ s positive obligation to protect children against abuse by private individuals, by providing an effective deterrence mechanism and by taking individual protective measures if the State knew or ought to have known about the risk of abuse (see O ’ Keeffe, cited above, § § 14 4 ‑ 52 ).", "179. In cases concerning negligent actions by school staff the Court also made its assessment as to the compliance of the State concerned with its positive obligations. In particular, it found that the State had a positive obligation under Article 2 of the Convention to safeguard the right to life and to protect the health and well-being of pupils, who were especially vulnerable and were under the exclusive control of the authorities (see Molie v. Romania (dec.), no. 13754/02, §§ 29 and 39-41, 1 September 2009, which concerned the death of a fifteen-year-old teenager following an accident on his school ’ s sports ground, and Ilbeyi Kemaloğlu and Meriye Kemaloğlu, cited above, § 35, which concerned the negligent failure on the part of a school headmaster to inform the shuttlebus service of the early dismissal of classes due to bad weather, which resulted in a seven ‑ year-old boy freezing to death as he was trying to return home alone ).", "180. Turning now to the circumstances of the present case, the Court notes that the applicant was ill-treated by teachers of a public nursery school on school grounds and during school hours. The Court observes at the outset that nursery schools in Russia are incorporated as separate legal entities in the form of public or municipal institutions. Such institutions have very strong institutional and economic links with the State or the municipality respectively ( compare Saliyev v. Russia, no. 35016/03, §§ 64-68, 21 October 2010). In particular, their real estate and equipment belong to the State or the municipality, they are bound by legal constraints attached to the use of their assets and property, and they receive State or municipal funding (see paragraphs 145 ‑ 146 above). It is also significant that by virtue of the law the State or the municipality respectively bears subsidiary liability for any debts and obligations of such institutions (see paragraph 147 above). The Court notes in this connection that it has already found on a number of occasions that the debts of Russian public and municipal institutions are to be regarded as State debts (see, for example, Yavorivskaya v. Russia, no. 34687/02, § 25, 21 July 2005; Gerasimova v. Russia (dec.) no. 24669/02, 16 September 2004; and the relevant judgment of Gerasimova v. Russia, no. 24669/02, § 17, 13 October 2005; and Pogulyayev v. Russia, no. 34150/04, § 19, 3 April 2008 – all three cases concerned the debts of public or municipal institutions: respectively a municipal hospital, a municipal social security service and a public institution of higher education ).", "181. Further, nursery schools are undoubtedly set up to provide the basic public service of general interest of caring for and educating young children. Although nursery schools enjoy a certain freedom in determining their educational programmes, they must apply educational standards established by the State and have a set of official curricula to choose from. They are licensed, certified as meeting formal official requirements of curriculum, and are regularly assessed by the authorities (see paragraph 139 - 140 above). The Court also notes that the director of a nursery school is appointed by State or municipal authorities and is responsible to them for the operation and management of the nursery school (see paragraph 144 above). Most importantly within the context of the present case, the director is responsible for the health and well-being of the nursery school ’ s pupils (see paragraphs 136 and 141 above). The director also employs the teachers and has disciplinary authority over them.", "182. To sum up, a public or municipal nursery school provides a public service and has very strong institutional and economic links with the State, and its educational and economic independence is considerably limited by State regulation and regular State inspection. Under Russian law a nursery school ’ s liability, and through it the State ’ s liability, is engaged by the acts or omissions of teachers committed while performing their functions. The Court considers that the above factors are sufficient to find that, while performing their functions, teachers of public or municipal nursery schools may be regarded as State agents.", "183. In the present case the applicant was ill-treated while in the exclusive custody of a public nursery school which, under State supervision, fulfilled the public service of general interest of caring for and educating young children in the spirit of respect and protecting their health and well ‑ being. The applicant was ill-treated during school hours by teachers while fulfilling their duty of care for him. The impugned acts were connected to their role as teachers. Consequently, the State bore direct responsibility for their wrongful acts against the applicant.", "184. Accordingly, the Court considers that the State is responsible under Article 3 of the Convention on account of the inhuman and degrading treatment of the applicant by the nursery school teachers and that there has been a violation of the substantive aspect of that provision.", "( c ) As regards whether the respondent State complied with its procedural obligation", "185. The Court reiterates that irrespective of whether treatment contrary to Article 3 has been inflicted through the involvement of State agents or by private individuals, the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which seriously undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context. In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements, the length of time taken for the initial investigation and the unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see C.A.S. and C.S. v. Romania, no. 26692/05, § 70, 20 March 2012, and S.M. v. Russia, no. 75863/11, § 68, 22 October 2015 ). The victim should be able to participate effectively in the investigation in one form or another, in particular, by having access to the materials of the investigation (see Buntov v. Russia, no. 27026/10, § 125, 5 June 2012, with further references).", "186. After examining the particulars of the Russian prosecution system ‑ which comprises a “pre-investigation inquiry” followed by an investigation proper – the Court found in Lyapin v. Russia that in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it was incumbent on the authorities to open a criminal case and conduct an investigation, a “pre-investigation inquiry” alone not being capable of meeting the requirements of effective investigation under Article 3 of the Convention. It held that the mere fact of the investigating authority ’ s refusal to open a criminal investigation into credible allegations of ill ‑ treatment was indicative of the State ’ s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 133-40, 2 4 July 2014). In the subsequent case of Razzakov v. Russia the Court further held that a delay in commencing a criminal investigation could not but have a significant adverse impact on its effectiveness, considerably undermining the investigating authority ’ s ability to secure the evidence concerning the alleged ill ‑ treatment (see Razzakov v. Russia, no. 57519/09, § 61, 5 February 2015; see also Bataliny v. Russia, no. 10060/07, § 103, 2 3 July 2015; Manzhos v. Russia, no. 64752/09, § 40, 24 May 2016; and Zakharin and Others v. Russia, no. 22458/04, § 68, 1 2 November 2015).", "187. Turning to the present case, the Court notes that the applicant ’ s parents promptly complained about his ill-treatment by the staff of the nursery school, first to the local department of education on 16 November 2005 (see paragraph 13 above), and then to the police on 23 November 2005 (see paragraph 18 above). The local department of education, however, failed in its statutory obligation to inform the appropriate prosecutor ’ s office of the applicant ’ s allegations of ill-treatment, that failure being acknowledged by the district prosecutor (see paragraphs 25 and 134 above). The police did not take any action in respect of the applicant ’ s father ’ s complaint either. It was not until 27 October 2006, almost a year later and after a new complaint had been lodged by the applicant ’ s parents, that the appropriate prosecutor ’ s office opened a pre-investigation inquiry (see paragraph 25 above).", "188. Over the following two years and three months the prosecutor ’ s office and the police department issued eight decisions refusing to open a criminal investigation, all of which were cancelled on the ground that the pre-investigation inquiry had been incomplete. It is significant that very few investigative measures were carried out within the framework of the pre ‑ investigation inquiry during that period and that there were lengthy periods of inactivity between them: in particular, the investigator questioned the applicant and several witnesses in the first week of November 2006, a witness in January 2007, several witnesses in February 2008 and a witness in August 2008. Ultimately, the police department decided to open a criminal investigation on 19 January 2009, that is more than three years after the first complaint about ill-treatment. That delay could not but have had a significant adverse impact on the effectiveness of the investigation.", "189. The most serious consequence resulting from the three-year delay in opening a criminal investigation was that the prosecution of the teachers became time-barred under domestic law which provides that the statute of limitation stops running when the conviction enters into force (see paragraph 129 above). Indeed, by the time the investigation was opened, prosecution for the offences under Articles 116 and 156 of the Criminal Code (battery or other violent acts causing physical pain and cruel treatment of minors) had already become time - barred. The investigation in respect of those offences was therefore discontinued, even though the domestic authorities found it established that the teachers had subjected the applicant to violent acts causing physical pain and cruel treatment (see paragraphs 45, 83 and 111 above). The Court has already found in a number of cases where the authorities ’ failure to show diligence resulted in the prosecution becoming time-barred that the effectiveness of the investigation was irreparably damaged and the purpose of effective protection against acts of ill-treatment was frustrated (see, among many other authorities, Beganović v. Croatia, no. 46423/06, § 85, 25 June 2009; Nikiforov v. Russia, no. 42837/04, § 54, 1 July 2010; Ablyazov v. Russia, no. 22867/05, §§ 57 and 59, 30 October 2012; Yazıcı and Others v. Turkey (no. 2), no. 45046/05, § 27, 23 April 2013; and İzci v. Turkey, no. 42606/05, § 72, 23 July 2013). The Court cannot but find that in the present case too the expiry of the limitation period irreparably damaged the effectiveness of the investigation.", "190. It is true that the authorities, in an effort to find another applicable provision, attempted to prosecute the teachers under Article 112 of the Criminal Code (premeditated infliction of damage to health of medium severity), for which the limitation period was longer. That attempt turned out to be futile because, in contrast to the offence of cruel treatment of minors, an essential element of that offence was the intent to cause damage to health. As the prosecuting authorities were unable to prove such intent, the investigation was ultimately discontinued for lack of evidence (see paragraphs 106, 108 and 110 above). It is also noteworthy that the investigation under Article 112 was remarkably slow, as acknowledged by the Government (see paragraphs 114 and 161 above), and lasted for almost six years, until October 2014, even though prosecution for that offence had also become time-barred by the end of 2011.", "191. Another important consequence of the considerable delay in opening a criminal investigation was that the passage of time affected the investigating authority ’ s ability to secure evidence concerning the alleged ill ‑ treatment. In particular, it undermined the reliability of the applicant ’ s testimony, thereby weakening the evidentiary basis for the prosecution. The experts found in April 2009 and then again in January 2011 that, given the applicant ’ s young age at the material time and the time that had elapsed since the alleged ill-treatment, he could no longer remember the events accurately and his statements could not be relied upon in the criminal proceedings. The delay in opening an investigation therefore resulted in the applicant ’ s statements being discarded as unreliable evidence (see, for example, paragraphs 83 and 106 above).", "192. Another serious defect of the investigation was the applicant ’ s parents ’ limited access to the case file and the repeated failure of the investigating authorities to notify them promptly about important procedural decisions or to provide them with copies of relevant documents from the case file (see, for example, paragraphs 85, 96, 118, 119 and 121 above). As a result, the applicant ’ s parents were unable to contest the relevant actions of the investigative authorities in court. The applicant ’ s parents ’ inability to participate effectively in the investigation also undermined its effectiveness.", "193. Lastly, the Court observes that the investigator refused, without any valid reason, the applicant ’ s mother ’ s request to include in the criminal case file relevant material from the civil case file (see paragraph 72 above). It considers that this decision could also have undermined the effectiveness of the investigation.", "194. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the applicant ’ s allegations of ill-treatment. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "195. The applicant complained that the investigation into his allegations of ill-treatment had been ineffective, contrary to Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "196. The Court observes that this complaint concerns the same issues as those examined in paragraphs 185 - 194 above under the procedural limb of Article 3 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusion above under Article 3 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "197. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "198. The applicant asked the Court to afford him redress for the non ‑ pecuniary damage sustained by him as a result of the ill-treatment, the indifference shown by the authorities towards him and the ineffective investigation. He left the amount to the determination of the Court.", "199. The applicant also claimed the following amounts in respect of pecuniary damage:", "– the applicant claimed 52,624 Russian roubles (RUB ) ( about 920 euros (EUR)) for the medical expenses he had incurred and submitted the relevant bills and invoices;", "– he also claimed RUB 576,288 (about EUR 10,000) for future medical expenses for treatment and rehabilitation. The cost of the future medical treatment was calculated taking into account the fact that at the moment of the submission of the just satisfaction claims a month of the treatment prescribed to the applicant cost RUB 5,819 ( about EUR 100). The applicant also stated that he had not followed any medical rehabilitation courses before 2014 because he had not been able to afford a rehabilitation course, which cost RUB 54,740 a year ( about EUR 950). In 2014 a charitable organisation had covered the costs of his medical rehabilitation. However, he could not expect it to pay for such courses for years to come;", "– lastly, the applicant claimed RUB 5,940,000 (about EUR 103,500) for the loss of income suffered by his parents, who had had to resign from their jobs to take care of him.", "200. The Government argued that they were not liable to compensate him for damage to his health caused by private persons. In any event, the applicant had already signed a friendly settlement agreement in respect of his claims for pecuniary and non-pecuniary damage (see paragraph 23 above).", "1. Pecuniary damage", "201. The Court notes at the outset that the applicant ’ s mother indeed signed a friendly settlement agreement with the nursery school. However, the amount paid pursuant to that agreement only covered the medical expenses incurred between November 2005 and June 2006. The applicant did not receive any compensation for the medical expenses incurred after June 2006 or any other related expenses.", "202. The Court further notes that the applicant still suffers from a neurological disorder caused by treatment contrary to Article 3 of the Convention, for which the respondent State was found to be responsible. There is therefore a causal link between the violation found and the applicant ’ s past and future medical expenses. By contrast, given that the applicant did not submit any medical documents confirming that he needed round-the-clock supervision by his parents, necessitating their resignation from their jobs, the Court does not discern any causal link between the violation found and the parents ’ loss of income.", "203. The Court further reiterates that a precise calculation of the sums necessary to make complete reparation ( restitutio in integrum ) in respect of the pecuniary losses suffered by an applicant may be prevented by the inherently uncertain character of the damage flowing from the violation. An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved the more uncertain the link between the breach and the damage becomes. The question to be decided in such cases is the level of just satisfaction, in respect of either past or future pecuniary loss, which it is necessary to award to an applicant, and is to be determined by the Court at its discretion, having regard to what is equitable (see Mikheyev v. Russia, no. 77617/01, § 158, 26 January 2006, and Denis Vasilyev v. Russia, no. 32704/04, § 166, 17 December 2009, with further references).", "204. Bearing in mind the uncertainties of the applicant ’ s situation and the fact that he has suffered, and will continue to suffer, material losses as a result of the need for continuous medical treatment, the Court considers it appropriate, in the present case, to make an award in respect of pecuniary damage based on its own assessment of the situation (see Mikheyev, cited above, § 162, and Denis Vasilyev, cited above, § 169 ). Given the long ‑ lasting nature of the applicant ’ s condition and the need for specialised and continuous medical treatment, and taking into account the fact that the applicant ’ s mother has already received compensation for the medical expenses incurred before June 2006, the Court – basing its estimate for future expenses on the amount of the expenses he had incurred in the past (see paragraph 199 above) – awards him EUR 3,000 in respect of pecuniary damage, plus any tax that may be chargeable on this amount.", "2. Non-pecuniary damage", "205. The Court reiterates its finding that the Russian authorities were responsible for the applicant ’ s ill-treatment by the teachers of a public nursery school and that the investigation into his allegations of ill-treatment was ineffective. Taking into account the applicant ’ s extremely young age at the material time and the long-lasting consequences of the ill-treatment on his health, the Court awards the applicant EUR 2 5 ,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "206. Submitting the relevant bills, invoices, legal fee agreements and time-sheets, the applicant claimed RUB 212,044 (about EUR 3,695) for legal fees and postal and transport expenses incurred in the domestic proceedings; EUR 12,900 as compensation to the applicant ’ s mother, who had acted as his legal representative before the domestic authorities; and RUB 30,962 (EUR 540) and EUR 25,986 for the costs and expenses incurred before the Court, covering postal expenses and legal fees respectively.", "207. The Government submitted that the legal fees incurred before the Court had not been yet paid by the applicant. Moreover, the applicant had not proved that all the expenses had been necessary.", "208. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000, covering costs under all heads.", "C. Default interest", "209. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Events leading up to the intervention of the authorities in the first applicant's family life", "11. The first applicant met N.A., the father of her children, in Belgium while he was in prison. He had been sentenced on 17 February 1984 to a life term of forced labour for offences that included robbery and attempted murder. He had several previous convictions for offences including theft, indecent exposure in the presence of a child aged under 15 and rape of a minor aged between 10 and 14 (for the latter two offences he was given a pardon and his sentence was reduced). The sentence of forced labour for life was subsequently reduced to twenty-seven years' forced labour following a pardon in 1991.", "12. The elder child was born while N.A. was still in prison. Subsequently, the first applicant and N.A. married. On an unspecified date in 1993 N.A. failed to return to the prison and has remained on the Belgian authorities' wanted list ever since. In fact, N.A. and the first applicant had travelled to Italy with their child.", "13. In February 1994 the younger son was born. However, the atmosphere in the family had begun to deteriorate. Arguments between the parents became worse and ended in outbursts of violence against the first applicant, who subsequently lodged a complaint against her husband (the Court has not been informed of the outcome of those proceedings).", "14. In the meantime, M.L., a social worker employed by social services in the Florence region, had built up a good relationship with the first applicant's family. He was a former drug addict and was responsible for counselling a number of children from problem families who had been taken into care. He offered to look after the first applicant's elder son without payment at weekends. She accepted, since both she and her husband were working, she had to look after the baby, and social services did not provide assistance with children over weekends without charge.", "15. Shortly afterwards the elder son started to have health problems. The first applicant took him to hospital several times but the problems were initially attributed to an inadequate diet.", "16. In November 1996 the first applicant said that she did not want M.L. to visit her son any more. He then started to see the child at the first applicant's home and only in the presence of his parents. The first applicant sought to stop him seeing her son, but that had psychological repercussions on the boy, who tried to see M.L. without his parents' knowledge.", "17. A short while later the boy informed a friend of the family about “unusual games” in which M.L. had persuaded him to participate on several occasions. On learning of their son's admission, the first applicant and her husband lodged a formal complaint with the police on 2 February 1997.", "18. An investigation was started. The investigators rapidly discovered a number of factors showing M.L. to be at the centre of a paedophile ring. In particular, he was accused of having indecently assaulted several children since 1986 by taking advantage of his connections with social services and his role as a social worker (some of his presumed victims had been placed in homes and one even entrusted into his care by the Palermo Youth Court). M.L. was also accused of selling photographs taken during his sexual encounters with children, including the first applicant's elder son, and of running a drug-trafficking ring.", "19. On 6 June 1997 the investigating judge ordered, inter alia, M.L.'s arrest. The judge noted that M.L., a former drug addict, had feigned a desire to reform and thereby succeeded in gaining access to public institutions responsible for the protection of children and had taken advantage of the children that both individuals and the public authorities had entrusted into his care. He was convicted at the end of the proceedings at first instance.", "20. Meanwhile, social services began to examine the situation of the first applicant's family more closely. In a report of 30 January 1997, the case worker, Mrs S.G., stated that there was a serious conflict between the parents (the first applicant had complained about the situation to various authorities the previous summer) and difficulties in securing their effective cooperation. In a second report of 7 February 1997 a deterioration in the situation was noted. Furthermore, Mrs S.G. said that the younger child was not attending nursery school regularly because of minor ailments, while the elder child was described by his teachers as an intelligent and very active child.", "21. On 25 February 1997 the Florence Youth Court ordered that the children and their mother should stay in a home designated by social services. It referred in particular to the complaint concerning the sexual abuse allegedly suffered by the first applicant's elder son.", "22. In a report of 12 March 1997, social services indicated that it was difficult to find a home ready to accommodate both the children and their mother. Moreover, the first applicant had refused to be separated from her children and the elder boy had said that he wanted to stay with her. All three were provisionally accommodated in a hostel ran by Caritas, a charity. On the first applicant's initiative, the children began to attend school again. Social services also described the first applicant in that report as being unstable and fragile.", "23. In March 1997 social services noted that it was impossible for Caritas to continue to provide a home for the first applicant. They also said that she seemed incapable of following a suitable programme for the protection of the children and that there were doubts as to her effective capacity to look after them. In addition, she had continued to see a man both on and off the premises and indicated that she wanted to return home, as her husband was no longer violent towards her.", "24. A neuropsychiatrist employed by the local health authority stated in a report of 9 June 1997 that the first applicant appeared to be suffering from personality disorders. The relevant passages from the report read as follows:", "“... Mrs ... appears incapable of gauging reality and adapting her behaviour appropriately. She seems very confused about how to recount matters and about irrational acts. She is incapable of distinguishing between what is good and what is bad for the child and therefore incapable of protecting him; she alternates between times when she appears very childlike, in accordance with the idealised image of the mother, and times when she places G. in an adult role with seductive and subtly perverse traits.", "I can conclude that Mrs ... presents a serious personality disorder that at times affects the sphere of knowledge and ideation and at others the emotional and relational sphere, and that the hypothesis of a clinical 'borderline case' can be advanced.", "As matters stand, Mrs ... shows that she is not capable of managing the extremely complex family situation and G.'s particularly sensitive situation, still less of creating a sufficiently positive environment for him.”", "25. It was noted in a school report of 10 June 1997 that the elder boy was becoming increasingly agitated and that the first applicant's attitude to both her son and school staff had tended to be highly erratic: at times aggressive, at others attentive. According to the school, it had proved very difficult to establish a constructive dialogue with her. A report by the social worker the following day confirmed the elder boy's increasing difficulties.", "26. On 22 July 1997 the Youth Court ordered the elder son's placement in another home. The parents challenged that decision on 30 July 1997. On 8 August 1997 the Youth Court stipulated that the placement would last three months and was intended to provide an opportunity for the child's behaviour to be monitored. However, the boy manifested his dislike of that solution and ran away from the home, returning to his parents. Social services nonetheless insisted that he should remain in the home.", "27. It was stressed in a private medical report lodged at the time that the boy, who was in terror of the priest who ran the home, needed a peaceful environment rather than to be surrounded by other children whose past was just as tragic as his own.", "28. The younger child was transferred to another home in the meantime.", "29. On 8 September 1997, at the end of a meeting attended by, inter alia, social workers and specialists who had been supervising the first applicant and her children, the representatives of the relevant social-services department concluded that the children needed to be separated from their natural family and recommended their placement in a community, “ Il Forteto ”, which was organised as an agricultural cooperative.", "30. On 9 September 1997 the Florence Youth Court ordered the two children's placement at “ Il Forteto ”, pursuant to Article 333 of the Civil Code ( Condotta del genitore pregiudizievole ai figli – “parental behaviour harmful to the children”), suspended the father's and the mother's parental rights pursuant to Article 330 of the Civil Code ( Decadenza dalla potestà sui figli – “lapse of parental rights”), ordered that if the parents refused to comply, the decision was to be enforced with police assistance, and granted the parents the right to visit the younger son only, such visits to take place on the cooperative's premises and in the presence of members of its staff. The Youth Court observed, inter alia, that the parents had been uncooperative and had on one occasion taken the elder child from the home where he had previously been staying despite the protests of his carers. It also criticised the parents for having exposed the elder boy to a tragic situation – of which he had been the victim – over a lengthy period, without exercising the supervision which was expected of them as parents, or being alert to the alarm signals given by the child. Conversely, those signals had not escaped the attention of school staff, who had tried in vain to establish a dialogue with the family. Lastly, the Youth Court ordered social services to monitor the children's situation closely and to produce a proposal for the children's rehabilitation, based on what was observed.", "B. Matters relating the “ Il Forteto ” community", "31. The case file reveals that at the end of the 1970s the cooperative was the subject matter of a criminal investigation into acts of bestiality and paedophilia allegedly committed there by three of its founder members. Two of them, L.R.F. and L.G., were arrested and later released, but nevertheless committed for trial.", "32. On 3 January 1985 the Florence Court of Appeal convicted L.R.F. and L.G. of, inter alia, the ill-treatment and sexual abuse of persons who had stayed in the home (they were acquitted on the other counts as there was insufficient evidence). The Court of Appeal considered it appropriate to examine the evidence against the accused in the light of the situation at “ Il Forteto ”: leaders at the home sought to sever relations between the children in their care and their natural parents, while homosexuality was rife. Relying, inter alia, on the evidence of witnesses and partial confessions by the accused, the Court of Appeal found the case proved, in particular, on the following counts:", "( i ) both L.R.F. and L.G. were guilty of ill-treating a handicapped 18-year-old girl who had stayed at the home for a few days by, inter alia, hitting her several times a day, insulting her in the presence of others, preventing her from communicating with the outside world and mocking her physical appearance. In addition, L.R.F. had spat in her face and, as an act of contempt, exposed himself to her.", "(ii) L.R.F. was also found guilty of having sexually abused ( atti di libidine violenti ) two mentally handicapped males, on one occasion in the presence of a 13-year-old minor.", "33. L.R.F. was sentenced to two years' imprisonment and L.G. to ten months' imprisonment. They were nonetheless granted a stay of execution and the order banning them from holding public office was quashed. They also received an amnesty for an offence of wrongfully holding themselves out ( usurpazione di titolo ) as psychologists holding diplomas from the universities of Berne and Zürich.", "34. Their appeal to the Court of Cassation was dismissed on 8 May 1985.", "35. Both men remain on the staff working at the cooperative. In addition, one of them, L.R.F., was present during the aforementioned contact visit on 8 September 1997, which ended with the relevant social services department recommending to the Florence Youth Court that the first applicant's children be placed at “ Il Forteto ”. According to the most recent information available to the Court, L.R.F. is currently the president of that community.", "36. The case file and, in particular, one of the books published on “ Il Forteto ” ( Ritratti di famiglia, Florence, 1997), revealed that some of the people working in the community, or who have been staying there, come from problem families and have suffered violence at the hands of paedophiles.", "37. In support of her allegations, the first applicant has also produced various statements in writing, beginning with statements by three people who have given their identity and whose respective niece, sister and daughter stayed, for various reasons, at the community in question. The relevant extracts are set out below.", "38. Statement of the first witness:", "“... the little girl recognised me and came towards me; a man standing next to her, came towards us and told us to leave ... I went to'Il Forteto'on another occasion in 1997 ... I tried a number of times but always received negative replies ...”", "39. Statement of the second witness:", "“... the girls who went to'Il Forteto'were malnourished and demoralised. My sister was one of them. When she returned to my mother's house she didn't speak and couldn't express her ideas coherently; my mother and I had to feed her with a teaspoon for several months ...”", "40. Statement of the third witness:", "“... in May 1991, late in the evening in the presence of other members of the family, she was so frightened that she could not even manage to explain and kept repeating that she did not want to go back to'Il Forteto '. That made us aware that terrible things are going on at'Il Forteto '. She had to go back because they were blackmailing her ... She had in the past been hit by ... G. ... L. ... for refusing to participate in certain acts of violence which she did not want ... I am prepared to give evidence before the European Court.”", "41. The applicants have also produced two other witness statements in writing. Both are signed.", "42. The first is by a municipal councillor from a village in the region. She affirmed that the children's guardian, whom she already knew and to whom she had referred for information on the case, had advised her not to get involved. Furthermore, according to her statement, L.R.F. had invited her to visit the community after she had expressed doubts about it in public at a ceremony for the presentation of one of the books published on the community. Despite her repeatedly expressed wish to meet the children, she was consistently denied an opportunity to do so, various reasons being given.", "43. The second statement was made by two officially assigned experts working for the Florence Youth Court who had had a role in the case concerning the first applicant's children. According to their statement, the two experts – one a neurologist, the other a psychiatrist, and both directors of a family-therapy medical centre in Florence – had asked “ Il Forteto ” to allow trainees from the centre to work at the community or at least to visit it. On each occasion, their requests were turned down for reasons which the experts found “absurd”, such as, for example, the fact that the community was not a public institution. A student from the centre, attending a training course recognised by the Tuscany Region in 1996/97, had nonetheless managed to gain access to the community during his studies. During his visit he learnt from one of the leaders of the home that the families looking after the children were not necessarily the ones formally named in the court order.", "44. The applicants also referred to passages taken from one of the books published on the community ( Il Forteto, Florence, 1998).", "45. They quote, inter alia, the following passages relating to the vexed issue of the presence of certain adults at the home:", "“Therefore, they each decided to share a mutually enriching experience with the others which would assuage the affective deficiency which had been their driving force” (p. 94). “Thus each member found and continues to find, through this experience, a sense of belonging, cohesion and love which elsewhere, in his family of origin, was lacking” (p. 95)", "46. The applicants also quote the following passage, which refers to the authorities implicated in the criminal proceedings against some of the leaders of the community:", "“Many years have passed and the case has become clearer as the evidence of the machinations against them, which even today is kept in the villa, has been gathered. Even in that regard they display a Christian attitude which, frankly, I envy. Today, they could easily bring criminal proceedings or an action in damages against certain judicial officers, but do not do so ... At the time, the behaviour of the judicial authorities was schizophrenic. While making accusations against'Il Forteto'via the Florence Public Prosecutor's Office, they continued to place children in the care of that structure through the Youth Court. S ... was put into R ... at precisely that time” (p. 31)", "C. Suspension of contact between the first applicant and her children until the decision of the Florence Youth Court of 22 December 1998", "47. Within the community, the children were put into the care of Mr G.C. and Mrs M.G., the couple designated in the court order of 9 September 1997. The applicants allege that by October 1997 the first applicant's elder son, despite being of school age, had still not started school. In fact, he was enrolled on 23 October 1997 and began lessons on 4 November 1997.", "48. On 10 and 14 October 1997 respectively the children's guardian and the public prosecutor applied to the Court for an order temporarily suspending contact with the younger boy, too.", "49. On 4 November 1997 the first applicant complained to Judge S. of the Youth Court that since that court's decision of 9 September 1997 she had been given no further opportunity to see her children.", "50. On the same day the psychology unit at the local health authority ( Unità sanitaria locale ) certified that the first applicant was in good psychological health.", "51. On 18 November 1997 the Youth Court noted that contact between the parents and the younger son had not yet begun. In view of the pending applications by the guardian and the public prosecutor, it ordered the appropriate child- neuropsychiatric centre to verify whether the time was ripe for a resumption of parental contact.", "52. On 25 November 1997 the first applicant made representations to the guardianship judge requesting execution of the Youth Court's decision concerning contact with the younger son.", "53. Other attempts by the first applicant to see her younger son by going directly to “ Il Forteto ” were unsuccessful. Subsequently, there was a deterioration in relations between the first applicant and certain leaders of the community responsible for her children. The latter lodged a complaint against her accusing her of having threatened and assaulted them verbally and physically. They alleged that, on at least one occasion, she had done so with the assistance of her former husband, whom, they said, she continued to see (a letter relating the incidents was sent on 7 January 1998 to the public prosecutor and to the Youth Court; it bore the signature of L.G.).", "54. On 3 December 1997 the first applicant requested the Youth Court to rescind its decision of 9 September 1997 because of a change of circumstances in the interim, she and her husband having just separated. She added that the realities of children's homes were often “ambiguous”.", "55. On 7 December 1997 the first applicant made a further complaint to the Youth Court. She said that “ Il Forteto ” had repeatedly refused to allow her to see her younger son and had disregarded the court's decisions. She requested it to obtain the information needed to establish whether the community was really defending the children's interests, not just private ones.", "56. On 15 December 1997 the elder child was questioned by the public prosecutor's office. According to the record, the interview took place in the presence of the foster parents, Mr G.C. and Mrs M.C., though one of them (probably Mrs M.C.) signed the record using L.G.'s surname (see paragraph 114 below).", "57. On 15 January 1998 the first applicant was served with notice to attend a hearing before Judge S. of the Youth Court. At that hearing, she informed the judge that certain leaders of “ Il Forteto ” had been prosecuted in the past for abuse and violence against people who had stayed in the community.", "58. Following the various steps taken by the first applicant, the Florence Youth Court noted in an order of 6 March 1998, firstly, that the initial examinations conducted by the child- neuropsychiatric centre showed that, while displaying open-mindedness, the younger child had at the same time denied his past and his parents. In particular, he had referred to his mother only on repeated prompting by staff from the centre. Observing that the child appeared to be in the process of coming to terms with a particularly difficult first phase in his past, the Youth Court considered it necessary for contact between the first applicant and her younger son to be preceded by preparatory sessions for both mother and child. The child was to be counselled by the social services department already responsible for his supervision, and the mother by the relevant psychology department. The court also ruled that contact could start once the preparatory work had been completed and the child had shown himself ready to resume relations with his mother. Lastly, it said that the contact was to be supervised by the social workers concerned, while the relevant authorities were to inform it when contact could begin and to advise on progress.", "59. On 30 March 1998 the first applicant informed the Belgian embassy in Italy of the danger presented by the community. She requested the intervention of the Belgian authorities.", "60. On 6 April 1998 the younger child was examined by a specialist. He was accompanied by Mr M.S. and Mrs M.G., as foster parents.", "61. Subsequently, the relevant social services department held preparatory sessions with the first applicant on 21 April, 19 May and 9 June 1998. The children attended several sessions with a neuropsychiatrist and were also required to take part in a number of logopaediatric sessions.", "62. There was a meeting of all the services concerned on 6 June 1998, at the end of which two initial contact visits between the first applicant and the younger child, each lasting an hour, were arranged for 8 and 14 July 1998. The visits were to take place in the presence of various specialists, including a social worker from the area in which “ Il Forteto ” was located, who was to accompany the child. The specialists were to observe the visits from behind a two-way mirror.", "63. The first applicant had requested that her lawyer also be allowed to attend the visits and informed the Youth Court of that request. However, it was turned down on the ground that the presence of undesignated persons was not envisaged and, in addition, the therapeutic nature of the arrangements made it necessary to restrict attendance to the specialists from public bodies.", "64. On 22 June 1998, however, the first applicant said that she was unwilling to see the younger child without his brother in view of the probable suffering that the elder child would endure on learning that only his younger brother was to be allowed to meet their mother. On 25 June 1998, Mrs C.C., a psychologist from social services, invited the first applicant to inform her whether she intended to stand by that decision and warned her that, unless she received a response, the contact visit would be cancelled. At that point, the first applicant changed her mind.", "65. On 29 June 1998 L.R.F., one of the two leaders of “ Il Forteto ” convicted in 1985, sent a letter to the deputy public prosecutor at the Florence Court of First Instance concerning the first applicant's children. In the letter, he stated, inter alia :", "“... we do not want the children to nurture absences which could develop into internal fantasies and consequently bring contact with their parents to an abrupt and definitive end, but we consider it very important to put off such contact to a more suitable moment and to give the children sufficient time to absorb the negative and guilt-ridden images which their parents evoke ...”", "66. On 2 July 1998 the deputy public prosecutor informed the Florence Youth Court that an investigation had been opened concerning the first applicant and her former husband, who were suspected of abusing the children. The deputy public prosecutor also drew the Youth Court's attention to the fact that the scheduled contact visits between the first applicant and the younger son, which he said he was aware of, could jeopardise the investigation as an expert examination due to continue throughout September 1998 was under way in order to determine whether that child presented symptoms of sexual abuse. He indicated that during recent interviews with a specialist, the child had begun to reveal matters of relevance to the accusation against his father, and added that he could not exclude a like accusation subsequently being made against the mother.", "67. On 6 July 1998 the Youth Court decided provisionally to suspend the contact visits scheduled for 8 and 14 July, pending the outcome of the new investigation. It considered that the investigation, in connection with which an expert psychological examination of the younger son had been ordered, might be hindered by the visits.", "68. On 14 July 1998 the elder son was questioned. Mr G.C. and Mrs M.C. were once again present as the “foster parents”.", "69. In a note of 31 October 1998, the public prosecutor repeated that it was necessary for the children to be heard in connection with the investigation and desirable for them to be kept safe from any intimidating behaviour on the part of the parents that might undermine their recently recovered composure and compromise the results of future examinations. He stated in his memorandum that the children would be questioned as soon as possible regarding the matters disclosed in the psychologist's report, which matters would be communicated to the Youth Court once the confidentiality obligations that attached to the proceedings under way had been lifted.", "70. In addition, R.L., a neuropsychiatrist responsible for assessing the children, stated in a report of 11 November 1998 that a programme designed to help them renew contact with their parents was being prepared with the foster parents.", "D. Action taken by the second applicant", "71. On 14 October 1997 the second applicant lodged an initial application for an order granting her parental rights over the children.", "72. On 4 March 1998 she requested permission to see the children at least twice weekly.", "73. On 15 May 1998 she made a further application to the Youth Court for permission to see the children. She said that she had not seen them since June 1997 and had learnt of the events that had resulted in the Youth Court placing the children in a community indirectly ( de relato ).", "74. At the end of the hearing on 12 June 1998, which the second applicant attended, the Florence Youth Court instructed the relevant child-psychology and neuropsychiatry departments to provide preparatory counselling to the children and their grandmother before contact began. The Youth Court noted that the latter had shown a real interest in renewing relations with the children and had indicated a willingness to follow the programme of counselling to be organised by the court-appointed services.", "75. Subsequently, the second applicant nonetheless appealed against that decision, her principal claim being to parental rights over the children. In the alternative, she asked to be allowed to see them at least twice weekly without prior counselling, since she was in any event prevented from attending such a course as she could not remain in Italy. In support of her application she contended, inter alia, that the application she had lodged in October 1997 had still not been examined and that she had looked after the elder boy in the past.", "76. On 6 July 1998 the Youth Court dismissed her appeal. It stated, in particular, that it failed to comprehend why the second applicant could not remain in Italy to attend the preparatory course arranged by the specialists, since she had asked to see the children at least twice weekly, which would inevitably mean her travelling to Italy on a regular basis. The Youth Court also considered that counselling was essential in view of the gravity of the events, which had seriously marked the children, and of the need to avoid jeopardising the delicate task of rehabilitation on which the specialists had embarked. Lastly, removing the children from Italy might hinder progress in the pending criminal investigation into offences that may have been committed by the parents.", "77. Meanwhile, on 19 June 1998 the second applicant had requested the Belgian consulate in Italy to have “ Il Forteto ” inspected by the Belgian diplomatic authorities. The Belgian diplomats did not note anything untoward during their visit.", "78. On 15 July 1998 the second applicant requested the Belgian authorities to seek the transfer of the children to Belgium under the Convention concerning the powers of authorities and the law applicable in respect of the protection of minors concluded at The Hague on 5 October 1961.", "E. Decision of the Florence Youth Court of 22 December 1998 and the contact visits between the first applicant and her children", "79. On 22 December 1998 the Florence Youth Court examined the first applicant's application of 3 December 1997, the second applicant's application of 14 October 1997 and the guardian's application of 10 October 1997. It began by reconsidering its decision of 6 July 1998 and ordered that the counselling programme in preparation for contact between the two applicants and the children should begin immediately. The meetings were to start on 15 March 1999 at the latest. As regards the second applicant, the Youth Court considered that her recent move to Italy would facilitate the implementation of the preparatory programme. It nonetheless renewed its orders suspending parental rights and for the children's placement at “ Il Forteto ”, as the first applicant's domestic situation remained very difficult – despite her separation from the children's father – while the children had adapted very well to their foster home. Lastly, the Youth Court also envisaged a resumption of relations between the children and their father, who had shown a willingness to re-establish contact. Contact visits by the father could not, however, start before September 1999, owing to the uncertainty of his position while the criminal investigation was pending.", "80. On 8 January 1999 a judge of the Youth Court informed the Sesto Fiorentino Social Services Department that, in order to ensure continuity, it would be responsible for continuing the work of counselling for the visits ordered by the court on 22 December 1998. The court observed that the first applicant had requested that contact visits should commence.", "81. On 13 January 1999 the Sesto Fiorentino Social Services Department declared that it had no power to organise the counselling, as the first applicant had moved and the social worker hitherto assigned to her case had been transferred in the meantime.", "82. On 4 February 1999 the Figline Valdarno Social Services Department assigned a social worker to monitor the first applicant's progress. When giving evidence to the Youth Court on 8 February the social worker admitted that she was unfamiliar with the case, but said that she was conscious of the urgency of the situation and undertook to prepare the mother for contact with her children by no later than 15 March, the deadline set by the court.", "83. On 9 February 1999 a social worker from Vicchio (Mrs S.C.) and the child- neuropsychiatrist, Mr R.L., who were responsible for monitoring the progress of the first applicant's children and who had already prepared a programme of meetings with the children and the foster parents, informed the Youth Court that they had reservations as to the appropriateness of their being asked to counsel the children's father and grandmother with a view to contact. According to the social services department, there was a danger that the close proximity of the children would create tensions, added to which it did not know either the father or the grandmother. For those reasons, it suggested that they should receive preparatory counselling from their local social services.", "84. On 12 February 1999 the Head of the Figline Valdarno Social Services Department informed the Youth Court that it was encountering difficulties in obtaining all the documents relevant to the case. She proposed that the court should therefore convene a meeting of all the specialists and social workers involved.", "85. On 15 February 1999 the Youth Court replied, inter alia, to the Social Services Departments of Figline Valdarno and Vicchio; it informed them that the court proceedings had finished and that, accordingly, the administrative and organisational matters were to be dealt with by social services. It remarked, too, on the length of time that social services had taken since its decision and reminded them that they should be giving it their urgent attention.", "86. On 18 February 1999 the Figline Valdarno Social Services Department convened a meeting of all the social services departments involved. On 25 February 1999 the Vicchio Social Services Department informed the children's guardian that the programme of pre-contact counselling had begun in mid-January.", "87. On 2 March 1999 the elder boy sent a letter to the president of the Youth Court. Among other things he said that he had not seen his grandmother for four years and did not understand why she would want to see him again. As to his mother, he said that she had always sought to justify the conduct of his “social workers”, even though he had informed her of their conduct. It was only on arriving at “ Il Forteto ” that he had been able to comprehend, thanks to Mrs M. and Mr G., what he had been through and what it meant to have a father and mother. For those reasons, he did not want to see his mother at that stage. (He signed the letter using the surname of one of his official foster parents at “ Il Forteto ”, before also adding his own surname.)", "88. On 8 March 1999 the Florence Social Security Department informed the Youth Court that the various tasks had been assigned. However, it was not possible to set a date for the visits to begin as G. was now reluctant to see his mother immediately after seeing a specialist on 26 February 1999 (see paragraph 116 below). It added that the meetings with the grandmother and the father would begin during a second phase.", "89. A few days later G. informed the Youth Court that after his experience with the specialist he did not wish to meet his mother or grandmother for at least three months.", "90. After the first applicant had received preparatory counselling, the initial contact with the children nonetheless took place on 29 April 1999. G., so it appears, preferred not to leave his younger brother to see their mother on his own. According to the reports of social services dated 21 June and 5 July 1999, that first visit showed that both the children and the mother were experiencing difficulties. The mother was not sufficiently receptive to what the children said, while they perceived her insistence as a threat to the stability of their new environment. The children had been mistrustful from the outset of the visit and the younger child had not even acknowledged that the first applicant was his mother. Social services observed that despite the children's wish to see their mother, they had been disappointed.", "91. However, having viewed the video recordings of that first visit produced by the Government (see paragraph 10 above), the Court has found nothing to support the appraisal and unfavourable comments of social services to which the Government refer. The visit took place in a room in the psychology unit at the social services department. It was friendly and the atmosphere was reasonably relaxed. Towards the middle of the visit the elder son began to cry, very probably when old wounds from his dramatic past were reopened. The episode was brief, he appeared relieved afterwards and calm was quickly restored between the first applicant and the children. Social services displayed an evident lack of tact towards the first applicant. Two people – either social workers or specialists – were present in the room throughout the visit so that the first applicant was at no stage able to enjoy any intimacy with her children, added to which, the visit was ended rather abruptly. The Court's view is that overall, though tense, the relationship between the first applicant and her children was warm and relaxed. The first applicant behaved responsibly throughout the visit, proved ready to cooperate and was respectful. Although the children did not manifest any obvious regret when the visit ended, the Court considers that the terms summarised above which social services used in their reports to describe the visit were unduly dramatic and unfavourable to the first applicant, and do not correspond to what was seen on the video recording produced by the respondent Government.", "92. That notwithstanding, the elder child wrote to the social workers on 6 May 1999, expressing disappointment with that first contact.", "93. A second visit took place on 9 September 1999. According to the report of social services, G. on this occasion sought an explanation from his mother for her alleged failure to react to his allusions to the paedophile violence to which he had been subjected. He had left the room when the first applicant refused to accept his criticism. In their report, social services stressed the first applicant's inability to listen to her son or to follow the recommendations of the specialists, while at the same time showing understanding of her painful situation and her desire to assert herself in her role as mother. According to a subsequent report (see paragraph 95 below), one of the specialists present during the contact visit had suggested to the first applicant that she write a letter to her son but, according to the report, she had refused.", "94. However, having examined the audio recordings produced by the Government (see paragraph 10 above), the Court has found nothing to support social services' position. The arrangements for this visit appear to have been similar to those for the first in that, in particular, it was held on premises belonging to social services, again in the presence of two specialists. The following points arising from the focal points of the visit have enabled the Court to identify once more discrepancies between social services' official report and what was heard on the recording. In particular:", "( i ) the report does not mention the fact that the first applicant asked the children whether they were happy to see her again or that they said that they were;", "(ii) the elder son did not raise the question of his mother's role in the paedophile assaults on him on his own initiative, as the report seems to suggest, but was prompted to do so by one of the two specialists present;", "(iii) after the visit was over, one of the specialists told the first applicant that in reality her elder son had not wanted to see her again and that the new visit had only proved possible thanks to the efforts of the other specialist present;", "(iv) the experts said that whether there were to be further visits would depend on the elder son and that the first applicant would be able to see her younger son “if possible”, to which she had reacted by asking them what they meant by the latter expression, but the specialists had replied that the answer did not depend on them.", "95. On 4 October 1999 the specialists from social services met the children at “ Il Forteto ” in the presence of the foster parents, with a view to assessing the short-term prospects of contact with their mother continuing. According to the report of social services, the meeting ended “with an agreement, at G.'s and M.'s request, to suspend contact with their mother for the time being”. A further session of preparatory counselling was nevertheless arranged with the first applicant for 9 November 1999.", "96. On 3 January 2000 a specialist from social services met the first applicant. At the meeting, the latter complained that the children's Christmas presents had been refused. She reiterated her attachment to the children and her willingness to explain matters to them if they agreed to meet her. Since then, no further visits have been organised or programmed. Furthermore, in their last report (29 March 2000), social services said, inter alia, that:", "( i ) the elder child was in the process of acquiring a new identity marked by the suffering from the past and, consequently, did not appear to be being manipulated;", "(ii) he considered it preferable not to see his mother again during the next two years;", "(iii) social services had decided to suspend all contact between the first applicant and her children, while at the same time continuing to counsel her with her a view to keeping her informed of any changes in the children's attitude on that subject.", "97. As to the father, he has not visited the children at all, despite the fact that preparatory counselling sessions with social services were held at the end of 1999. From a report by social services dated 8 November 1999, it would appear that the father was aware of the evolution of the situation between his former wife and the children, and in particular of the negative outcome of the visit on 9 September 1999. The first applicant maintains, however, that she was no longer in touch with him and that he spent his time travelling between Belgium and Italy.", "F. Further appeals by the applicants", "98. On 21 January 1999 the first applicant appealed against the decision of the Youth Court of 22 December 1998. Her primary request was for reinstatement of her parental rights and an immediate renewal of contact with her children. She contended in particular that she had in the meantime separated from her former husband – whom the relevant judge had regarded as being responsible for violence against both her and the children – and now led a normal life and was working as a chiropodist.", "99. The first applicant also challenged the decision to keep the children at “ Il Forteto ” and requested their placement elsewhere, arguing:", "( i ) that it was difficult for the parents of children staying in the community to gain access to them;", "(ii) L.R.F. and L.G. remained the most important figures at “ Il Forteto ”, despite their convictions;", "(iii) the foster parents at “ Il Forteto ” were doing all they could to hinder a resumption of relations with the children.", "100. The second applicant also appealed.", "101. On 22 March 1999 the children's guardian intervened in the proceedings before the Court of Appeal, requesting the suspension of contact for several months, inter alia, on the grounds that:", "( i ) the first applicant had largely exaggerated her professional qualifications;", "(ii) for several years she had failed to notice what her elder son, G., was going through, which demonstrated that she was incapable of assuming her role as mother;", "(iii) the grandmother had always lived in Belgium and had not shown any real interest in the children. In addition, no one knew what she had been doing since moving to Italy. Furthermore, it was difficult to see how she could claim to be able to provide the children with a good upbringing when she had not succeeded in doing so for her daughter (the first applicant), who, at best, was an inadequate, unsuitable and absent mother;", "(iv) the children's father was a fugitive criminal after his escape from prison in Belgium, where he had been serving a 27-year prison sentence for murder;", "(v) “ Il Forteto ” was a cooperative that was internationally famous for its production of milk and cheeses, but also an innovative home for the protection of children in distress that had been founded by twenty families who had never abandoned it. While it was true that two of its members had convictions (although they were not, in any event, members of the family looking after the first applicant's children), it was equally true that such prosecutions could be based on false evidence. Furthermore, over a twenty-year period, some seventy children had been placed with the cooperative by courts from regions all over Italy and a number of those care orders had subsequently resulted in adoptions, thus confirming the validity of that option and the courts' confidence in “ Il Forteto ”.", "102. The public prosecutor at the Court of Appeal requested that the children be put into the care of their grandmother or, failing that, of another family.", "103. On 31 March 1999 the Court of Appeal upheld the decision of the Youth Court. It emphasised, in particular, the positive evolution of the children's situation and considered that the allegations concerning “ Il Forteto ” were of a general nature, with the exception of the events of twenty years earlier, which in any event did not concern the children's foster parents. Although the applicants had produced statements from highly qualified people contesting the methods employed at “ Il Forteto ”, the fact that there were other statements from equally qualified people confirming its reputation could not be disregarded. The good conditions in which the children were living made it unnecessary to accede to the grandmother's request as, though in theory it was preferable to put children in the care of a member of the family rather than in a community, the children had by that time been staying with the community for some while and the results had been positive. Moreover, the children did not know their grandmother very well and she did not appear to be independent of her daughter.", "104. The first applicant appealed to the Court of Cassation. As to the placement of the children at “ Il Forteto ”, she observed that even though the children were not in the immediate care of the two leaders with convictions, it had been the latter who had brought the foster parents into the home and trained them (L.R.F. had even become the president of the cooperative ). Moreover, L.G.'s wife was actively involved in looking after the children, the elder son, G., having admitted in his letter of 2 March 1999 that it had been she who had helped him to interpret his doubts about his mother.", "105. The Court has not been informed of the outcome of the proceedings before the Court of Cassation.", "106. On 25 October 1999 the first applicant asked the guardianship judge to request that contact visits be arranged at more regular intervals than in the past and to permit a psychologist to interview the children in “ Il Forteto ” and attend the counselling sessions prior to the visits. On 3 November 1999 the guardianship judge agreed in particular to the requests relating to the presence of the psychologist at the preparatory sessions and at the visits with the children and to the production of the audio-visual recording of the meetings. The children's guardian appealed.", "107. In a decision of 12 January 2000, the Florence Youth Court allowed the guardian's appeal and reversed the decision of the guardianship judge. On the basis of the information supplied by social services it found that the negative results of the two visits should be attributed to a lack of cooperation on the first applicant's part. Accordingly, the presence of another specialist during visits to facilitate a change in attitude by the first applicant did not appear necessary, as she was already receiving sufficient counselling from the institutional services appointed by the court. As regards the audio-visual recording of the visits, the Youth Court considered that it would not be appropriate for the first applicant to view such material, as the purpose of recording the visits was to enable the relevant authorities to assess whether the visits had been a success and whether it was possible and appropriate for them to continue.", "108. The first applicant appealed against that decision. She argued, inter alia, that the Youth Court had accepted social services' conclusions regarding the negative results of the visits as they stood; it had failed in its duty to supervise the implementation of its decisions critically and with the help of relevant objective evidence such as the audio-visual recordings which she had asked to be produced. In her submission, apart from the fact that she failed to see how a visit which she had been looking forward to for years could have been interpreted so negatively, her right to examine the recordings was all the more founded in that it would help her gain a better understanding of herself and to adapt her behaviour. It was, furthermore, absurd for the Youth Court to refuse to examine the recordings itself or to allow the guardianship judge to do so. Lastly, the presence at the preparatory sessions and during contact visits of a specialist chosen by the applicant would help her to take part in her children's family and psychological development, particularly as there was no statutory provision to prohibit a parent from seeking the additional help of private psychologists to prepare for re-establishing relations with his children.", "109. In a decision of 17 March 2000 the Youth Court authorised the showing of the audio-visual recordings to the first applicant, since they had already been produced to the Court and consequently were of procedural, as well as clinical, value.", "G. The programme of visits by the second applicant", "110. The second applicant was invited on 4 November 1999 to begin a programme preparing her for contact with her grandchildren. However, the notice of appointment was returned to the sender. Inquiries were made to establish whether the second applicant had changed address in the meantime. At the first applicant's suggestion, a further notice was sent to the first applicant's sister, but social services were informed that the second applicant was still unable to attend. They received the same reply for a session scheduled in December 1999. The second applicant explained her absence by the fact that she had had to return to Belgium as a matter of urgency as the invalidity benefit she received for her handicapped son had been cancelled because of her move to Italy. The first preparatory session with social services finally took place on 10 January 2000.", "111. According to the report prepared by social services, the second applicant complained at that session that she had not been given an appointment in March 1999 and said that she could not leave Belgium for more than three months at a time, as otherwise she risked losing the invalidity benefit she received there for her handicapped son. She said that she wished to see the children and wanted them to live with her. She justified her silence over a period of several months by the fact that she did not know what stage the programme of visits between the children and her daughter had reached, as she no longer had any contact with the latter. It was also mentioned in the report that the second applicant had advised against the children being returned to their mother because the latter continued to see her former husband, as had been confirmed both by her daughter herself and by neighbours. The cause of all the problems was N.A.'s violence and the first applicant's inability to defend either herself or the children. She had concluded by saying that she was unhappy with the fact that the children had been sent to “ Il Forteto ”.", "112. According to the most recent information received from the first applicant, the second applicant will be required to reimburse a substantial sum to the Belgian State in respect of benefit received during the periods when she was staying in Italy, and in February 2000 she was admitted to hospital with heart problems.", "H. Subsequent developments in the criminal proceedings against the first applicant", "113. On 19 June 1998 the guardian sent a letter to the public prosecutor written the previous day by the elder child, in which the boy said that his mother had been aware of the paedophile abuse to which he had been subjected and that on one occasion he had witnessed her receiving money from M.L.", "114. The child confirmed his accusations on questioning by the public prosecutor on 14 July 1998. He was accompanied to the interview by Mr G.C. and Mrs M.C. (who was in fact Mr L.G.'s wife), as foster parents.", "115. On 11 November 1998 the public prosecutor questioned M.L. about the accusations made against the first applicant by the elder child. M.L. denied what the child had said and concluded:", "“What I have said up to now is the simple truth. I would have no difficulty in confirming what G. has said if it were true ... I believe that G. has invented, at least in part, what he has said because of bitterness towards his parents. G. had a very poor relationship with his father, but adored his mother. Perhaps he later became rather bitter because he felt that she had not done enough to protect him. If I could confirm what he has said I would do so, to help him, too.”", "116. On 27 February 1999 the children were examined by a specialist in the presence of the investigating judge. The judicial authorities' assessment of the results of the specialist examination is not yet known. During the examination, the elder child admitted having written the letter of 19 June 1998 in the presence of, inter alia, R. (probably L.R.F.). He also said that he would be pleased to see his mother again.", "117. In addition, on an unspecified date and in circumstances that have not been clarified, the first applicant's sister was heard by the Florence Youth Court. She stated that she was living with her mother and one of her brother's at Figline Valdarno and that another brother, who had been involved in drug trafficking, had been killed. An elder brother who had not forgiven her for having intervened as a civil party in the criminal proceedings instituted following the death of the other brother had accused her of attempted murder. According to the record of her sister' statements, the first applicant had also been charged.", "I. Other information relating to the children's mental and physical welfare", "118. In a certificate of 8 June 1998, the neuropsychiatrist, R.L., noted that the younger child was fragile psychologically and advised the authorities to act with great caution.", "119. In addition:", "– a doctor's certificate dated 1 November 1998 described the elder child as being in “excellent” health;", "– a certificate by another doctor dated 11 November 1998 expressed the view that the younger child's health had improved and was “good”.", "120. A certificate drawn up by a paediatrician on 24 November 1998 stated that the children were in excellent health and that their development and growth appeared normal.", "121. In addition, the school report on the elder child for the school year 1997/98 and a report by the teachers stated that he was working hard and making constant progress.", "122. Social services said in a report of 5 July 1999 that the children's stay at “ Il Forteto ” had been very positive from both an emotional and a relational standpoint, had enabled them to recover a degree of equilibrium and made them more receptive to interpersonal relations.", "123. Lastly, in their last report (29 March 2000) social services said that the younger child was now attending nursery school and his relations with the teachers were very good." ]

[ "II. RELEVANT DOMESTIC LAW", "124. Article 330 of the Italian Civil Code provides:", "“The court may declare parental rights forfeit if the parents do not perform or neglect the obligations inherent in their parental role or abuse the powers related thereto causing serious detriment to the child.", "In such eventuality, the court may, if there are serious grounds for so doing, order the child's removal from the family home.”", "125. Article 333 of the Civil Code provides:", "“Where the conduct of one or both parents is not such as to give rise to their parental rights being declared forfeit under Article 330, but is nonetheless detrimental to the child, the court may adopt any measure that is appropriate in the circumstances and may even order the child's removal from the family home.", "These measures may be revoked at any time.”", "126. Furthermore, Law no. 184 of 4 May 1983 on the fostering of minors and adoption, provides, inter alia, that a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family, with a family-type community, or if it is not possible to provide him with a satisfactory family environment, in a children's home (section 2).", "127. Section 4 of that law provides, inter alia, that among other matters that must be stipulated in an order placing the child with a family is its provisional duration (paragraph 3). In addition, section 5 provides that the family, home or community in whose care the child is placed must facilitate relations between the minor and his natural parents and his reintegration in his original family.", "128. Section 9 imposes an obligation on children's homes to send six-monthly reports to the guardianship judge on the minor, his relations with the family of origin and his mental and physical welfare. The provision also requires the guardianship judge to report to the youth court on abandoned children in the home and to carry out six-monthly inspections.", "129. Lastly, section 12 provides, inter alia, that where investigations have revealed the existence of relatives or other family members up to the fourth degree who have maintained meaningful contact with the minor and whose whereabouts are known, the president of the court shall order their attendance at court (paragraph 1). After hearing them, the president of the court may give them such instructions as shall be necessary to ensure that the minor receives emotional support, maintenance, an education and an upbringing (paragraph 3).", "the law", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "130. The first applicant, who purported also to be acting on behalf of her children, complained of infringements of Article 8 of the Convention in that her parental rights had been suspended, her children had been taken into care, the authorities had delayed before finally allowing her to see the children, too few contact visits had been organised and the authorities had placed the children at “ Il Forteto ”.", "131. The second applicant also alleged a violation of Article 8, complaining that the authorities had discounted the possibility of her being given the care of her grandsons and delayed organising contact with them.", "132. Article 8 is worded as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "133. The Government contested the applicants' arguments.", "134. The Commission expressed the opinion that that there had been no violation on account of the suspension of parental rights or the children's placement at “ Il Forteto ”, and no violation of the second applicant's rights. Conversely, it considered that there had been a violation of Article 8 as regards contact between the first applicant and her children.", "A. The Government's preliminary objection regarding the first applicant's standing also to act on her children's behalf and, consequently, the Belgian Government's standing to intervene in the proceedings", "135. The Italian Government contested, firstly, the first applicant's standing also to act on behalf of her children, as her parental rights had been suspended on 9 September 1997, there was a conflict of interest between her and the children and criminal proceedings were pending against her for offences against her children. In addition, the Government argued that the first applicant had never clearly stated that her application to the Court was made on behalf of her children, too.", "136. The Government went on to contend that the Belgian Government had no standing to intervene, since their intervention was based solely on the fact that the elder child was a Belgian national.", "137. The Commission rejected that objection, noting that it was clear from the first application that the first applicant's children were also applicants and represented by the same lawyer in the proceedings before it. It added that there was nothing to prevent minors applying to the Commission. Indeed, there was all the more reason to allow them to do so where they were represented by a mother who had a conflict of interest with the guardian whom the public authorities had entrusted with the task of looking after the children's interests in her stead.", "138. The Court points out that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person (see, mutatis mutandis, the Nielsen v. Denmark judgment of 28 November 1988, Series A no. 144, pp. 21-22, §§ 56-57). In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. Like the Commission, the Court considers that in the event of a conflict over a minor's interests between a natural parent and the person appointed by the authorities to act as the child's guardian, there is a danger that some of those interests will never be brought to the Court's attention and that the minor will be deprived of effective protection of his rights under the Convention. Consequently, as the Commission observed, even though the mother has been deprived of parental rights – indeed that is one of the causes of the dispute which she has referred to the Court – her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the children's behalf, too, in order to protect their interests.", "139. Moreover, the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 15, § 31).", "140. Therefore, since the first applicant also has standing to act on behalf of the children, the Belgian Government are entitled to take part in the proceedings within the meaning of Article 36 § 1 of the Convention and Rule 61 § 2 of the Rules of Court, as the elder child also has Belgian nationality.", "141. The Court accordingly concludes that the Government's preliminary objection must be dismissed, both as regards the locus standi of the first applicant's children and the standing of the Belgian Government to intervene in the proceedings.", "B. Compliance with Article 8: was the interference “in accordance with the law” and did it pursue a legitimate aim?", "142. It was common ground that the impugned interference was in accordance with the law for the purposes of Article 8, the relevant provisions being, in particular, Articles 330 and 333 of the Civil Code (see paragraphs 124-25 above) and section 2 of Law no. 184 of 1983 (see paragraph 126 above). It is true that the applicants alleged a failure to apply certain provisions of the latter statute, notably those concerning the provisional length of the placement (section 4(3)), the duty of directors of care institutions to facilitate links with the family of origin (section 5), and the refusal to give consideration to putting the children in the care of their maternal grandmother (section 12(1)). However, those matters concern the manner in which the relevant domestic provisions were applied, not the legal basis for the impugned interference as such. They therefore relate to the issue whether the relevant provisions were applied in accordance with the Convention principles.", "143. Furthermore, the parties also agreed that the impugned measures pursued a legitimate aim within the meaning of Article 8, namely “the protection of health or morals” and “the protection of the rights and freedoms of others”, as they were intended to protect the welfare of the first applicant's children.", "C. Compliance with Article 8: was the interference “necessary in a democratic society”?", "1. Suspension of the first applicant's parental authority and the removal of the children", "(a) Submissions of those appearing before the Court", "( i ) The first applicant", "144. The first applicant contested the authorities' decision and stressed, inter alia, her determination to break free of the family background that had been damaged by her former husband's violence. That determination was shown notably by the fact that she had lodged a complaint against her former husband and separated from him.", "(ii) The Belgian Government", "145. The Belgian Government considered that the suspension of parental rights appeared justified in view of the limited capacities of the first applicant and her former husband to bring up the children.", "(iii) The Italian Government", "146. The respondent Government emphasised above all the gravity of the domestic circumstances of the first applicant, which had been marked by the sexual abuse which one of her friends had inflicted on the elder child for years and the repeated violence that characterised the relations between the members of the family. The Government also referred to the first applicant's complex personality and concluded that the measure in issue had been justified by the children's interests.", "(iv) The Commission", "147. The Commission considered that since the children had been confronted over a very considerable period by situations that were undoubtedly harmful to their development, the interference by the authorities through the children's removal was justified in order to protect their interests.", "(b) The Court's assessment", "148. The Court reiterates that “... it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child ...” (see the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 33-34, § 72). Therefore, “... regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State ... enjoy[s] a certain margin of appreciation ...” (see the Hokkanen v. Finland judgment of 23 September 1994, Series A 299-A, p. 20, § 55). In this sphere, “... the Court['s] ... review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith ... In the second place, in exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced to justify the interferences at issue are 'relevant and sufficient ...' ” (see the Olsson (no. 1) judgment cited above, p. 32, § 68, and, mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25-26, § 52).", "149. The Court notes that the first applicant's domestic circumstances seriously deteriorated in 1994 (see paragraph 13 above). It is particularly struck by the negative role played by her former husband. The case file shows that it was he who was largely responsible for the violent atmosphere within the family through his repeated assaults on the children and his former wife, which led the first applicant to lodge a criminal complaint (see paragraph 13 above).", "150. However, it must be noted, too, that even after separating from her former husband, the first applicant found it difficult to look after her children. In that connection, the Court attaches weight to the report of 9 June 1997 by the neuropsychiatrist employed by the local health authority (see paragraph 24 above), in which she expressed the view that the first applicant was suffering from a personality disorder and was incapable of managing the complex situation of her family and children. The problem is compounded by the severe trauma suffered by the elder child as a result of the paedophile abuse of him by a social worker who succeeded in ingratiating himself with the first applicant's family.", "151. Under those circumstances, the Court agrees with the Commission on this point and considers that against that background the authorities' intervention, through the suspension of the first applicant's parental rights and the temporary removal of the children from their mother's care, was based on relevant and sufficient reasons and was justified by the need to protect the children's interests. Consequently, there has been no violation of Article 8 of the Convention on that account.", "2. Contact between the first applicant and her children", "(a) Submissions of those appearing before the Court", "( i ) The first applicant", "152. The first applicant observed, firstly, that she could not understand why she had been prevented from seeing her elder son since the decision of 9 September 1997.", "153. As to the accusations that had been made against her in July 1998, she submitted that it was absurd to have interrupted a relationship as sensitive as that between mother and son because, if at the end of the proceedings she was found innocent, she would have suffered irreversible harm. In that connection, she complained that the authorities had used double standards: the Youth Court had cited the accusations against her (even though they had not resulted in her being committed for trial) as the reason for separating her from her children for a lengthy period, whereas it had continued to place children at “ Il Forteto ”, despite the final convictions of two leaders of that community for serious offences against children in their care.", "154. The first applicant also alleged that social services in fact had a very negative view of her that was in the process of strongly influencing her elder son to the point where he had shown a hostility towards her that had not previously been present.", "(ii) The Belgian Government", "155. The Belgian Government submitted, as its principal contention, that when in March 1998 the Youth Court had ordered the implementation of a preparatory programme for contact with M., the issue whether the suspension of contact with G. should continue had not been raised, even though the psychiatric report that had been ordered by the Youth Court on 18 November 1997 had concerned both children.", "156. As to the suspension of the contact with the younger son that had already been scheduled for 8 July 1998 the Belgian Government observed that while it was defensible in principle, in practice it had to be noted that:", "– the allegations that had culminated in the child being questioned had been known to the authorities for seven months (since 7 January 1998);", "– the matters revealed implicated only the child's father and there was only a possibility that the investigation would also encompass the first applicant, as the public prosecutor had indicated in his notes of 18 and 26 June 1998;", "– M. was not questioned until 27 February 1999, that is to say seven months later.", "157. In fact, M. was not questioned until the Youth Court had delivered its decision of 22 December 1998 in which it ordered the implementation of a new preparatory procedure for the resumption of contact between the two children and their mother. The fact that the Youth Court had ordered a resumption of contact even before M. had been questioned in connection with the criminal proceedings considerably undermined its reasoning in the decision of 6 July 1998, while the harmful consequences of that decision for M., resulting from the abrupt halt to the preparatory sessions, could not be disregarded.", "158. Even after the decision of 22 December 1998, the visits had begun late (on 29 April) after nineteen months' separation. In the Belgian Government's submission, the prevention of any contact over such a lengthy period constituted an extremely serious interference in the first applicant's family life, especially when the tender age of the younger son was taken into account. Accordingly, the inconsistencies in the authorities' decisions could not be regarded as compatible with the requirements of Article 8.", "(iii) The Italian Government", "159. The respondent Government observed, firstly, that it was not until 4 November 1997, that is to say two months after the Youth Court's decision to place the children at “ Il Forteto ”, that the first applicant had complained for the first time that, contrary to the Youth Court's decision, she had not been given an opportunity to see her younger son.", "160. The respondent Government went on to emphasise the ambivalent attitude of the first applicant. In order to have a better understanding of her personality, the Government suggested that it might be helpful to recall that during the course of the proceedings she had described herself on a number of occasions as a psychologist, a nurse and a gynaecologist. It was also appropriate to refer to the proceedings currently pending before the Florence Court concerning acts that she was presumed to have committed against her elder son (there being serious evidence of complicity on her part), to the attempted suicide of the daughter born of the first applicant's first marriage as a result of the domestic violence of which she had been victim, and to the statements of the first applicant's sister to the Florence Youth Court.", "161. The Government also argued that there was a need for preparatory counselling before contact visits, and that such counselling should be provided at brief intervals so as to avoid a preferential relationship developing between the mother and M., the younger son, as that would create serious tension in the relationship between the two brothers, a relationship which social services considered important to maintain. Furthermore, owing to the complexity of the programme and the desirability of verifying the effective needs of those concerned, it had been necessary to devote time to it.", "162. The Government also referred to the difficulties social services had encountered as a result of the first applicant's aggressive and threatening behaviour, particularly towards her elder son, which the Government maintained was almost certainly linked to his statements in the criminal proceedings.", "163. The postponement of the visit scheduled for 6 July 1998 had been fully justified by the requirements of the criminal investigation, since the children would have to be questioned and the first applicant's attitude towards her elder son had been threatening.", "164. The respondent Government also pointed to the commitment of the services involved in guiding the children through an innovative programme aimed at the children's psychological and emotional recovery and at giving them a better understanding of their parents' role. In the light of that aim, the Government considered it desirable for the first applicant to cooperate with social services and to stop adopting a threatening stance against her elder son at meetings (the Government also referred to the first applicant's refusal to heed the advice of the social workers at the end of the meeting on 9 September 1999 to write to her elder son).", "165. Contact visits would in any event resume in accordance with the decisions of the specialists dealing with the case.", "(iv.) The Commission", "166. The Commission said that it was conscious of the particularly serious nature of the situation of the first applicant's children and did not question the need to take precautions owing to the suffering and trauma to which the children had been exposed both generally and during the visits from their mother.", "167. It considered, however, that the total severance of relations that occurred just as it was adopting its report was unjustified. In its view, there were no exceptional circumstances capable of justifying a total severance of contact in the instant case. Indeed, the authorities themselves had envisaged a resumption of contact, at least with the younger son. In addition, total severance appeared still more unjustified in the present case in view of the first applicant's concerns over the community chosen for the placement, which concerns were understandable when, inter alia, the criminal antecedents of certain leaders of “ Il Forteto ” were taken into account.", "168. As regards the suspension of visits that had already been scheduled with the younger son, the Commission expressed the opinion that the reason relied on by the authorities – namely the fact that an investigation had been started concerning the children's father – appeared weak, since the prosecution had not referred to any concrete evidence against the first applicant and had confined itself to alluding to a possible extension of the investigation to the mother.", "(b) The Court's assessment", "169. The Court reiterates, firstly: “the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life; furthermore, the natural family relationship is not terminated by reason of the fact that the child has been taken into public care ...” (see the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, § 58). As the Court has previously observed, “... taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and ... any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child ... In this regard, a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child ... In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular, ... the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development. (see the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1008-09, § 78).", "170. The Court considers, firstly, that the decision of 9 September 1997 to prohibit any contact between the first applicant and her elder son does not appear to have been based on sufficiently valid reasons. It is true that the child had gone through a very difficult and traumatic experience. However, as the Commission pointed out in its report, a measure as radical as the total severance of contact can be justified only in exceptional circumstances (see the B. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 78-79, § 77). While the complex circumstances that were harmful to the family life and the development of the children fully justified their being temporarily taken into care (and without underestimating the importance of appropriate psychological support for the mother), the grave situation within the first applicant's family did not, in the Court's view, justify by itself contact with the elder child being severed, regard being had not only to the attachment which the first applicant has always shown to her children, but also and above all to the authorities' decision to allow at the same time a resumption of contact with the younger child. Given that the authorities did not wish to deprive the first applicant of all parental rights permanently, the decision to exclude G. from all contact with his mother entails a partial breakdown in relations, including relations between the brothers, and does not tally with the declared aim of bringing about a resumption of relations with the mother.", "171. The Court further notes that although the decision of 9 September 1997 provided for the organisation of visits with the younger son, nothing further was done until 6 March 1998, when the Florence Youth Court finally decided to require visits to be preceded by a preparatory programme for the mother. However, nothing came of that as, just two days before the first visit was due to take place on 8 July 1998 and at the request of the deputy public prosecutor, who had just started an investigation concerning the children's father (see paragraph 66 above), the Youth Court decided to suspend the visits that had already been scheduled. As regards that decision, the Court agrees with the Commission's opinion. It is difficult to identify the basis for the Youth Court reaching such a harsh decision, with its very negative psychological impact on those concerned, since the public prosecutor's application had been based on the mere possibility, unsupported by any objective evidence, that the scope of the investigation might be enlarged to include the mother. While it is true that the child had for the first time accused his mother in a letter sent to the public prosecutor on 19 June 1998 (see paragraph 113 above) of being implicated in the paedophile assaults on him, no serious attempt was made to verify the truth of that allegation, (and none was made until 11 November 1998 when the paedophile concerned was questioned and said that the allegation was untrue – see paragraph 115 above). The Court has to conclude that both the deputy public prosecutor and the Youth Court acted irresponsibly.", "172. Indeed, a mere five months later, on 22 December 1998, the Youth Court gave the first applicant permission to see both children, even though officially the investigation was still pending. That appears to have been in flat contradiction to the decisions taken in the summer of that year.", "173. However, once again, despite an order of the Youth Court for the resumption of visits by 15 March 1999, the first visit did not take place until 29 April 1999. Indeed, the delay was remarked on by the Youth Court itself in its note of 15 February 1999. To the extent that the delay was attributable to administrative difficulties (see paragraphs 84-85 above), it should not be forgotten that “in so fundamental an area as respect for family life, such considerations cannot be allowed to play more than a secondary role” (see the Olsson (no. 1) judgment cited above, p. 37, § 82). Such a delay was even more unacceptable in the instant case as, by that time, the first applicant and her children had already been separated for a year and a half.", "174. What is more, the first visit did not prove to be the beginning of regular and frequent contact to assist the children and their mother in rebuilding their relationship. It is true that the elder son expressed disappointment over the first meeting in his letter of 6 May 1999 to the social workers (see paragraph 92 above). However, leaving aside the fact that letters sent by the elder child to the various authorities involved in the case must be treated with caution given the special situation in which the child found himself (as the Court will remark upon below – see paragraph 210 below), a sense of disappointment is perfectly understandable after such a long separation following events that were traumatic for the child. On the contrary, that situation should have incited social services to organise visits at regular intervals to help the children get through such a difficult period. Continued separation can certainly not be expected to help re-cement family bonds that have already been put under considerable strain. It should be recalled in this connection that “ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other” (see the Olsson (no. 1) judgment cited above, pp. 36-37, § 81).", "175. The Court wishes to emphasise that it does not underestimate the importance of preparatory counselling. Indeed, it has previously said: “... the reunion of natural parents with children who have lived for some time in a foster family needs preparation. The nature and extent of such preparation may depend on the circumstances of each case, but it always requires the active and understanding cooperation of all concerned. Whilst national authorities must do their utmost to bring about such cooperation, their possibilities of applying coercion in this respect are limited since the interests as well as the rights and freedoms of all concerned must be taken into account, notably the children's interests and their rights under Article 8 of the Convention. Where contacts with the natural parents would harm those interests or interfere with those rights, it is for the national authorities to strike a fair balance ...” (see the Olsson v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90). In the instant case, however, it has to be observed that a single visit could not suffice to give the children an opportunity to re-establish bonds with their mother. Having regard to the fact that the first visit was preceded by a preparatory phase that had already contributed to delays, the Court fails to understand why it was not rapidly followed by further visits. It also considers that the Government have furnished no satisfactory explanation to justify the subsequent preparatory phase lasting a further four months and, a fortiori, the absence of any further visit after 9 September 1999.", "176. Having carefully examined the video recordings of the first visit (see paragraph 91 above), the Court found both the visit itself and its outcome to be far less negative than the report of social services suggests. Social services were nonetheless given complete freedom to defer the second visit for fully four months. Moreover, the audio recordings of the second visit (see paragraph 94 above) attest to the considerable latitude given to social services to decide whether and when further meetings should take place.", "177. On that subject, it should be borne in mind that there is a significant danger that a prolonged interruption of contact between parent and child or too great a gap between visits will undermine any real possibility of their being helped to surmount the difficulties that have arisen within the family and of the members of the family being reunited. (The danger is even greater for the younger child, who was very young when the separation occurred.)", "178. Therefore, in the circumstances of the present case, the Court finds it unacceptable that social services should be able, as they have been in this instance, to alter the practical effect of judicial decisions establishing that contact will, in principle, take place. Given their limited number and irregular occurrence (there have been only two in almost three years), the visits arranged to date have for all intents and purposes been sporadic and make little sense when viewed in the light of the principles established under Article 8.", "179. It is apparent from the case file that since the first visit social services have played an inordinate role in the implementation of the Youth Court's decisions and adopted a negative attitude towards the first applicant, an attitude for which the Court finds no convincing objective basis. In reality, the manner in which social services have dealt with the situation up till now has helped to accentuate the rift between the first applicant and the children, creating a risk that it will become permanent. The information contained in social services' latest report only goes to confirm that trend (see paragraph 96 above). Faced with that evolution in the situation, the Youth Court, which should in principle supervise the implementation of its decisions, approved the action being taken by social services, without conducting any thorough review.", "180. The fact that there had been only two visits (after one and a half year's separation) since its decision of 22 December 1998 should have incited the Youth Court to investigate the reasons for the delays in the programme, yet it merely accepted the negative conclusions of social services, without conducting any critical analysis of the facts. When confronted with the first applicant's complaints regarding the assessment of the outcome of the visits, the Youth Court deemed it unnecessary to examine the audio-visual recordings of the visits (permission for them to be produced was given after substantial delay and only after they had been produced to the Court – see paragraph 109 above), and despite the favourable opinion of the guardianship judge did not even authorise the presence during visits and preparatory sessions of an independent specialist designated by the first applicant (see paragraphs 106-07 above). Not only does there appear to have been no relevant basis for such refusals, they also deprived the Youth Court of a means of reviewing the action taken by social services.", "181. Article 8 demands that decisions of courts aimed in principle at facilitating visits between parents and their children so that they can re-establish relations with a view to reunification of the family be implemented in an effective and coherent manner. No logical purpose would be served in deciding that visits may take place if the manner in which the decision is implemented means that de facto the child is irreversibly separated from its natural parent. Accordingly, the relevant authorities, in this case the Youth Court, have a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure the latter's conduct does not defeat the authorities' decisions.", "182. Lastly, having regard to the material in the case file, the Court cannot attach any weight to the uncorroborated statements of the first applicant's sister (see paragraph 117 above). The respondent Government cannot therefore explain away the authorities' and social services' conduct, as they apparently seek to do, by such vague information, especially as neither the decisions of the former nor the reports of the latter make any reference to it. The Court further observes that the case file contains conflicting evidence as to the current relations between the first applicant and the former husband (see paragraphs 97 and 111 above). However, there is nothing in the case file to shows that the uncertainty about the current relations between the first applicant and her former husband justifies the conclusion that the first applicant is incapable of re-establishing bonds with her children. It will be noted, too, that none of the authorities' decisions contains sufficient information in that regard.", "183. In conclusion, the Court considers that the authorities failed to strike a fair balance between the interests of the first applicant's children and her rights under Article 8 of the Convention. Consequently, there has been a violation of Article 8 on this point.", "3. Decision to place the children with the “ Il Forteto ” community", "(a) Submissions of those appearing before the Court", "( i ) The first applicant", "184. The first applicant submitted that the philosophy of “ Il Forteto ”, based on the rejection of the natural family, has not evolved since the 1970s. The aim of “ Il Forteto ” would always be to separate children from their natural families, as G.'s letters confirmed.", "185. It was apparent from the case file that in practice the children were throughout their placement looked after, accompanied and supervised by L.R.F. and L.G., as was shown, for example, by the tenor of L.G.'s letter of 7 January 1998 to the public prosecutor. A letter of that nature should have been sent by the president of the community or the foster parents, not a community member who, according to the Government, had only a minor role in the children's upbringing.", "186. The first applicant further maintained that there were no real foster parents and that the children were in fact looked after by people other than those to whom the Youth Court had entrusted their care. It was significant, too, that G. never mentioned Mrs M.G. in his letters.", "187. As to the supervision which the authorities were meant to exercise over “ Il Forteto ”, the first applicant contended that in practice the relevant authorities did not compile their reports on the dates indicated by the Government. Thus, the first report by social services had been compiled in February 1998, the second in June 1998 and the third only in November 1999. Moreover, the six-monthly inspections required by section 9 of Law no. 184 of 1983 had not taken place.", "188. Lastly, the first applicant said that “ Il Forteto ” appeared to have been given considerable latitude in deciding on the arrangements for children in its care and to enjoy substantial support from social services. That fact, coupled with delays in implementing the authorities' decisions, compromised the effective application of those decisions.", "(ii) The Belgian Government", "189. The Belgian Government noted firstly that the two leaders of “ Il Forteto ” who had been convicted in 1985 had not undergone rehabilitation and that at the time of the criminal proceedings the Italian authorities continued to entrust minors into their care. It added that contrary to the allegations of the Italian Government, it was apparent from the case file that the two leaders had played an active role in the proceedings concerning the first applicant's children.", "190. While not endorsing the applicants' hasty conclusions that L.R.F. and L.G. continued to commit offences against children, the Belgian Government considered that care orders constituted such a serious interference in the family domain that their implementation had to be organised within a structure that was above all suspicion. As with Article 6 of the Convention, appearances were therefore relevant. Consequently, institutions fostering minors in difficulty had to provide every guarantee that they were reliable and competent. The presence within the structure of people with criminal convictions – albeit from long ago – seriously undermined the confidence which such institutions should inspire.", "191. The Belgian Government also observed that “ Il Forteto ” carried on a commercial activity for profit, which was hardly consistent with the objectives of providing welfare assistance to minors. The participation of its members on consultative boards that provided the courts with opinions on whether care orders should be made seemed hardly appropriate.", "192. Lastly, the methods used in “ Il Forteto ” appeared to be aimed at severing relations between the children and the natural family. That did not seem consistent with the spirit of fostering within the family implicit in Article 8 of the Convention.", "(iii) The Italian Government", "193. The respondent Government recognised that the relevant authorities had probably been aware of L.R.F.'s and L.G.'s convictions when they decided to place the children at “ Il Forteto ”. However, the Government emphasised that, so far as public opinion in Tuscany was concerned, the charges against the two people concerned were perceived as being part of a battle between supporters and opponents of “ Il Forteto ”. Furthermore, at the end of a laborious trial in which the Court of Cassation had intervened twice, the two men had been acquitted on ten of the thirteen counts. As regards the offences of which L.R.F. and L.G. were convicted, the Government said that a committee was being constituted to gather evidence with a view to requesting a review. Neither of them had committed any further criminal offences since their conviction in 1985.", "194. Moreover, “ Il Forteto ” enjoyed the confidence of many local and regional institutions and had been the subject matter of a number of studies. The Government cited in particular an article that had been published in Il Mulino, one of Italy's most famous publishing houses, based on research conducted on-site by psychologists, doctors, sociologists and neuropsychiatrists specialising in children. Moreover, the positive results obtained with children placed at “ Il Forteto ” had also prompted studies by institutions from other countries. Even the Florence Court of Appeal had, in its judgment of 1985, attached importance to the evidence of numerous witnesses attesting to the positive results obtained at “ Il Forteto ”. The relevant judge at the Youth Court had not noted anything negative about the community or its members. “ Il Forteto ” was also under the supervision of the Ministry of Employment, which had not noted any problems on its last inspection. Inspections were also carried out by the region and the province. In any event, minors at “ Il Forteto ” were closely supervised by the relevant social services departments and the Youth Court was kept informed at all times.", "195. Against that background, convictions dating back more than twenty years lost some of their significance.", "196. Furthermore, neither L.R.F. nor L.G. had played any role in the programmes for the rehabilitation of minors in the care of the community as, on the contrary, that task was the responsibility of the numerous social workers and specialised teams who worked under the supervision of the Youth Court. Mr G.C. and Mrs M.G. looked after the children and, with the agreement of social services, received help from Mrs M.C.-G., Mr L.G.'s wife, and Mr S. with the children's school activities (they attended a State school in the locality) and the various sessions preparing them for contact with their mother and grandmother.", "197. As regards the letters written by the elder child, the Government considered that no significance attached to the fact that one of them had been written in the presence of the foster parents and Mr R., since the child's needs had changed and he often criticised his parents, particularly his mother, for failing to help him after they had been informed of the sexual abuse inflicted on him by a family friend. As to the letter of 2 March 1999, the Government, relying in the opinion of psychologists on this point, submitted that the elder child's signature, with the addition of the surname of one of his foster parents, attested to a positive attitude by him towards the persons looking after him.", "198. It had to be stressed also that a number of items of evidence on the case file indicated that the children's psychological condition was constantly and markedly improving.", "199. The Government concluded by saying that the placement of the first applicant's children at “ Il Forteto ” had been viewed positively by all the relevant services, which enjoyed the confidence of the Youth Court. In any event, there was no reason for modifying such a complex and difficult programme, particularly bearing in mind the first applicant's lack of cooperation.", "(iv) The Commission", "200. The Commission expressed the view that the fact that the two members of the community concerned continued to hold important posts within “ Il Forteto ” was a cause for concern. It observed, however, that the first applicant's children had not been placed in the care of the community leaders concerned, added to which it was true that the offences for which they had been convicted dated back twenty years and there was nothing on the case file to allow of the conclusion that the persons concerned had committed other acts of the same type subsequently or, above all, that they had direct control over the children or a decisive influence over the foster parents. The Commission also considered that the improvement in the children's health meant that the risk that the authorities' choice of “ Il Forteto ” should prove to be manifestly contrary to the children's interests could be discounted.", "(b) The Court's assessment", "201. The Court considers it appropriate first to restate certain principles established in its earlier decisions which may help to put the difficult issues to which this part of the application gives rise into context. In particular, in the Johansen v. Norway judgment cited above, the Court said (pp. 1003-04, § 64):", "“... the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ..., often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation ...", "The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake ... Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed.”", "202. The Court notes that two of the principal leaders and co-founders of “ Il Forteto ” were convicted in 1985 by the Florence Court of Appeal of the ill-treatment and sexual abuse of three handicapped people staying in the community. They were given an amnesty in respect of an alleged offence of fraudulently holding themselves out as psychologists with diplomas from the universities of Berne and Zürich (see paragraphs 32 and 33 above). Those convictions are an established fact, since there is a full copy of the Court of Appeal's judgment, which was upheld by the Court of Cassation, in the case file. Accordingly, the Court cannot attach any weight to the Government's argument that a committee is being constituted to gather evidence (of which no details are supplied) with a view to seeking a retrial. Nor does the Court find the Government's reference to public opinion in Tuscany at the time of the trial of relevance (see paragraph 193 above).", "203. The Court is not called upon to express an opinion on “ Il Forteto ” as such or on the general quality of care which that community offers to children placed there. Nor is it for the Court to say whether or not the confidence which a number of institutions have in “ Il Forteto ” is justified. Furthermore, although the judgment of the Florence Court of Appeal in 1985 discloses information about the atmosphere and practices in “ Il Forteto ” at the end of the 1970s, that information refers to the situation in the community more than twenty years ago and the Court has no information enabling it to express a view on the situation at “ Il Forteto ” today. In any event, it is not for the Court to become involved in the debate between the supporters and opponents of “ Il Forteto ”.", "204. However, the fact that the two members of the community convicted in 1985 continue to hold positions of responsibility within the community cannot be regarded as innocuous and for practical purposes means that a detailed examination of the concrete situation of the first applicant's children is called for.", "205. The Court notes that, contrary to the assertions of the respondent Government, the evidence on the case file shows that the two leaders concerned play a very active role in respect of the first applicant's children.", "– L.R.F. attended the meeting of 8 September 1997, which ended with social services recommending to the Florence Youth Court that the first applicant's children be placed at “ Il Forteto ” (see paragraph 35 above).", "– At the interview on 15 December 1997, the elder child was accompanied by, inter alia, Mrs M.C.-G., who, as the Government recognised (see paragraphs 114 and 196 above), is in fact L.G.'s wife (see paragraph 56 above).", "– It was L.G. who signed the letter sent to the public prosecutor and the Youth Court on 7 January 1998 relating the incidents allegedly caused by the first applicant and her former husband when they attempted to see the children at “ Il Forteto ” (see paragraph 53 above).", "– On 29 June 1998 L.R.F. wrote a detailed letter on behalf of “ Il Forteto ” regarding the first applicant's children and recommending that the younger child's scheduled visits should be postponed (see paragraph 65 above).", "206. The Court considers that those facts clearly attest to the active role played by those two members of the community in the care of the first applicant's children. It has strong reservations about the fact that, under arrangements made by the public authorities for taking children into care, two people who were convicted – albeit twenty years earlier – of the ill-treatment and abuse of persons entrusted into their care at the time can play such an active role within the same community.", "207. The Court's reservations are reinforced by the fact that, as the Government acknowledged (see paragraph 193 above), the Youth Court was aware of the convictions of the two members of the community concerned when it took the decisions regarding the first applicant's children. Those reservations remain even though neither L.R.F. nor L.G. have committed any further offences since 1985 and there is nothing in the case file to indicate that they or other members of the community or persons staying there have abused or ill-treated the first applicant's children or other children staying at “ Il Forteto ”. A further contributory factor is the sexual abuse to which the elder child was subjected in the past (see paragraphs 14-19 above). The combination of those two factors (the past sexual abuse against the elder child and the criminal antecedents of L.R.F. and L.G.), fully account for the first applicant's concerns about her children's placement at “ Il Forteto ” and make them understandable from an objective standpoint, especially bearing in mind her position as a mother separated from her children.", "208. It should also be noted that the authorities have at no point explained to the first applicant why, despite the men's convictions, sending the children to “ Il Forteto ” did not pose a problem. In the Court's view, such a failure to communicate is not compatible with the duties incumbent on States to act fairly and to provide information when taking serious measures interfering in a sphere as delicate and sensitive as family life. Unless full and pertinent explanations are given by the authorities concerned, parents should not be forced, as they were in the instant case, merely to stand by while their children are entrusted into the care of a community whose leaders include people with serious previous convictions for ill-treatment and sexual abuse. The situation was compounded by the following two sets of circumstances.", "209. Firstly, some of the leaders of “ Il Forteto ”, including one of the two men convicted in 1985, appear to have contributed substantially to delaying or hindering the implementation of the decisions of the Florence Youth Court to allow contact between the first applicant and her children. Thus, it can be seen from the case file that after the decision of 9 September 1997 allowing the first applicant to see her younger son and before the Youth Court definitively decided on 15 March 1998 to make the resumption of contact with M. conditional on attending a preparatory programme, the leaders of “ Il Forteto ”, in disregard of the operative provisions of the Youth Court's decision, seem to have prevented the first applicant from seeing either child, but especially the younger son. Such conduct is, in the Court's view, unacceptable. In addition, it would appear that the letter sent by L.R.F. to the deputy public prosecutor on 29 June 1998 recommending that contact be deferred and the deputy public prosecutor's letter to the Youth Court just three days later implicitly suggesting that the scheduled visits (which the public prosecutor said he was aware of) should be postponed (see paragraphs 66 and 171 above) were not wholly unconnected.", "210. Secondly, the evidence points to the first applicant's children having been subjected to the mounting influence of the leaders at “ Il Forteto ”, including, once again, one of the two men convicted in 1985. That influence was exerted with the aim of distancing the boys, particularly the elder boy, from their mother. Thus, the Court notes in particular that the latter acknowledged to a specialist on 27 February 1999 that the letter sent to the public prosecutor's office had been written in the presence, inter alia, of a person with the same first name as L.R.F. The Court cannot express any view as to the genuineness of the assertions made in the elder child's letters. However, the presence of adults, including, in all likelihood, L.R.F., when a 12-year-old child is writing letters to the president of a court or a public prosecutor cannot objectively be regarded as of no importance. Indeed, the Court finds the changes in attitude, particularly of the elder child towards his mother, worrying (an example of such a change can be seen in the letter of 2 March 1999 – see paragraph 87 above – which was sent just four days after he had told a specialist on 27 February 1999 – see paragraph 116 above – that he would be pleased to see his mother again).", "211. In the Court's view, the facts show that the leaders of “ Il Forteto ” responsible for looking after the first applicant's children helped to deflect the implementation of the Youth Court's decisions from their intended purpose of allowing visits to take place. Moreover, it is not known who really has effective care of the children at “ Il Forteto ”, as the various people who accompany the children outside its confines do not appear merely to be assisting the foster parents as the Government asserted (see paragraph 196 above), since they are identified on a number of records as the foster parents (see paragraphs 56, 60 and 68 above). That doubt is confirmed by the evidence, which the Government did not contest, given by the two officially assigned experts (see paragraph 43 above).", "212. That situation and the relevant leaders' criminal antecedents should have prompted the Youth Court to increase its level of supervision regarding the way in which the children were being looked after at “ Il Forteto ” and the influence of the leaders concerned over the children and their relations with their mother. However, that did not occur. In practice, the leaders concerned work in a community which enjoys very substantial latitude and does not appear to be subject to effective supervision by the relevant authorities. In that connection, the Court also notes that the respondent Government failed to produce sufficient evidence to show that the six-monthly inspections by the guardianship judge, required by section 9 of Law no. 184 of 1983, did in fact take place. Indeed, the respondent Government have not produced any reports by the guardianship judge relating to such inspections.", "213. Furthermore, the negative impact on the prospects of rebuilding a relationship with the mother of the attitude and conduct of the people responsible for the children at “ Il Forteto ”, including the two leaders convicted in 1985, combines with the social services' negative attitude referred to above, and is partly responsible for depriving the first applicant of any serious prospect of one day being reunited with her children.", "214. As regards the absence of any time-limit on the children's stay at “ Il Forteto ”, experience shows that when children remain in the care of a community for a protracted period, many of them never return to a real family life outside the community. Accordingly, the Court sees no valid justification for the failure to put a time-limit on the care order concerning the first applicant's children, especially as that failure appears to contravene the relevant provisions of Italian law, namely section 4 of Law no. 184 of 1983.", "215. The fact of the matter is that the absence of any time-limit on the care order, the negative influence of the people responsible for the children at “ Il Forteto ”, coupled with the attitude and conduct of social services, are in the process of driving the first applicant's children towards an irreversible separation from their mother and long-term integration within “ Il Forteto ”. While a number of factors point to there having been a considerable improvement in the children's psychological and physical condition since the placement (see paragraphs 118-22 above), that process, which, it will be remarked, undermines both the role of the courts dealing with the case and of their decisions, presents a real danger that the relations between the first applicant and her children will be severed.", "216. Consequently, the Court considers that the authorities have failed to show the degree of prudence and vigilance required in such a delicate and sensitive situation, and have done so to the detriment not just of the first applicant's rights but also of the superior interests of the children. Accordingly, in the circumstances described above, the uninterrupted placement to date of the children at “ Il Forteto ” does not satisfy the requirements of Article 8 of the Convention.", "4. Position of the second applicant", "(a) Submissions of those appearing before the Court", "( i ) The second applicant", "217. The second applicant alleged, firstly, that section 12 of Law no. 184 of 1983, which accords priority to children being fostered with close relatives of known address, had been infringed since the possibility of the children living with her had been disregarded. In that connection, she said that G. had lived with her until 1992 and they enjoyed an excellent relationship.", "218. She added that in order to comply with the Youth Court's recommendations she had moved to Italy where she lived in her own flat, not with her daughter. Despite that fact, the authorities continued to refuse to show any confidence in her, as they considered that she was not independent of her daughter.", "(ii) The Italian Government", "219. The Italian Government, which did not deny that the relationship between the second applicant and her grandchildren came within the scope of the right to respect for family life guaranteed by Article 8, maintained that the authorities had examined the second applicant's requests and were working towards the gradual re-establishment of relations between the children and their grandmother. That said, the most recent developments, in particular, the second applicant's delay in contacting social services after the cancellation of the first preparatory session, betrayed, in the Government's view, a lack of enthusiasm for actually looking after the children. Referring to explanations given by social services, the Government also contended that priority had to be given to preparing the mother's visits.", "(iii) The Commission", "220. The Commission considered that the authorities' decision not to respond to the second applicant's request for the children to be entrusted into her care was based on relevant grounds, in particular, the fact that it would have been undesirable for the authorities to lose all direct control over the children's situation. The Commission also described the second applicant's behaviour as incoherent.", "(b) The Court's assessment", "221. The Court notes, firstly, that it was common ground that issues relating to the relations between the second applicant and her grandchildren were covered by Article 8 of the Convention. It also points out in that connection that “ 'family life', within the meaning of Article 8 includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life. 'Respect' for a family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally” (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 21, § 45).", "222. As to the second applicant's request to be given care of the children, the Court notes that section 12 of Law no. 184 of 1983 gives priority to children being placed with close members of the family living at a known address. The Court notes, however, that the evidence on the case file indicates that the second applicant would have substantial difficulty in looking after the children properly. She was unable to make herself available for an initial preparatory counselling programme prior to contact with the children, as she was living in Belgium (see paragraph 75 above). After moving to Italy, she had had to return to Belgium in the autumn of 1999 to resolve administrative problems connected with the invalidity benefit she receives for her handicapped son, who remains dependent on her (see paragraphs 110-11 above). Lastly, she was admitted to hospital in February 2000 with heart problems (see paragraph 112 above). It is difficult, moreover, for any decisive weight to be attached to the fact that the elder child lived with his grandmother in 1992: he was very young at the time and there is nothing to suggest a close and continuing relationship with the second applicant subsequently. The Court consequently considers that the authorities' decision not to entrust the children into the second applicant's care was based on reasons that remained relevant even after the second applicant's move to Italy, which in any event proved to be temporary.", "223. With regard to contact between the second applicant and the children, the Court notes that her attitude was initially characterised by a degree of incoherence. As the Commission observed, it is difficult to comprehend why the second applicant should refuse to take part in any preparation before seeing the children on the grounds that she lived too far away when she had asked to be allowed to visit twice a week.", "224. Subsequently, despite the decision of the Florence Youth Court on 22 December 1998 that contact between the second applicant and the children should start before 15 March 1999 after a preparatory programme rendered possible at that stage by the second applicant's move to Italy, she failed to get in touch but simply waited to hear from social services, even after the expiry of the time-limit fixed by the Youth Court. Nor did she consider it necessary to inform the authorities when she travelled to Belgium so that the two notices of appointment which social services did send, albeit belatedly, were to no avail.", "225. Although the Court is not persuaded by the Government's explanation for the delay in implementing the Youth Court's order concerning the second applicant (the need for social services to concentrate on preparing contact with the first applicant), it considers that the second applicant has not furnished any valid explanation for her failure to act after the time-limit expired or to inform the relevant authorities when she travelled to Belgium.", "226. In the Court's view, the second applicant's conduct betrays a lack of enthusiasm for seeing her grandchildren again, a factor which offsets the authorities' delay.", "227. In the light of the foregoing considerations, the Court concludes that there has been no violation of Article 8 of the Convention as regards the second applicant.", "D. Applicability of Article 6 § 1 and Article 14 of the Convention", "228. The applicants did not pursue before the Court their complaints of violations of Article 6 § 1 (for delays in the examination of their appeals before the domestic courts) and Article 14 of the Convention (for allegedly discriminatory treatment).", "229. In its report, the Commission considered that in the circumstances of the case, and having regard in particular to the fact that at the date of its report no concrete action had been taken following the appeal of 3 December 1997, the complaint under Article 6 § 1 about the length of the proceedings should be regarded as having been absorbed by the issues related to Article 8 of the Convention. As to Article 14, it took the view that that provision was of no relevance to the instant case, as the applicants had not alleged any actual discrimination within the meaning of that Article.", "230. In the light of its decision under Article 8, the Court sees no reason not to follow the conclusions of the Commission on this point and accordingly holds that no separate issue arises under these provisions of the Convention.", "II. ALLEGED violation of ARTICLE 3 OF THE CONVENTION", "A. Whether the treatment allegedly inflicted on the children at “ Il Forteto ” amounted to a violation of Article 3 of the Convention", "231. The first applicant complained, on behalf of her children, of a violation of Article 3 of the Convention on account of the risk that they would be subjected to improper treatment at “ Il Forteto ”. In addition, the danger that the children would again be subjected to paedophile assaults or exposed to an environment in which such assaults had been carried out in the past by at least some members of the cooperative was in itself contrary to Article 3.", "232. Article 3 of the Convention provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "233. The Government contended in particular that there was no evidence on the case file to prove that the two leaders concerned, or other members of the community or people staying there, were abusing or ill-treating the first applicant's or other children staying at the home.", "234. The Commission expressed the opinion that there was no concrete evidence in the case file apt to prove beyond all reasonable doubt that the children had been subjected to treatment contrary to Article 3.", "235. Despite the fact that some of the witness statements produced by the first applicant (see paragraphs 38-40 above) give cause for concern and the Government have not contested their veracity, the Court agrees with the opinion of the Commission, as there is nothing on the case file to indicate that the children have been subjected to treatment contrary to Article 3 of the Convention at “ Il Forteto ”. It should also be noted in that connection that the first applicant has not lodged a criminal complaint with the relevant domestic authorities. Consequently, there has been no violation of Article 3.", "B. Whether the distress caused the applicants amounted to a violation of Article 3 of the Convention", "236. In their memorial lodged with the Court on 3 March 1999, the applicants alleged that there had also been a violation of Article 3 of the Convention in that their situation, taken as a whole, had caused them suffering and distress.", "237. The Court notes that that complaint, which in substance raises no separate issue from the issues arising under Article 8 of the Convention, was not declared admissible by the Commission. The applicants are therefore estopped from raising it.", "III. ALLEGED violation of ARTICLE 2 OF PROTOCOL No. 1", "238. The first applicant complained, lastly, that her children did not have adequate schooling and that the only education they seemed to be receiving was that provided within the community. She alleged that there had therefore been a violation of Article 2 of Protocol No. 1.", "239. Article 2 of Protocol No. 1 provides:", "“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”", "240. The Government maintained that the first applicant's allegations were unfounded as the children were under constant supervision. They added that some delay in the elder child's attending school had been inevitable in view of his delicate personal circumstances and the desirability of ensuring his gradual reintegration into the school system.", "241. The Commission considered that the first applicant's fears no longer appeared founded as the case file showed, in particular, that the elder child was now attending school. The initial delay seemed, moreover, to have been warranted when the dramatic situation which he had just come through was taken into account.", "242. The Court notes that the case file shows that the first applicant's elder son began school shortly after arriving at “ Il Forteto ” (see paragraph 47 above). The younger child has just reached school age and the Court notes form the case file that he is in fact attending a nursery school (see paragraph 123 above). Furthermore, with regard to the influence of “ Il Forteto ” on the supervision and education of the children, the Court refers to its conclusions on the placement of the children within that community (see paragraphs 201-16 above).", "243. Consequently, there has been no violation of Article 2 of Protocol No. 1.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "244. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "245. The first applicant sought 100,000,000 Italian lire (ITL) in reparation for non-pecuniary damage. She also claimed ITL 700,000,000 under that head on behalf of the children for damage they had sustained. The latter claim was based, in particular, on the complaint that the authorities had not sought a solution allowing for the children to be placed with family relatives.", "246. The first applicant also claimed ITL 300,000,000 in the event of a finding by the Court that the children's placement had not been suitable.", "247. As regards pecuniary damage, the first applicant claimed ITL 15,000,000 for the loss of her former job, which she attributed to the difficulties caused by her children's situation that had meant her repeatedly having to take time off work.", "248. The respondent Government confined themselves to alleging that there was no evidence supporting the first applicant's claims. They also contended that any finding of a violation of the Convention would give rise to complex and sensitive issues, particularly before the Committee of Ministers, regarding the adoption of individual measures.", "249. The Court points out that by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see, mutatis mutandis, the Papamichalopoulos and Others v. Greece ( Article 50 ) judgment of 31 October 1995, Series A no. 330-B, pp. 58-59, § 34). Furthermore, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment.", "250. Accordingly, under Article 41 of the Convention the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied.", "251. As regards pecuniary damage, the Court considers that the first applicant has not produced concrete evidence in support of her allegations.", "252. As to the non-pecuniary damage, the Court considers that the first applicant undoubtedly sustained such damage, as the contact organised with her children to date has been inadequate, visits have been delayed, no explanation was given for the authorities' decision to place the children at “ Il Forteto ”, and the re-establishment of relations with the children was hindered by the conduct of those responsible for the children at “ Il Forteto ”. The Court further notes that since the children were taken into care on 9 September 1997, that is to say two years and ten months ago, the first applicant has seen them only twice and no contact has been arranged since 9 September 1999. It can reasonably be presumed that those circumstances taken as a whole have caused the first applicant substantial anxiety and suffering that have increased with the passage of time. Ruling on an equitable basis, the Court awards the first applicant ITL 100,000,000.", "253. The Court considers, further, that the children personally sustained damage, too, as the increasing risk of an irreversible severance of ties with, in particular, their mother and the danger that their continued placement at “ Il Forteto ” would prevent them from one day enjoying family life outside the community did not tally with the authorities' avowed aim of protecting the children's interests. The Court therefore considers that it must take that damage into account with reference to the children's position as applicants and, ruling on an equitable basis, it awards each child in person ITL 50,000,000.", "B. Costs and expenses", "254. The first applicant sought ITL 11,550,000 as reimbursement for the legal costs and experts' fees incurred in the proceedings before the Italian courts.", "255. The first applicant further claimed ITL 121,463,603 for legal fees incurred before the Commission and the Court (and produced a fee note). In that connection, the first applicant's lawyer has requested that the fees be paid directly to her. To that end, she has produced a certificate that the first applicant has paid her the sum of ITL 800,000 on account.", "256. The Government left the issue to the Court's discretion.", "257. With regard to the costs incurred before the domestic courts, the Court observes that although at least part of those costs were incurred with a view to obtaining redress of the various violations of Article 8 of the Convention, the first applicant has failed to produce any evidence in support. Her claims under that head must therefore be dismissed.", "258. As to the costs incurred before the Convention institutions, the Court considers that the case was indisputably complex. It nevertheless finds the sum requested by the first applicant's lawyer excessive. Ruling on an equitable basis and having regard to the practice of the Convention institutions on this subject, it considers a sum of ITL 26,250,000 to be reasonable. From that amount should be deducted the sum which the lawyer has received on account from the applicants (ITL 800,000) and the sums already paid to her by way of legal aid for the applicants that was granted by both the Commission and the Court. The latter amounts come to a total of 28,030.75 French francs (ITL 7,765,000). Accordingly, the balance payable to the applicant's lawyer, in accordance with her request, comes to ITL 17,685,000.", "C. Default interest", "259. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 2.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1986.", "7. On 15 March 1999 an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time, which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”.", "8. The applicant became aware of the advertisement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”.", "9. The applicant ’ s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic Internet Protocol ( IP ) address in question, regarding itself bound by the confidentiality of telecommunications as defined by law.", "10. The police then asked the Helsinki District Court ( käräjäoikeus, tingsrätten ) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act ( esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997).", "11. In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen; Act no. 450/198 7 ) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act ( laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, malicious misrepresentation was not such an offence.", "12. On 14 March 2001 the Court of Appeal ( hovioikeus, hovrätten ) upheld the decision and on 31 August 2001 the Supreme Court ( korkein oikeus, högsta domstolen ) refused leave to appeal.", "13. The person who had answered the dating advertisement and contacted the applicant was identified through his e-mail address.", "14. The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act ( henkilötietolaki, personuppgiftslagen; Act no. 523/99, which came into force on 1 June 1999 ). More specifically, the service provider had published a defamatory advertisement on its website without verifying the identity of the sender.", "V. THIRD - PARTY SUBMISSIONS", "33. The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State ’ s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States.", "34. It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, the Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "15. The Finnish Constitution Act ( Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution ( Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone ’ s right to private life is guaranteed.", "16. At the material time, Chapter 27, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 908/1974) provided:", "“A person who in a manner other than that stated above commits an act of malicious misrepresentation against another by a derogatory statement, threat or other degrading act shall be sentenced for malicious misrepresentation to a fine or to imprisonment for a maximum period of three months.", "If the malicious misrepresentation is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.”", "17. At the material time, Chapter 5a, section 3 of the Coercive Measures Act provided:", "“ Preconditions of telecommunications monitoring", "Where there is reason to suspect a person of", "( 1) an offence punishable by not less than four months ’ imprisonment;", "( 2) an offence against a computer system using a terminal device, a narcotics offence; or", "( 3) a punishable attempt to commit an offence referred to above in this section;", "the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect ’ s possession or otherwise presumed to be in his use, or temporarily to disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ...”", "18. Section 18, subsection 1(1) of the Protection of Privacy and Data Security in Telecommunications Act, which came into force on 1 July 1999 and was repealed on 1 September 2004, provided:", "“Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain:", "(1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the owner of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, Article 9 ( a ), Chapter 17, Article 13 § 2 or Chapter 24, Article 3 ( a ) of the Penal Code (Act no. 39/1889) ...”", "19. Section 48 of the Personal Data Act provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory advertisement on its website. Section 47 provides that the service provider is also liable in damages.", "20. At the material time, processing and publishing sensitive information concerning sexual behaviour on an Internet server without the subject ’ s consent was criminalised as a data protection offence in section 43 of the Personal Files Act ( Act no. 630/1995 ) and Chapter 38, Article 9 ( Act no. 578/1995) of the Penal Code, and as a data protection violation in section 44 of the Personal Files Act. Furthermore, it could have caused liability in damages by virtue of section 42 ( Act no. 471/1987) of the said Act.", "21. Section 17 of the Exercise of Freedom of Expression in Mass Media Act ( laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation; Act no. 460/2003), which came into force on 1 January 2004, provides:", "“ Release of identifying information for a network message", "At the request of an official with the power of arrest, a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the Helsinki District Court, within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.”", "III. RELEVANT INTERNATIONAL MATERIALS", "A. The Council of Europe", "22. The rapid development of telecommunications technologies in recent decades has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies. The Council of Europe recognised the need to respond adequately and rapidly to this new challenge as far back as in 1989, when the Committee of Ministers adopted Recommendation No. R (89) 9 on computer-related crime. Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer-related crimes, in 1995 the Committee of Ministers adopted Recommendation No. R (95) 13 concerning problems of criminal procedural law connected with information technology. In point 12 of the principles appended thereto, it recommended that :", "“Specific obligations should be imposed on service providers who offer telecommunication services to the public, either through public or private networks, to provide information to identify the user, when so ordered by the competent investigating authority.”", "23. The other principles relating to the obligation to cooperate with the investigating authorities stated :", "“9. Subject to legal privileges or protection, most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence. In a parallel fashion, provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority.", "10. Subject to legal privileges or protection, investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein. Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein.”", "24. In 1996, the European Committee on Crime Problems set up a committee of experts to deal with cybercrime. It was felt that, although the previous two recommendations on substantive and procedural law had not gone unheeded, only a binding international instrument could ensure the necessary efficiency in the fight against cyberspace offences. The Convention on Cybercrime was opened for signature on 23 November 2001 and came into force on 1 July 2004. It is the first and only international treaty on crimes committed via the Internet and is open to all States. The Convention requires countries to establish as criminal offences the following acts: illegal access to a computer system, illegal interception of computer data, interference with data or a computer system, misuse of devices, computer-related forgery and fraud, child pornography, and the infringement of copyright and related rights. The additional protocol to the Convention on Cybercrime, adopted in 2003, further requires the criminalisation of hate speech, xenophobia and racism. The scope of the Convention ’ s procedural provisions goes beyond the offences defined in the Convention in that it applies to any offence committed by means of a computer system :", "Article 14 – Scope of procedural provisions", "“ 1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.", "2. ... each Party shall apply the powers and procedures referred to in paragraph 1 of this Article to:", "( a) the criminal offences established in accordance with Articles 2 through 11 of this Convention;", "( b) other criminal offences committed by means of a computer system; and", "( c) the collection of evidence in electronic form of a criminal offence.", "3. ... ”", "25. The procedural powers include the following: expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data and interception of content data. Of particular relevance is the power to order a service provider to submit subscriber information relating to its services; indeed, the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment:", "Article 18 – Production order", "“ 1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:", "( a) a person in its territory to submit specified computer data in that person ’ s possession or control, which is stored in a computer system or a computer-data storage medium; and", "( b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider ’ s possession or control.", "2. The powers and procedures referred to in this Article shall be subject to Articles 14 and 15.", "3. For the purpose of this Article the term ‘ subscriber information ’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services, other than traffic or content data and by which can be established:", "( a) the type of communication service used, the technical provisions taken thereto and the period of service;", "( b) the subscriber ’ s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;", "( c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement. ”", "26. The explanatory report notes that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used ( for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the e-mail address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences (Articles 20 and 21 of the Convention on Cybercrime ).", "27. A global conference, “Cooperation against Cybercrime”, held in Strasbourg on 1-2 April 2008 adopted the “Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime ”. The purpose of the Guidelines is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues. In order to enhance cybersecurity and minimise the use of services for illegal purposes, it was considered essential that the two parties cooperate with each other in an efficient manner. The Guidelines outline practical measures to be taken by law enforcement agencies and service providers, encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime. In particular, service providers are encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law.", "B. The United Nations", "28. Out of a number of resolutions adopted in the field of cyberspace, the most pertinent for the purposes of the present case are General Assembly Resolutions 55/63 of 4 December 2000 and 56/121 of 19 December 2001 on combating the criminal misuse of information technologies. Among the measures to combat such misuse, it was recommended in Resolution 55/63 that:", "“(f) legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations;”", "29. The subsequent Resolution took note of the value of the various measures and again invited member States to take them into account.", "C. The European Union", "30. On 15 March 2006 the European Parliament and the Council of the European Union adopted Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amending the previous data - retention Directive 2002/58/EC. The aim of the Directive is to harmonise member States ’ provisions concerning the obligations of communications providers with respect to the retention of certain data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It does not apply to the content of electronic communications. The Directive requires member States to ensure that certain categories of data are retained for a period of between six months and two years. Article 5 specifies the data to be retained:", "“1. Member States shall ensure that the following categories of data are retained under this Directive:", "(a) data necessary to trace and identify the source of a communication:", "...", "(2) concerning Internet access, Internet e-mail and Internet telephony:", "...", "(iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;”", "31. Member States had until 15 September 2007 to implement the Directive. However, sixteen States, including Finland, made use of the right to postpone their application to Internet access, Internet telephony and Internet e ‑ mail until 15 March 2009.", "IV. COMPARATIVE LAW", "32. A comparative review of the national legislation of the member States of the Council of Europe shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data, including subscriber information, in response to a request by the investigating or judicial authorities, regardless of the nature of a crime. Some countries have only general provisions on the production of documents and other data, which could in practice be extended to cover also the obligation to submit specified computer and subscriber data. Several countries have not yet implemented the provisions of Article 18 of the Council of Europe Convention on Cybercrime.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION", "35. The applicant complained under Article 8 of the Convention that an invasion of his private life had taken place and that no effective remedy existed to reveal the identity of the person who had put a defamatory advertisement on the Internet in his name, contrary to Article 13 of the Convention.", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "36. The applicant submitted that Finnish legislation at the time protected the criminal, whereas the victim had no means to obtain redress or protection against a breach of privacy. Under the Penal Code the impugned act was punishable, but the Government had neglected to ensure that the Protection of Privacy and Data Security in Telecommunications Act and the Coercive Measures Act were consistent with each other. He argued that the random possibility of seeking civil damages, particularly from a third party, was not sufficient to protect his rights. He emphasised that he did not have the means to identify the person who had placed the advertisement on the Internet. While compensation might in some cases be an effective remedy, this depended on whether it was paid by the person who had infringed the victim ’ s rights, which was not the case in his application. According to the Government, new legislation was in place which, had it existed at the time of the events, would have rendered this complaint unnecessary. In the applicant ’ s view, the Government had not provided any justification for the failure to afford him this protection at the material time. He considered, therefore, that there had been breaches of Articles 8 and 13 of the Convention.", "37. The Government emphasised that in the present case the interference with the applicant ’ s private life had been committed by another individual. The impugned act was considered in domestic law as an act of malicious misrepresentation and would have been punishable as such, which had a deterrent effect. An investigation had been initiated to identify the person who had placed the advertisement on the Internet, but had proved unsuccessful due to the legislation in force at the time, which aimed to protect freedom of expression and the right to anonymous expression. The legislation protected the publisher of an anonymous Internet message so extensively that the protection also covered messages that possibly interfered with another person ’ s privacy. This side - effect of the protection was due to the fact that the concept of a message interfering with the protection of privacy was not clear cut, and therefore it had not been possible to clearly exclude such messages from the protection provided by law. There were, however, other avenues of redress available, for example the Personal Data Act, which provided protection against malicious misrepresentation in that the operator of the Internet server, on the basis of that Act ’ s provisions on criminal liability and liability in damages, was obliged to ensure that sensitive data recorded by it were processed with the consent of the data subject. Furthermore, although the personal data offence had become time-barred, the applicant still had the possibility of seeking compensation from the publisher of the advertisement. By comparison with the X and Y v. the Netherlands case ( 26 March 1985, Series A no. 91 ), in the present case liability in damages in the context of a less serious offence provided a sufficient deterrent effect. In addition, there were other mechanisms available to the applicant, such as a pre-trial police investigation, prosecution, court proceedings and damages.", "38. The Government submitted that it was important to look at the legislative situation at the material time in its social context, when a rapid increase in the use of the Internet was just beginning. The current legislation, the Exercise of Freedom of Expression in Mass Media Act (sections 2 and 17), which took effect on 1 January 2004, gives the police more extensive powers to break the protection of the publisher of an anonymous Internet message for the purposes of criminal investigations. The new legislation reflects the legislator ’ s reaction to social development where increased use – and at the same time abuse – of the Internet has required a redefinition of the limits of protection. Thus, because of a changed situation in society, subsequent legislation has further strengthened the protection of private life in respect of freedom of expression, and especially the protection of the publishers of anonymous Internet messages.", "39. However, most essential in the present case was that even the legislation in force at the material time provided the applicant with means of action against the distribution of messages invading his privacy, in that the operator of the Internet server on which the message was published was obliged by law to verify that the person in question had consented to the processing of sensitive information concerning him or her on the operator ’ s server. This obligation was bolstered by criminal liability and liability in damages. Thus, the legislation provided the applicant with sufficient protection of privacy and effective legal remedies.", "B. The Court ’ s assessment", "40. The Court notes at the outset that the applicant, a minor of 12 years at the time, was the subject of an advertisement of a sexual nature on an Internet dating site. The identity of the person who had placed the advertisement could not, however, be obtained from the Internet service provider due to the legislation in place at the time.", "41. There is no dispute as to the applicability of Article 8: the facts underlying the application concern a matter of “ private life ”, a concept which covers the physical and moral integrity of the person ( see X and Y v. the Netherlands, cited above, § 22). Although this case is seen in domestic law terms as one of malicious misrepresentation, the Court would prefer to highlight these particular aspects of the notion of private life, having regard to the potential threat to the applicant ’ s physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age.", "42. The Court reiterates that, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ).", "43. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State ’ s margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions ( see X and Y v. the Netherlands, cited above, §§ 23 ‑ 24 and 27; August v. the United Kingdom ( dec. ), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII ).", "44. The limits of the national authorities ’ margin of appreciation are nonetheless circumscribed by the Convention provisions. In interpreting them, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI).", "45. The Court considers that, while this case might not attain the seriousness of X and Y v. the Netherlands, where a breach of Article 8 arose from the lack of an effective criminal sanction for the rape of a girl with disabilities, it cannot be treated as trivial. The act was criminal, involved a minor and made him a target for approaches by paedophiles (see, also, paragraph 41 above in this connection).", "46. The Government conceded that, at the time, the operator of the Internet server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of malicious misrepresentation and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the Court notes that it has not excluded the possibility that the State ’ s positive obligations under Article 8 to safeguard the individual ’ s physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998-VIII). For the Court, States have a positive obligation inherent in Article 8 of the Convention to criminalise offences against the person, including attempted offences, and to reinforce the deterrent effect of criminalisation by applying criminal ‑ law provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). Where the physical and moral welfare of a child is threatened, such injunction assumes even greater importance. The Court notes in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 64, Reports 1996 ‑ IV ).", "47. As to the Government ’ s argument that the applicant had the possibility to obtain damages from a third party, namely the service provider, the Court considers that it was not sufficient in the circumstances of this case. It is plain that both the public interest and the protection of the interests of victims of crimes committed against their physical or psychological well-being require the availability of a remedy enabling the actual offender to be identified and brought to justice, in the instant case the person who placed the advertisement in the applicant ’ s name, and the victim to obtain financial reparation from him.", "48. The Court accepts that, in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities or, as in this case, the legislator. Another relevant consideration is the need to ensure that powers to control, prevent and investigate crime are exercised in a manner which fully respects the due process and other guarantees which legitimately place restraints on criminal investigations and bringing offenders to justice, including the guarantees contained in Articles 8 and 10 of the Convention, guarantees which offenders themselves can rely on. The Court is sensitive to the Government ’ s argument that any legislative shortcoming should be seen in its social context at the time. The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes (see paragraphs 22 and 24 above). Also, the widespread problem of child sexual abuse had become well known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet.", "49. The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case, such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not, however, in place at the material time, with the result that Finland ’ s positive obligation with respect to the applicant could not be discharged. This deficiency was later addressed. However, the mechanisms introduced by the Exercise of Freedom of Expression in Mass Media Act (see paragraph 21 above) came too late for the applicant.", "50. The Court finds that there has been a violation of Article 8 of the Convention in the present case.", "51. Having regard to the finding relating to Article 8, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 of the Convention (see, among other authorities, Sallinen and Others v. Finland, no. 5 0882/99, § § 102 and 110, 27 September 2005, and Copland v. the United Kingdom, no. 62617/00, §§ 50-51, ECHR 2007 ‑ I ).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "52. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "53. Under the head of non-pecuniary damage, the applicant claimed 3, 5 00 euros (EUR) for suffering.", "54. The Government submitted that the award should not exceed EUR 2,500.", "55. The Court finds it established that the applicant must have suffered non-pecuniary damage. It considers that sufficient just satisfaction would not be provided solely by the finding of a violation and that compensation has thus to be awarded. Deciding on an equitable basis, it awards the applicant EUR 3,000 under this head.", "B. Costs and expenses", "56. The applicant claimed EUR 2,500 for costs incurred during the national proceedings and the proceedings before the Court.", "57. The Government questioned whether the applicant had furnished the requisite documentation.", "58. The Court notes that no documentation as required by Rule 60 of the Rules of Court has been submitted. These claims must therefore be rejected.", "C. Default interest", "59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1986.", "7. On 15 March 1999 an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time, which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”.", "8. The applicant became aware of the advertisement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”.", "9. The applicant ’ s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic Internet Protocol ( IP ) address in question, regarding itself bound by the confidentiality of telecommunications as defined by law.", "10. The police then asked the Helsinki District Court ( käräjäoikeus, tingsrätten ) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act ( esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997).", "11. In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen; Act no. 450/198 7 ) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act ( laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, malicious misrepresentation was not such an offence.", "12. On 14 March 2001 the Court of Appeal ( hovioikeus, hovrätten ) upheld the decision and on 31 August 2001 the Supreme Court ( korkein oikeus, högsta domstolen ) refused leave to appeal.", "13. The person who had answered the dating advertisement and contacted the applicant was identified through his e-mail address.", "14. The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act ( henkilötietolaki, personuppgiftslagen; Act no. 523/99, which came into force on 1 June 1999 ). More specifically, the service provider had published a defamatory advertisement on its website without verifying the identity of the sender.", "V. THIRD - PARTY SUBMISSIONS", "33. The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State ’ s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States.", "34. It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, the Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "15. The Finnish Constitution Act ( Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution ( Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone ’ s right to private life is guaranteed.", "16. At the material time, Chapter 27, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 908/1974) provided:", "“A person who in a manner other than that stated above commits an act of malicious misrepresentation against another by a derogatory statement, threat or other degrading act shall be sentenced for malicious misrepresentation to a fine or to imprisonment for a maximum period of three months.", "If the malicious misrepresentation is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.”", "17. At the material time, Chapter 5a, section 3 of the Coercive Measures Act provided:", "“ Preconditions of telecommunications monitoring", "Where there is reason to suspect a person of", "( 1) an offence punishable by not less than four months ’ imprisonment;", "( 2) an offence against a computer system using a terminal device, a narcotics offence; or", "( 3) a punishable attempt to commit an offence referred to above in this section;", "the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect ’ s possession or otherwise presumed to be in his use, or temporarily to disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ...”", "18. Section 18, subsection 1(1) of the Protection of Privacy and Data Security in Telecommunications Act, which came into force on 1 July 1999 and was repealed on 1 September 2004, provided:", "“Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain:", "(1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the owner of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, Article 9 ( a ), Chapter 17, Article 13 § 2 or Chapter 24, Article 3 ( a ) of the Penal Code (Act no. 39/1889) ...”", "19. Section 48 of the Personal Data Act provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory advertisement on its website. Section 47 provides that the service provider is also liable in damages.", "20. At the material time, processing and publishing sensitive information concerning sexual behaviour on an Internet server without the subject ’ s consent was criminalised as a data protection offence in section 43 of the Personal Files Act ( Act no. 630/1995 ) and Chapter 38, Article 9 ( Act no. 578/1995) of the Penal Code, and as a data protection violation in section 44 of the Personal Files Act. Furthermore, it could have caused liability in damages by virtue of section 42 ( Act no. 471/1987) of the said Act.", "21. Section 17 of the Exercise of Freedom of Expression in Mass Media Act ( laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation; Act no. 460/2003), which came into force on 1 January 2004, provides:", "“ Release of identifying information for a network message", "At the request of an official with the power of arrest, a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the Helsinki District Court, within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.”", "III. RELEVANT INTERNATIONAL MATERIALS", "A. The Council of Europe", "22. The rapid development of telecommunications technologies in recent decades has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies. The Council of Europe recognised the need to respond adequately and rapidly to this new challenge as far back as in 1989, when the Committee of Ministers adopted Recommendation No. R (89) 9 on computer-related crime. Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer-related crimes, in 1995 the Committee of Ministers adopted Recommendation No. R (95) 13 concerning problems of criminal procedural law connected with information technology. In point 12 of the principles appended thereto, it recommended that :", "“Specific obligations should be imposed on service providers who offer telecommunication services to the public, either through public or private networks, to provide information to identify the user, when so ordered by the competent investigating authority.”", "23. The other principles relating to the obligation to cooperate with the investigating authorities stated :", "“9. Subject to legal privileges or protection, most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence. In a parallel fashion, provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority.", "10. Subject to legal privileges or protection, investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein. Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein.”", "24. In 1996, the European Committee on Crime Problems set up a committee of experts to deal with cybercrime. It was felt that, although the previous two recommendations on substantive and procedural law had not gone unheeded, only a binding international instrument could ensure the necessary efficiency in the fight against cyberspace offences. The Convention on Cybercrime was opened for signature on 23 November 2001 and came into force on 1 July 2004. It is the first and only international treaty on crimes committed via the Internet and is open to all States. The Convention requires countries to establish as criminal offences the following acts: illegal access to a computer system, illegal interception of computer data, interference with data or a computer system, misuse of devices, computer-related forgery and fraud, child pornography, and the infringement of copyright and related rights. The additional protocol to the Convention on Cybercrime, adopted in 2003, further requires the criminalisation of hate speech, xenophobia and racism. The scope of the Convention ’ s procedural provisions goes beyond the offences defined in the Convention in that it applies to any offence committed by means of a computer system :", "Article 14 – Scope of procedural provisions", "“ 1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.", "2. ... each Party shall apply the powers and procedures referred to in paragraph 1 of this Article to:", "( a) the criminal offences established in accordance with Articles 2 through 11 of this Convention;", "( b) other criminal offences committed by means of a computer system; and", "( c) the collection of evidence in electronic form of a criminal offence.", "3. ... ”", "25. The procedural powers include the following: expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data and interception of content data. Of particular relevance is the power to order a service provider to submit subscriber information relating to its services; indeed, the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment:", "Article 18 – Production order", "“ 1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:", "( a) a person in its territory to submit specified computer data in that person ’ s possession or control, which is stored in a computer system or a computer-data storage medium; and", "( b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider ’ s possession or control.", "2. The powers and procedures referred to in this Article shall be subject to Articles 14 and 15.", "3. For the purpose of this Article the term ‘ subscriber information ’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services, other than traffic or content data and by which can be established:", "( a) the type of communication service used, the technical provisions taken thereto and the period of service;", "( b) the subscriber ’ s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;", "( c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement. ”", "26. The explanatory report notes that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used ( for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the e-mail address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences (Articles 20 and 21 of the Convention on Cybercrime ).", "27. A global conference, “Cooperation against Cybercrime”, held in Strasbourg on 1-2 April 2008 adopted the “Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime ”. The purpose of the Guidelines is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues. In order to enhance cybersecurity and minimise the use of services for illegal purposes, it was considered essential that the two parties cooperate with each other in an efficient manner. The Guidelines outline practical measures to be taken by law enforcement agencies and service providers, encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime. In particular, service providers are encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law.", "B. The United Nations", "28. Out of a number of resolutions adopted in the field of cyberspace, the most pertinent for the purposes of the present case are General Assembly Resolutions 55/63 of 4 December 2000 and 56/121 of 19 December 2001 on combating the criminal misuse of information technologies. Among the measures to combat such misuse, it was recommended in Resolution 55/63 that:", "“(f) legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations;”", "29. The subsequent Resolution took note of the value of the various measures and again invited member States to take them into account.", "C. The European Union", "30. On 15 March 2006 the European Parliament and the Council of the European Union adopted Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amending the previous data - retention Directive 2002/58/EC. The aim of the Directive is to harmonise member States ’ provisions concerning the obligations of communications providers with respect to the retention of certain data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It does not apply to the content of electronic communications. The Directive requires member States to ensure that certain categories of data are retained for a period of between six months and two years. Article 5 specifies the data to be retained:", "“1. Member States shall ensure that the following categories of data are retained under this Directive:", "(a) data necessary to trace and identify the source of a communication:", "...", "(2) concerning Internet access, Internet e-mail and Internet telephony:", "...", "(iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;”", "31. Member States had until 15 September 2007 to implement the Directive. However, sixteen States, including Finland, made use of the right to postpone their application to Internet access, Internet telephony and Internet e ‑ mail until 15 March 2009.", "IV. COMPARATIVE LAW", "32. A comparative review of the national legislation of the member States of the Council of Europe shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data, including subscriber information, in response to a request by the investigating or judicial authorities, regardless of the nature of a crime. Some countries have only general provisions on the production of documents and other data, which could in practice be extended to cover also the obligation to submit specified computer and subscriber data. Several countries have not yet implemented the provisions of Article 18 of the Council of Europe Convention on Cybercrime.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION", "35. The applicant complained under Article 8 of the Convention that an invasion of his private life had taken place and that no effective remedy existed to reveal the identity of the person who had put a defamatory advertisement on the Internet in his name, contrary to Article 13 of the Convention.", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "36. The applicant submitted that Finnish legislation at the time protected the criminal, whereas the victim had no means to obtain redress or protection against a breach of privacy. Under the Penal Code the impugned act was punishable, but the Government had neglected to ensure that the Protection of Privacy and Data Security in Telecommunications Act and the Coercive Measures Act were consistent with each other. He argued that the random possibility of seeking civil damages, particularly from a third party, was not sufficient to protect his rights. He emphasised that he did not have the means to identify the person who had placed the advertisement on the Internet. While compensation might in some cases be an effective remedy, this depended on whether it was paid by the person who had infringed the victim ’ s rights, which was not the case in his application. According to the Government, new legislation was in place which, had it existed at the time of the events, would have rendered this complaint unnecessary. In the applicant ’ s view, the Government had not provided any justification for the failure to afford him this protection at the material time. He considered, therefore, that there had been breaches of Articles 8 and 13 of the Convention.", "37. The Government emphasised that in the present case the interference with the applicant ’ s private life had been committed by another individual. The impugned act was considered in domestic law as an act of malicious misrepresentation and would have been punishable as such, which had a deterrent effect. An investigation had been initiated to identify the person who had placed the advertisement on the Internet, but had proved unsuccessful due to the legislation in force at the time, which aimed to protect freedom of expression and the right to anonymous expression. The legislation protected the publisher of an anonymous Internet message so extensively that the protection also covered messages that possibly interfered with another person ’ s privacy. This side - effect of the protection was due to the fact that the concept of a message interfering with the protection of privacy was not clear cut, and therefore it had not been possible to clearly exclude such messages from the protection provided by law. There were, however, other avenues of redress available, for example the Personal Data Act, which provided protection against malicious misrepresentation in that the operator of the Internet server, on the basis of that Act ’ s provisions on criminal liability and liability in damages, was obliged to ensure that sensitive data recorded by it were processed with the consent of the data subject. Furthermore, although the personal data offence had become time-barred, the applicant still had the possibility of seeking compensation from the publisher of the advertisement. By comparison with the X and Y v. the Netherlands case ( 26 March 1985, Series A no. 91 ), in the present case liability in damages in the context of a less serious offence provided a sufficient deterrent effect. In addition, there were other mechanisms available to the applicant, such as a pre-trial police investigation, prosecution, court proceedings and damages.", "38. The Government submitted that it was important to look at the legislative situation at the material time in its social context, when a rapid increase in the use of the Internet was just beginning. The current legislation, the Exercise of Freedom of Expression in Mass Media Act (sections 2 and 17), which took effect on 1 January 2004, gives the police more extensive powers to break the protection of the publisher of an anonymous Internet message for the purposes of criminal investigations. The new legislation reflects the legislator ’ s reaction to social development where increased use – and at the same time abuse – of the Internet has required a redefinition of the limits of protection. Thus, because of a changed situation in society, subsequent legislation has further strengthened the protection of private life in respect of freedom of expression, and especially the protection of the publishers of anonymous Internet messages.", "39. However, most essential in the present case was that even the legislation in force at the material time provided the applicant with means of action against the distribution of messages invading his privacy, in that the operator of the Internet server on which the message was published was obliged by law to verify that the person in question had consented to the processing of sensitive information concerning him or her on the operator ’ s server. This obligation was bolstered by criminal liability and liability in damages. Thus, the legislation provided the applicant with sufficient protection of privacy and effective legal remedies.", "B. The Court ’ s assessment", "40. The Court notes at the outset that the applicant, a minor of 12 years at the time, was the subject of an advertisement of a sexual nature on an Internet dating site. The identity of the person who had placed the advertisement could not, however, be obtained from the Internet service provider due to the legislation in place at the time.", "41. There is no dispute as to the applicability of Article 8: the facts underlying the application concern a matter of “ private life ”, a concept which covers the physical and moral integrity of the person ( see X and Y v. the Netherlands, cited above, § 22). Although this case is seen in domestic law terms as one of malicious misrepresentation, the Court would prefer to highlight these particular aspects of the notion of private life, having regard to the potential threat to the applicant ’ s physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age.", "42. The Court reiterates that, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ).", "43. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State ’ s margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions ( see X and Y v. the Netherlands, cited above, §§ 23 ‑ 24 and 27; August v. the United Kingdom ( dec. ), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII ).", "44. The limits of the national authorities ’ margin of appreciation are nonetheless circumscribed by the Convention provisions. In interpreting them, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI).", "45. The Court considers that, while this case might not attain the seriousness of X and Y v. the Netherlands, where a breach of Article 8 arose from the lack of an effective criminal sanction for the rape of a girl with disabilities, it cannot be treated as trivial. The act was criminal, involved a minor and made him a target for approaches by paedophiles (see, also, paragraph 41 above in this connection).", "46. The Government conceded that, at the time, the operator of the Internet server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of malicious misrepresentation and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the Court notes that it has not excluded the possibility that the State ’ s positive obligations under Article 8 to safeguard the individual ’ s physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998-VIII). For the Court, States have a positive obligation inherent in Article 8 of the Convention to criminalise offences against the person, including attempted offences, and to reinforce the deterrent effect of criminalisation by applying criminal ‑ law provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). Where the physical and moral welfare of a child is threatened, such injunction assumes even greater importance. The Court notes in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 64, Reports 1996 ‑ IV ).", "47. As to the Government ’ s argument that the applicant had the possibility to obtain damages from a third party, namely the service provider, the Court considers that it was not sufficient in the circumstances of this case. It is plain that both the public interest and the protection of the interests of victims of crimes committed against their physical or psychological well-being require the availability of a remedy enabling the actual offender to be identified and brought to justice, in the instant case the person who placed the advertisement in the applicant ’ s name, and the victim to obtain financial reparation from him.", "48. The Court accepts that, in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities or, as in this case, the legislator. Another relevant consideration is the need to ensure that powers to control, prevent and investigate crime are exercised in a manner which fully respects the due process and other guarantees which legitimately place restraints on criminal investigations and bringing offenders to justice, including the guarantees contained in Articles 8 and 10 of the Convention, guarantees which offenders themselves can rely on. The Court is sensitive to the Government ’ s argument that any legislative shortcoming should be seen in its social context at the time. The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes (see paragraphs 22 and 24 above). Also, the widespread problem of child sexual abuse had become well known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet.", "49. The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case, such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not, however, in place at the material time, with the result that Finland ’ s positive obligation with respect to the applicant could not be discharged. This deficiency was later addressed. However, the mechanisms introduced by the Exercise of Freedom of Expression in Mass Media Act (see paragraph 21 above) came too late for the applicant.", "50. The Court finds that there has been a violation of Article 8 of the Convention in the present case.", "51. Having regard to the finding relating to Article 8, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 of the Convention (see, among other authorities, Sallinen and Others v. Finland, no. 5 0882/99, § § 102 and 110, 27 September 2005, and Copland v. the United Kingdom, no. 62617/00, §§ 50-51, ECHR 2007 ‑ I ).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "52. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "53. Under the head of non-pecuniary damage, the applicant claimed 3, 5 00 euros (EUR) for suffering.", "54. The Government submitted that the award should not exceed EUR 2,500.", "55. The Court finds it established that the applicant must have suffered non-pecuniary damage. It considers that sufficient just satisfaction would not be provided solely by the finding of a violation and that compensation has thus to be awarded. Deciding on an equitable basis, it awards the applicant EUR 3,000 under this head.", "B. Costs and expenses", "56. The applicant claimed EUR 2,500 for costs incurred during the national proceedings and the proceedings before the Court.", "57. The Government questioned whether the applicant had furnished the requisite documentation.", "58. The Court notes that no documentation as required by Rule 60 of the Rules of Court has been submitted. These claims must therefore be rejected.", "C. Default interest", "59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born on 22 April 1996 and 13 June 1992 respectively and live in Geneva.", "6. On 17 September 2010, the applicants, who are cousins, contracted a religious marriage in Iran, where they were residing illegally. At the time, the first applicant was 14 years old and the second applicant 18 years old. Their religious marriage was not registered in Iran.", "7. On 18 September 2011 the applicants applied for asylum in Switzerland, which they had entered from Italy on an unspecified date. Both applicants had been already registered as asylum seekers in Italy.", "8. On 8 December 2011 and 26 March 2012 the Federal Office of Migration (the “FOM”) rejected the applicants ’ asylum request, considering that Italy was the responsible State by virtue of Regulation no. 343/2003/EC (the “Dublin Regulation”).", "9. On 19 December 2011, the first applicant had a legal guardian appointed by the Guardianship Court ( Tribunal tutélaire, now Tribunal de protection de l ’ adulte et de l ’ enfant ).", "10. On 20 March 2012 the Federal Administrative Court (the “FAC”) rejected the second applicant ’ s appeal against the FOM ’ s decision. The FAC noted that the applicants had failed to submit a certificate of marriage and that in any event their alleged religious marriage could not be validly recognised in Switzerland, pursuant to Article 45 of the Federal Act on Civil International Law, because it was illegal under the relevant provision of the Afghan Civil Code, which contained an absolute prohibition on marriage for women under 15 years of age, while the first applicant was 14 years old. In any case, independently of the applicable Afghan law, the applicant ’ s marriage was manifestly incompatible with Swiss ordre public, since having sexual intercourse with a child under the age of 16 was a crime under Article 187-1 of the Swiss Criminal Code. The first applicant could therefore not be qualified as a member of the second applicant ’ s family under the Dublin Regulation and the applicants could not claim any right to family life under Article 8 of the Convention.", "The decision against the first applicant entered into force on 5 April 2012, as the second applicant had not appealed against it.", "11. On 3 May 2012 the FOM decided to reexamine the first applicant ’ s asylum request in Switzerland. Following this decision, the second applicant requested that his own asylum request be also reexamined in order to preserve the family unity. The second applicant ’ s request was rejected by the FOM on procedural grounds : as the applicant ’ s claim was deemed without prospects of success, he had been asked an advance judicial fee of 600 Swiss Francs (“CHF”), which he had failed to pay.", "12. The second applicant was expelled to Italy on 4 September 2012. However, on 7 September 2012 he returned illegally to Switzerland, where he could see the first applicant “intermittently”, in the applicants ’ own words.", "13. On 18 September 2012 the applicants lodged the present application before this Court.", "14. On 21 December 2012 the second applicant again requested the reexamination of his asylum request, which was rejected by the FOM on 10 January 2013 because the second applicant had again failed to pay the CHF 600 advance judicial fee.", "15. On 18 March 2013, the applicants requested the recognition of their religious marriage in Switzerland. The first applicant was then 16 years and 11 months old.", "16. On 28 November 2013, the FAC examined the second applicant ’ s appeal against the FOM ’ s decision of 10 January 2013 and ruled in favour of the second applicant. The FAC considered that the FOM had wrongly imposed on the second applicant the payment of an advance judicial fee because by then the first applicant was 17 years old and the applicants could therefore claim to be a family within the meaning of Article 8 of the Convention as interpreted by this Court and by the Swiss Federal Tribunal.", "17. On 20 February 2014, the Government requested that the application be struck out of the list of cases pursuant to Article 37 § 1 (c) of the Convention.", "18. On 1 April 2014, in reply to the Government ’ s request, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation constituted a violation of the applicants ’ right to respect for their family life.", "19. On 2 June 2014, the Court of First Instance of the Canton of Geneva recognised the validity of the applicants ’ religious marriage contracted in Iran.", "20. On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014.", "21. On 23 June 2015, referring to their submissions of 1 st April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland.", "III. THE ITALIAN CONTEXT", "26. A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum seekers in Italy is also set out in the Tarakhel judgment ( §§ 36-50)." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Federal Act on International Private Law ( Loi fédérale sur le droit international privé ( LDIP ) du 18 décembre 1987 ) as in force in 2012", "Article 17", "“ The implementation of provisions of foreign law shall be excluded where the result would be incompatible with Swiss ordre public. ”", "Article 27", "“ 1 The recognition of a foreign decision shall be rejected in Switzerland if it is manifestly incompatible with Swiss ordre public. ”", "Article 45", "“ 1 A marriage validly celebrated abroad shall be recognised in Switzerland. ”", "B. Swiss Criminal Code", "Article 187", "“ 1 Any person who engages in a sexual act with a child under 16 years of age, or incites a child to commit such an activity, or involves a child in a sexual act, is liable to a custodial sentence not exceeding five years or to a pecuniary penalty.”", "C. Relevant domestic law with regard to the Dublin Regulation", "22. The relevant domestic law is set out in the Court ’ s judgment in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 22-23 and 26-27, 4 November 2014).", "23. The relevant instruments and principles of European Union law are set out in the same judgment (§§ 28-36).", "24. In particular, the Court recalls that the Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (OJ L 53 of 27 February 2008). The Dublin Regulation has since been replaced by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (the “Dublin III Regulation”), which is designed to make the Dublin system more effective and to strengthen the legal safeguards for persons subject to the Dublin procedure.", "25. The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014.", "THE LAW", "I. CHARACTERISATION OF THE APPLICANTS ’ CLAIMS", "27. The applicants alleged that the expulsion of the second applicant to Italy in 2012 violated Articles 3 and 8 of the Convention. They alleged that if the second applicant were to be expelled again there would be another violation of Articles 3 and 8. Relying on Article 13 of the Convention, the applicants also claimed that they did not have an effective remedy at national level as the FAC did not take into account their family relationship when upholding the administrative decision not to examine the second applicant ’ s asylum request on the merits.", "28. On 1 April 2014, in reply to the Government ’ s request to strike the application out of the list of cases following the FAC ’ s decision of 28 November 2013, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation, which had had serious consequences on the applicants ’ health, in particular the first applicant ’ s, constituted a violation of the applicants ’ rights to respect of their family life ( see paragraph 18 above).", "On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014 (see paragraph 20 above).", "On 23 June 2015, referring to their submissions of 1 April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland ( see paragraph 21 above).", "29. In the light of this information, the Court considers that the applicants only wished to maintain their application with regard to the alleged past violation of Article 8 relating to the expulsion of the second applicant to Italy on 4 September 2012, which included their initial claims under Article 3, and did not wish to pursue the remaining part.", "The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require the further examination of the remaining part of the application by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v. Poland, no. 32220/96, Commission decision of 23 April 1998, unreported; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005).", "30. It follows that the remaining part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE REMOVAL OF THE SECOND APPLICANT TO ITALY", "31. Under Article 8 of the Convention the applicants alleged that the removal of the second applicant to Italy on 4 September 2012 had violated their right to respect for their family life. Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”", "A. Admissibility", "32. The Court notes that the complaint under Article 8 raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no other grounds for declaring this part of the application inadmissible. It must therefore be declared admissible ( see, mutatis mutandis, A.S. v. Switzerland, no. 39350/13, § 40, 30 June 2015).", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "33. The applicants stressed that the removal of the second applicant to Italy on 4 September 2012 had violated their right to respect for their family life as a married couple. In their view, in its decisions of 20 March 2012 and 3 May 2012, the FAC had wrongly refused to recognise their married status. In support of this argument, they referred to the FAC ’ s subsequent decision of 28 November 2013, which did recognise that the applicants ’ relationship fell within the definition of “family” for the purposes of domestic law and the Dublin Regulation and should therefore benefit from a joint asylum procedure.", "(b) The Government", "34. The Government considered that at the time of the administrative and judicial decisions leading to the removal of the second applicant to Italy, on 4 September 2012, the applicants could not be considered as legally married. On the one hand, there was no evidence that such marriage had ever been contracted and, on the other hand, there was a compelling interest in not recognising a marriage between an adult and a 14 year old child.", "35. The Government also stressed that the reason why the applicants ’ asylum procedures were treated separately was because the first applicant had failed to appeal against the FOM ’ s initial decision not to examine her asylum application on the merits, while the second applicant had appealed.", "36. The Government finally recalled that the FAC ultimately did take into account the evolution of the applicant ’ s situation after the lodging of the present request and adapted their decisions accordingly : the applicants were granted refugee status and their religious marriage was duly recognised.", "37. Therefore, the Government requested that the Court strike out the application under Article 37 § 1 (c) of the Convention.", "2. The Court ’ s assessment", "38. The Court recalls that where a Contracting State tolerates the presence of an alien on its territory, thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country ’ s society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow an alien to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them ( see Jeunesse v. the Netherlands [GC], no. 12738/10, § 103, 3 October 2014 ).", "The same applies to cases of asylum seekers whose presence on the territory of a Contracting State is tolerated by the national authorities on their own motion or accepted in compliance with their international obligations ( see A.S. v. Switzerland, no. 39350/13, § 44, 30 June 2015).", "39. Like Jeunesse (§ 104) and A.S. v. Switzerland (§ 45), the present case may be distinguished from cases concerning “settled migrants” as this notion has been used in the Court ’ s case-law, namely, persons who have already been formally granted a right of residence in a host country. A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8. In such cases, the Court will examine whether the interference is justified under the second paragraph of Article 8. In this connection, it will have regard to the various criteria which it has identified in its case-law in order to determine whether a fair balance has been struck between the grounds underlying the authorities ’ decision to withdraw the right of residence and the Article 8 rights of the individual concerned (ibid., § 45).", "40. As the factual and legal situation of a settled migrant and that of an alien seeking admission, whether or not as an asylum seeker, are not the same, the criteria developed in the Court ’ s case-law for assessing whether the withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant. Rather, the question to be examined in the present case is whether, having regard to the circumstances as a whole, the Swiss authorities were under a duty pursuant to Article 8 to grant the second applicant a residence permit in Switzerland, whether or not as an asylum seeker, thus enabling him to exercise any family life he might have established on Swiss territory with the first applicant, whom they had decided not to remove to Italy ( see, mutatis mutandis, A.S. v. Switzerland, cited above, § 46 ). The instant case thus concerns not only family life but also immigration lato sensu. For this reason, it is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention ( see, mutatis mutandis, ibid. , § 46 ).", "41. The Court recalls that in a case which concerns family life as well as immigration, the extent of a State ’ s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion ( see Jeunesse, cited above, § 107; A.S. v. Switzerland, cited above, § 47 ).", "42. The Court reiterates that the notion of “ family life ” in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships (see, among many other authorities, Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31; Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C; X, Y and Z v. the United Kingdom, 22 April 1997, § 36, Reports of Judgments and Decisions 1997 ‑ II; and Emonet and Others v. Switzerland, no. 39051/03, § 34, ECHR 2007 ‑ XIV). When deciding whether a relationship can be said to amount to “ family life ”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means ( see Van der Heijden v. the Netherlands [GC], no. 42857/05, § 50, 3 April 2012).", "43. In the present case, the second applicant was removed to Italy on 4 September 2012, while the first applicant was allowed to stay in Switzerland for the duration of her asylum application. Before the FAC, the second applicant argued that he should not be separated from the first applicant as they were religiously married. In its decisions of 20 March 2012 and 3 May 2012, the FAC considered that the applicants ’ religious marriage was invalid under Afghan law and in any case was incompatible with Swiss ordre public due to the first applicant ’ s young age ( see paragraphs 10 and 11 above).", "44. The Court does not see any reason to depart from the findings of the FAC in this respect. Article 8 of the Convention cannot be interpreted as imposing on any State party to the Convention an obligation to recognise a marriage, religious or otherwise, contracted by a 14 year old child. Nor can such obligation be derived from Article 12 of the Convention, which reads as follows: “ [m]en and women of marriageable age have a right to marry and found a family, according to the national laws governing the existence of this right”. Article 12 expressly provides for regulation of marriage by national law, and given the sensitive moral choices concerned and the importance to be attached to the protection of children and the fostering of secure family environments, this Court must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society ( see B. and L. v. the United Kingdom, no. 36536/02, § 36, 13 September 2005).", "At the time of the removal of the second applicant to Italy, the national authorities were therefore justified in considering that the applicants were not married, all the more so, given the fact that the applicants had not yet taken any steps to seek recognition of their religious marriage in Switzerland.", "45. In any case, even if the relationship existing between the applicants in 2012 had qualified as “family life” under Article 8 of the Convention (see and contrast with Şerife Yiğit v. Turkey [GC], no. 3976/05, §§ 97 and 98, 2 November 2010), the Court notes that the second applicant returned to Switzerland only three days after having been removed to Italy, and was not expelled thereafter although his stay in Switzerland was illegal. He was de facto allowed to remain in Switzerland and to request a re-examination of his asylum application, which eventually succeeded.", "The Court also notes that the applicants did not argue that the first applicant, who was not a Swiss resident and was only tolerated on Swiss territory for the purposes of her asylum application, was ever prevented from joining the second applicant after the latter had been expelled to Italy.", "46. Bearing in mind the margin of appreciation afforded to States in immigration matters, the Court finds that a fair balance has been struck between the competing interests at stake, namely the personal interests of the applicants in remaining together in Switzerland while waiting for the outcome of the first applicant ’ s asylum application, on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration ( see, mutatis mutandis, A.S. v. Switzerland, § 50).", "47. In view of the above considerations, the Court finds that the implementation of the decision to remove the second applicant to Italy did not give rise to a violation of Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1978 and lives in Paris.", "10. She arrived in France on 26 January 1994, aged 15 years and 7 months, with Mrs D., a French national of Togolese origin. She had a passport and a tourist visa.", "11. It had been agreed that she would work at Mrs D.'s home until the cost of her air ticket had been reimbursed and that Mrs D. would attend to her immigration status and find her a place at school. In reality, the applicant became an unpaid housemaid for Mr and Mrs D. and her passport was taken from her.", "12. In the second half of 1994, Mrs D. “lent” the applicant to Mr and Mrs B., who had two small children, so that she could assist the pregnant Mrs B. with household work. Mrs B. also had another daughter from a first marriage who stayed with her during the holidays and at weekends. The applicant lived at Mr and Mrs B.'s home, her father having given his consent.", "13. On her return from the maternity hospital, Mrs B. told the applicant that she had decided to keep her.", "14. The applicant subsequently became a general housemaid for Mr and Mrs B. She worked seven days a week, without a day off, and was occasionally and exceptionally authorised to go out on Sundays to attend mass. Her working day began at 7.30 a. m. , when she had to get up and prepare breakfast, dress the children, take them to nursery school or their recreational activities, look after the baby, do the housework and wash and iron clothes.", "In the evening she prepared dinner, looked after the older children, did the washing up and went to bed at about 10.30 p. m. In addition, she had to clean a studio flat, in the same building, which Mr B. had made into an office.", "The applicant slept on a mattress on the floor in the baby's room; she had to look after him if he woke up.", "15. She was never paid, except by Mrs B.'s mother, who gave her one or two 500 French franc (FRF) notes.", "16. In December 1995 the applicant was able to escape with the help of a Haitian national who took her in for five or six months. She looked after the latter's two children, was given appropriate accommodation and food, and received FRF 2,500 per month.", "17. Subsequently, in obedience to her paternal uncle, who had been in contact with Mr and Mrs B., she returned to the couple, who had undertaken to put her immigration status in order. However, the situation remained unchanged: the applicant continued to carry out household tasks and look after the couple's children. She slept on a mattress on the floor of the children's bedroom, then on a folding bed, and wore second-hand clothes. Her immigration status had still not been regularised, she was not paid and did not attend school.", "18. On an unspecified date, the applicant managed to recover her passport, which she entrusted to an acquaintance of Mr and Mrs B. She also confided in a neighbour, who alerted the Committee against Modern Slavery ( Comité contre l'esclavage moderne ), which in turn filed a complaint with the prosecutor's office concerning the applicant's case.", "19. On 28 July 1998 the police raided Mr and Mrs B.'s home.", "20. The couple were prosecuted on charges of having obtained from July 1995 to July 1998 the performance of services without payment or in exchange for payment that was manifestly disproportionate to the work carried out, by taking advantage of that person's vulnerability or state of dependence; with having subjected an individual to working and living conditions that were incompatible with human dignity by taking advantage of her vulnerability or state of dependence; and with having employed and maintained in their service an alien who was not in possession of a work permit.", "21. On 10 June 1999 the Paris tribunal de grande instance delivered its judgment.", "22. It found that the applicant's vulnerability and dependence in her relationship with Mr and Mrs B. was proved by the fact that she was unlawfully resident in France, was aware of that fact and feared arrest, that Mr and Mrs B. nurtured that fear while promising to secure her leave to remain – a claim that was confirmed by her uncle and her father – and by the fact that she had no resources, no friends and almost no family to help her.", "23. As to the failure to provide any or adequate remuneration, the court noted that it had been established that the young woman had remained with Mr and Mrs B. for several years, was not a member of their family, could not be regarded as a foreign au pair who had to be registered and given free time in order to improve her language skills, was kept busy all day with housework, did not go to school and was not training for a profession and that, had she not been in their service, Mr and Mrs B. would have been obliged to employ another person, given the amount of work created by the presence of four children in the home.", "It therefore concluded that the offence laid down in Article 225-13 of the Criminal Code (see paragraph 46 below) was made out.", "24. The court also found it established that Mr and Mrs B. were employing an alien who was not in possession of a work permit.", "25. The court noted that the parties had submitted differing accounts concerning the allegations that the working and living conditions were incompatible with human dignity.", "It found that the applicant clearly worked long hours and did not enjoy a day off as such, although she was given permission to attend mass. It noted that a person who remained at home with four children necessarily began his or her work early in the morning and finished late at night, but had moments of respite during the day; however, the scale of Mrs B.'s involvement in this work had not been established.", "26. The court concluded that, while it seemed established that employment regulations had not been observed in respect of working hours and rest time, this did not suffice to consider that the working conditions were incompatible with human dignity, which would have implied, for example, a furious pace, frequent insults and harassment, the need for particular physical strength that was disproportionate to the employee's constitution and having to work in unhealthy premises, which had not been the case in this instance.", "27. As to the applicant's accommodation, the court noted that Mr and Mrs B., who were well-off, had not seen fit to set aside an area for the applicant's personal use and that, although this situation was regrettable and indicated their lack of consideration for her, her living conditions could not be held to infringe human dignity, given that a number of people, especially in the Paris region, did not have their own rooms. Accommodation which infringed human dignity implied an unhygienic, unheated room, with no possibility of looking after one's basic hygiene, or premises which were so far below the applicable norms that occupation would be dangerous.", "28. Accordingly, the court found that the offence laid down in Article 225 ‑ 14 of the Criminal Code (see paragraph 46 below) had not been made out.", "Nonetheless, the judges concluded that the offences of which Mr and Mrs B. were convicted were incontestably serious and were to be severely punished, particularly as the couple considered that they had treated the applicant quite properly.", "Accordingly, they sentenced them to twelve months'imprisonment each, of which seven months were suspended, imposed a fine of FRF 100,000 and ordered them to pay, jointly and severally, FRF 100,000 to the applicant in damages. In addition, Mr and Mrs B. forfeited their civic, civil and family rights for three years.", "29. Mr and Mrs B. appealed against this decision.", "30. On 20 April 2000 the Paris Court of Appeal gave an interlocutory judgment ordering further investigations.", "31. On 19 October 2000 it delivered its judgment on the merits.", "32. The Court of Appeal found that the additional investigation had made it possible to confirm that the applicant had arrived in France aged 15 years and 7 months, in possession of a passport and a three-month tourist visa. During the period that she lived with Mrs D., from January to October 1994, she had been employed by the latter, firstly, to do housework, cook and look after her child, and, secondly, in the latter's clothing business, where she also did the cleaning and returned to the rails clothes that customers had tried on, without remuneration.", "33. Around October 1994 the applicant had spent a few days at Mr and Mrs B.'s home, shortly before Mrs B. gave birth to her fourth child. She travelled by underground to Mr and Mrs B.'s home every day and returned to Mrs D.'s house in the evening to sleep.", "34. In July / August 199 4 she was “lent” to Mr and Mrs B., and stayed in their home until December 1995, when she left for Mrs G.'s home, where she was remunerated for her work and given accommodation. She had returned to Mr and Mrs B. in May / June 1996 on her uncle's advice.", "35. The Court of Appeal noted that it had been established that the applicant was an illegal immigrant and had not received any real remuneration.", "Further, it noted that it appeared that the applicant was proficient in French, which she had learnt in her own country.", "In addition, she had learnt to find her way around Paris in order, initially, to go from Mrs D.'s home to the latter's business premises, and later to travel to Maisons-Alfort, where Mrs G. lived, and finally to return to Mr and Mrs B.'s home.", "36. She had a degree of independence, since she took the children to the locations where their educational and sports activities were held, and subsequently collected them. She was also able to attend a Catholic service in a church near Mr and Mrs B.'s home. In addition, she left the house to go shopping, since it was on one of those occasions that she had met Mrs G. and agreed with her to go to the latter's home.", "37. The Court of Appeal further noted that the applicant had had an opportunity to contact her uncle by telephone outside Mr and Mrs B .'s home and to pay for calls from a telephone box. She had met her father and her uncle and had never complained about her situation.", "38. Furthermore, Mrs B.'s mother confirmed that the applicant spoke good French and that she was in the habit of giving her small sums of money for family celebrations. She had frequently had the applicant and her grandchildren to stay in her country house and had never heard her complain of ill-treatment or contempt, although she had been free to express her views.", "39. The applicant's uncle stated that she was free, among other things, to leave the house and call him from a telephone box, that she was appropriately dressed, in good health and always had some money, which could not have come from anyone but Mr and Mrs B. He had offered to give her money, but she had never asked for any. He added that he had raised this question with Mrs B., who had told him that a certain amount was set aside every month in order to build up a nest egg for the applicant, which would be given to her when she left, and that the girl was aware of this arrangement.", "He stated that, on the basis of what he had been able to observe and conclude from his conversations with the applicant and with Mrs B., the girl had not been kept as a slave in the home in which she lived.", "40. The Court of Appeal ruled that the additional investigations and hearings had shown that, while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants'intention to create a nest egg that would be handed over to her on departure had not been seriously disputed), in contrast, the existence of working or living conditions that were incompatible with human dignity had not been established.", "It also considered that it had not been established that the applicant was in a state of vulnerability or dependence since, by taking advantage of her ability to come and go at will, contacting her family at any time, leaving Mr and Mrs B.'s home for a considerable period and returning without coercion, the girl had, in spite of her youth, shown an undeniable form of independence, and vulnerability could not be established merely on the basis that she was an alien.", "Accordingly, the Court of Appeal acquitted the defendants on all the charges against them.", "41. The applicant appealed on points of law against that judgment. No appeal was lodged by the Principal Public Prosecutor's Office.", "42. In a letter of 27 October 2000 to the Chair of the Committee against Modern Slavery, the public prosecutor attached to the Paris Court of Appeal wrote:", "“In your letter of 23 October 2000 you asked me to inform you whether the public prosecution office under my direction has lodged an appeal on points of law against the judgment delivered on 19 October 2000 by the Twelfth Division of the court which heard the appeal in the criminal proceedings against Mr and Mrs B.", "The Court of Appeal's decision to acquit the defendants of the two offences of insufficiently remunerating a person in a vulnerable position and subjecting a person in a vulnerable or dependent state to demeaning working conditions was based on an assessment of elements of pure fact.", "Since the Court of Cassation considers that such assessments come within the unfettered discretion of the trial courts, an appeal on points of law could not be effectively argued.", "That is why I have not made use of that remedy.”", "43. The Court of Cassation delivered its judgment on 11 December 2001. It ruled as follows:", "“All judgments must contain reasons justifying the decision reached; giving inadequate or contradictory reasons is tantamount to giving no reasons.", "After an investigation into the situation of [the applicant], a young Togolese national whom they had employed and lodged in their home since she was 16, V. and A.B. were directly summoned before the criminal court for, firstly, taking advantage of a person's vulnerability or dependent state to obtain services without payment or any adequate payment, contrary to Article 225-13 of the Criminal Code and, secondly, for subjecting that person to working or living conditions incompatible with human dignity, contrary to Article 225-14 of the same Code.", "In acquitting the defendants of the two above-mentioned offences and dismissing the civil party's claims in connection therewith, the appeal court, having noted that [the applicant] was a foreign minor, without a residence or work permit and without resources, nonetheless stated that her state of vulnerability and dependence, a common constituent element of the alleged offences, had not been established, given that the girl enjoyed a certain freedom of movement and that vulnerability could not be established merely on the basis that she was an alien.", "Furthermore, in finding that the offence defined in Article 225-13 of the Criminal Code had not been made out, the court added that'it does appear that the applicant has not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants'intention to build up a nest egg that would be handed over to her on departure has not been seriously disputed)'.", "Finally, in acquitting the defendants of the offence set out in Article 225-14 of the Criminal Code, the courts found that subjection to working or living conditions incompatible with human dignity'had not been established'.", "However, in ruling in this way, with reasons that were inadequate and ineffective with regard to the victim's state of vulnerability and dependence and contradictory with regard to her remuneration, and without specifying the factual elements which established that her working conditions were compatible with human dignity, the Court of Appeal failed to draw from its findings the legal conclusions that were required in the light of Article 225-13 of the Criminal Code and did not justify its decision in the light of Article 225-14 of that Code.", "The judgment must therefore be quashed.", "For these reasons,", "[The Court of Cassation] quashes the above-mentioned judgment of the Paris Court of Appeal dated 19 October 2000 but only in respect of the provisions dismissing the civil party's requests for compensation in respect of the offences provided for in Articles 225-13 and 225-14 of the Criminal Code, all other provisions being expressly maintained, and instructs that the case be remitted, in accordance with the law, for a rehearing of the matters in respect of which this appeal has been allowed. ...”", "44. The Versailles Court of Appeal, to which the case was subsequently referred, delivered its judgment on 15 May 2003. It ruled, inter alia, as follows:", "“As was correctly noted at first instance, the evidence shows that [ the applicant ], an alien who arrived in France at the age of 16, worked for several years for Mr and Mrs B., carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 a. m. to 10 p. m. , without receiving any remuneration whatsoever; contrary to the defendants'claims, she was not considered a family friend, since she was obliged to follow Mrs B.'s instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased.", "In addition, there is no evidence to show that a nest egg has been built up for her, since the list of payments allegedly made by the defendants is in Mrs B.'s name.", "It was only at the hearing before the tribunal de grande instance that the defendants gave the victim the sum of 50,000 francs.", "Finally, far from showing that [the applicant] was happy to return to Mr and Mrs B.'s home, the conditions in which she did so after an absence of several months are, on the contrary, indicative of the pressure she had been subjected to by her family and of her state of resignation and emotional disarray.", "With regard to the victim's state of dependence and vulnerability during the period under examination, it should be noted that this young girl was a minor, of Togolese nationality, an illegal immigrant in France, without a passport, more often than not without money, and that she was able to move about only under Mrs B.'s supervision for the purposes of the children's educational and sports activities.", "Accordingly, it was on appropriate grounds, to which this court subscribes, that the court at first instance found that the constituent elements of the offence punishable under Article 225-13 of the Criminal Code were established in respect of the defendants.", "With regard to the offence of subjecting a person in a vulnerable or dependent position to working or living conditions that are incompatible with human dignity :", "As the court of first instance correctly noted, carrying out household tasks and looking after children throughout the day could not by themselves constitute working conditions incompatible with human dignity, this being the lot of many mothers; in addition, the civil party's allegations of humiliating treatment or harassment have not been proved.", "Equally, the fact that [the applicant] did not have an area reserved for her personal use does not mean that the accommodation was incompatible with human dignity, given that Mr and Mrs B's own children shared the same room, which was in no way unhygienic.", "Accordingly, the constituent elements of this second offence have not been established in respect of Mr and Mrs B.", "Independently of the sums due to [the applicant] in wages and the payment of 50,000 francs in a belated gesture of partial remuneration, Mr B., whose intellectual and cultural level was such as to enable him to grasp fully the unlawfulness of his conduct, but who allowed the situation to continue, probably through cowardice, has, together with Mrs B., caused [the applicant] considerable psychological trauma, for which should be awarded 15,245 euros in compensation, as assessed by the court of first instance.”", "45. On 3 October 2003 the Paris industrial tribunal delivered judgment following an application submitted by the applicant. It awarded her 31,238 euros (EUR) in respect of arrears of salary, EUR 1,647 in respect of the notice period and EUR 164 in respect of holiday leave.", "i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes;", "ii. strengthen border controls and harmonise policies for police cooperation, especially with respect to minors;", "...", "vi. protect the rights of victims of domestic slavery by:", "a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds;", "b. taking steps to provide them with protection and with social, administrative and legal assistance;", "c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery;", "d. developing specific programmes for their protection;", "e. increasing victims'time limits for bringing proceedings for offences of slavery;", "f. establishing compensation funds for the victims of slavery;", "...”", "(c) Recommendation 1663 (2004), adopted on 22 June 2004", "“1. The Parliamentary Assembly is dismayed that slavery continues to exist in Europe in the twenty-first century. Although, officially, slavery was abolished over 150 years ago, thousands of people are still held as slaves in Europe, treated as objects, humiliated and abused. Modern slaves, like their counterparts of old, are forced to work (through mental or physical threat) with no or little financial reward. They are physically constrained or have other limits placed on their freedom of movement and are treated in a degrading and inhumane manner.", "2. Today's slaves are predominantly female and usually work in private households, starting out as migrant domestic workers, au pairs or'mail-order brides'. Most have come voluntarily, seeking to improve their situation or escaping poverty and hardship, but some have been deceived by their employers, agencies or other intermediaries, have been debt-bonded and even trafficked. Once working (or married to a'consumer husband'), however, they are vulnerable and isolated. This creates ample opportunity for abusive employers or husbands to force them into domestic slavery.", "...", "5. The Council of Europe must have zero tolerance for slavery. As an international organisation defending human rights, it is the Council of Europe's duty to lead the fight against all forms of slavery and trafficking in human beings. The Organisation and its member States must promote and protect the human rights of the victim and ensure that the perpetrators of the crime of domestic slavery are brought to justice so that slavery can finally be eliminated from Europe.", "6. The Assembly thus recommends that the Committee of Ministers:", "i. in general :", "a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion;", "b. encourage member States to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member States;", "c. ensure that the relevant authorities in the member States thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible;", "...", "ii. as concerns domestic servitude:", "a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers'recommendation or even of a convention, should guarantee at least the following rights to domestic workers:", "– the recognition of domestic work in private households as'real work', that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights;", "– the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities;", "– the right to health insurance;", "– the right to family life, including health, education and social rights for the children of domestic workers;", "– the right to leisure and personal time;", "– the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country;", "...”", "50. Council of Europe Convention on Action against Trafficking in Human Beings, opened for signature on 16 May 2005 (extracts)", "Preamble", "“ ...", "Considering that trafficking in human beings may result in slavery for victims;", "Considering that respect for victims'rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives;", "Considering that all actions or initiatives against trafficking in human beings must be non-discriminatory, take gender equality into account as well as a child-rights approach;", "...", "Bearing in mind the following recommendations of the Parliamentary Assembly of the Council of Europe: ... 1663 (2004) Domestic slavery: servitude, au pairs and mail-order brides;", "... ”", "Article 1 – Purposes of the Convention", "“1. The purposes of this Convention are:", "(a) to prevent and combat trafficking in human beings, while guaranteeing gender equality;", "(b) to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution;", "... ”", "Article 4 – Definitions", "“ For the purposes of this Convention:", "(a )'Trafficking in human beings'shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;", "(b) The consent of a victim of'trafficking in human beings'to the intended exploitation set forth in sub - paragraph (a) of this Article shall be irrelevant where any of the means set forth in sub - paragraph (a) have been used;", "(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered'trafficking in human beings'even if this does not involve any of the means set forth in sub -paragraph (a) of this Article;", "(d)'Child'shall mean any person under eighteen years of age;", "(e)'Victim'shall mean any natural person who is subject to trafficking in human beings as defined in this Article.”", "Article 19 – Criminalisation of the use of services of a victim", "“Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph ( a ) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.”", "51. Other international conventions", "(a) Forced Labour Convention, adopted on 28 June 1930 by the General Conference of the International Labour Organisation (ratified by France on 24 June 1937 )", "Article 2", "“ 1. For the purposes of this Convention the term'forced or compulsory labour'shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.", "2. Nevertheless, for the purposes of this Convention the term'forced or compulsory labour'shall not include:", "(a) Any work or service exacted in virtue of compulsory military service laws for work of a purely military character;", "(b) Any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;", "(c) Any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;", "(d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;", "(e) Minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.”", "Article 3", "“ For the purposes of this Convention the term'competent authority'shall mean either an authority of the metropolitan country or the highest central authority in the territory concerned.”", "Article 4", "“1. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations.", "2. Where such forced or compulsory labour for the benefit of private individuals, companies or associations exists at the date on which a Member's ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsory labour from the date on which this Convention comes into force for that Member.”", "(b) Slavery Convention, signed in Geneva on 25 September 1926, which came into force on 9 March 1927, in accordance with the provisions of Article 12", "Article 1", "“ For the purpose of the present Convention, the following definitions are agreed upon:", "1. Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised;", "2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves. ”", "Article 4", "“ The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade. ”", "Article 5", "“ The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.", "It is agreed that:", "1. Subject to the transitional provisions laid down in paragraph 2 below, compulsory or forced labour may only be exacted for public purposes;", "2. In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence;", "3. In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.”", "(c) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted on 30 April 1956 and which came into force in respect of France on 26 May 1964", "Section I. Institutions and practices similar to slavery", "Article 1", "“ Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in Article 1 of the Slavery Convention signed at Geneva on 25 September 1926:", "(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;", "(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;", "...", "(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.”", "(d) International Convention on the Rights of the Child, dated 20 November 1989, which came into force in respect of France on 6 September 1990", "Article 19", "“ 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. ”", "Article 32", "“ 1. States Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.", "2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present Article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:", "(a) Provide for a minimum age or minimum ages for admission to employment;", "(b) Provide for appropriate regulation of the hours and conditions of employment;", "(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article. ”", "Article 36", "“ States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.”" ]

[ "II. RELEVANT LAW", "46. The Criminal Code as worded at the material time", "Article 225-13", "“It shall be an offence punishable by two years'imprisonment and a fine of 500,000 francs to obtain from an individual the performance of services without payment or in exchange for payment that is manifestly disproportionate to the amount of work carried out, by taking advantage of that person's vulnerability or state of dependence.”", "Article 225-14", "“ It shall be an offence punishable by two years'imprisonment and a fine of 500,000 francs to subject an individual to working or living conditions which are incompatible with human dignity by taking advantage of that individual's vulnerability or state of dependence.”", "47. The Criminal Code as amended by the Law of 18 March 2003", "Article 225-13", "“It shall be an offence punishable by five years'imprisonment and a fine of 150,000 euros to obtain from an individual whose vulnerability or state of dependence is apparent or of which the offender is aware, the performance of services without payment or in exchange for payment which is manifestly disproportionate to the amount of work carried out.”", "Article 225-14", "“It shall be an offence punishable by five years'imprisonment and a fine of 150,000 euros to subject an individual whose vulnerability or state of dependence is apparent or of which the offender is aware to working or living conditions which are incompatible with human dignity.”", "Article 225-15", "“The offences set out in Articles 225-13 and 225-14 shall be punishable by seven years'imprisonment and a fine of 200,000 euros if they are committed against more than one person.", "If they are committed against a minor, they shall be punishable by seven years'imprisonment and a fine of 200,000 euros.", "If they are committed against more than one person, including one or more minors, they shall be punishable by ten years'imprisonment and a fine of 300,000 euros.”", "48. Information report by the French National Assembly's joint fact-finding taskforce on the various forms of modern slavery, tabled on 12 December 2001 (extracts)", "“The situation of minors, who are more vulnerable and ought to receive special protection on account of their age, strikes the taskforce as highly worrying: ..., children doomed to work as domestic servants or in illegal workshops ... represent easy prey for traffickers of all kinds ...", "What solutions can be proposed in view of the growth in these forms of slavery? Some already exist, of course. We have available a not inconsiderable arsenal of punitive measures. However, these are not always used in full and are proving an insufficient deterrent when put to the test. The police and the justice system are obtaining only limited results.", "...", "The determination of the drafters of the new Criminal Code to produce a text imbued with the concept of human rights is particularly clear from the provisions of Articles 225-13 and 225-14 of the Code, which created new offences making it unlawful to impose working and living conditions that are contrary to human dignity. As demonstrated by the explanatory memorandum to the initial 1996 bill, the purpose of those provisions was primarily to combat'slum landlords'or other unscrupulous entrepreneurs who shamelessly exploit foreign workers who are in the country illegally.", "...", "The concept, found in both Articles 225-13 and 225-14 of the Criminal Code, of the abuse of an individual's vulnerability or state of dependence contains ambiguities that could be prejudicial to their application.", "...", "Thus, by failing on the one hand to specify the possible categories of individuals defined as vulnerable and, further, by failing to require that the vulnerability be of a'particular'nature, the legislature has conferred on Articles 225-13 and 225-14 an extremely wide, or even vague, scope, one that is likely to cover circumstances of vulnerability or dependence that are'social or cultural in nature'.", "...", "The current wording of the Criminal Code, especially that of Article 225-14, is highly ambiguous, since it requires, on the one hand, that the victim has been subjected to working or living conditions that are incompatible with human dignity and, on the other, that those conditions have been imposed through the'abuse'of his or her vulnerability or state of dependency.", "It may therefore logically be concluded, as Mr Guy Meyer, deputy public prosecutor at the Paris public prosecutor's office, stated before the taskforce, that,'by converse implication ... provided one has not taken advantage of [an individual's] vulnerability, it is alright to undermine human dignity [ ... ] Undermining human dignity ought to be an offence in itself and, possibly, abuse of [an individual's] vulnerability or status as a minor an aggravating factor'.", "That said, and since the law is silent, it is up to the court to determine where the scope of those provisions ends. In this connection, analysis of the case-law reveals differences in evaluation that impede the uniform application of the law throughout France, since, as Ms Françoise Favaro rightly noted when addressing the taskforce:'We are in a sort of ephemeral haze in which everything is left to the judge's assessment. '", "...", "Even more surprisingly, on 19 October 2000 the same court of appeal refused in another case to apply the provisions of Articles 225-13 and 225-14 in favour of a young woman, a domestic slave, despite the fact that she was a minor at the relevant time. In its judgment, the court noted, inter alia :'It has not been established that the young girl was in a position of vulnerability or dependence as, by taking advantage of the possibility of coming and going at will, contacting her family at any time, leaving Mr and Mrs X's home for a considerable period and returning without coercion, she has, in spite of her youth, shown an undeniable form of independence, and vulnerability cannot be established merely on the basis that she was an alien. '", "It is therefore apparent that, in the absence of legal criteria enabling the courts to determine whether there has been abuse of [an individual's] vulnerability or state of dependence, the provisions of Articles 225-13 and 225-14 of the Criminal Code are open to interpretation in different ways, some more restrictive than others.", "...", "Whether with regard to actual or potential sentences, the shortcomings of the provisions are clearly visible, in view of the seriousness of the factual elements characteristic of modern slavery.", "...", "Bearing in mind, on the one hand, the constitutional status of the values protected by Articles 225-13 and 225-14 of the Criminal Code and, on the other, the seriousness of the offences in such cases, the inconsequential nature of the penalties faced by those guilty of them is surprising, and raises questions about the priorities of the French criminal justice system.", "...", "The minors whose cases the taskforce has had to examine are minors caught up or at risk of being caught up in slavery, whether for the provision of sex or labour. More often than not they are illegal immigrants.”", "49. Documents of the Parliamentary Assembly of the Council of Europe", "(a) Report by the Committee on Equal Opportunities for Women and Men, dated 17 May 2001 (extract)", "“In France, since its foundation in 1994, the Committee against Modern Slavery (CCEM) has taken up the cases of over 200 domestic slavery victims, mostly originating from West Africa ( Ivory Coast, Togo, Benin ) but also from Madagascar, Morocco, India, Sri Lanka and the Philippines. The majority of victims were women (95%). One-third arrived in France before they came of age and most of them suffered physical violence or sexual abuse.", "The employers mostly came from West Africa or the Middle East. 20% are French nationals. 20% enjoyed immunity from prosecution, among them one diplomat from Italy and five French diplomats in post abroad. Victims working for diplomats mainly come from India, Indonesia, the Philippines and Sri Lanka. It has been estimated that there are several thousand victims of domestic slavery in France .”", "(b) Recommendation 1523 (2001), adopted on 26 June 2001", "“1. In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world.", "2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights.", "3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction.", "...", "5. It notes that the victims'passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence.", "6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey.", "7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented.", "...", "9. It regrets that none of the Council of Europe member States expressly make domestic slavery an offence in their criminal codes.", "10. It accordingly recommends that the Committee of Ministers ask the governments of member States to:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION", "52. The applicant complained that there had been a violation of Article 4 of the Convention. This provision states, inter alia :", "“1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour.", "... ”", "A. Whether the applicant had “ victim ” status", "53. The Government contended by way of primary submission that the applicant could no longer claim to be the victim of a violation of the Convention within the meaning of Article 34.", "They stated at the outset that they did not contest that the applicant had been the victim of particularly reprehensible conduct on the part of the couple who had taken her in, or that the Paris Court of Appeal's judgment of 19 October 2000 had failed to acknowledge the reality of that situation as a matter of law. However, they noted that the applicant had not appealed against the first-instance judgment which had convicted her “employers” solely on the basis of Article 225-13 of the Criminal Code and that it should be concluded from this that she had accepted their conviction under that Article alone.", "Accordingly, the applicant could not use the absence of a conviction under Article 225-14 of the Criminal Code to argue that she still had victim status.", "54. Furthermore, the Government noted that the applicant's appeal on points of law had still been pending when her application was lodged with the Court. However, following the Court of Cassation's judgment quashing the ruling by the Paris Court of Appeal, the court of appeal to which the case was subsequently remitted had recognised the applicant's state of dependence and vulnerability within the meaning of Article 225-13 of the Criminal Code, as well as the exploitation to which she had been subjected, although it had been required only to examine the civil claims. They emphasised that, in line with the case-law, a decision or measure favourable to an applicant was sufficient to deprive him or her of “victim” status, provided that the national authorities had acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention.", "55. The Government concluded that the sanction imposed by the Versailles Court of Appeal was to be considered as having afforded redress for the violation alleged by the applicant before the Court, especially as she had not appealed on points of law against its judgment. In addition, they pointed out that the Paris industrial tribunal had made awards in respect of unpaid wages and benefits.", "56. Finally, the applicant's immigration status had been regularised and she had received a residence permit enabling her to reside in France lawfully and to pursue her studies. In conclusion, the Government considered that the applicant could no longer claim to be the victim of a violation of the Convention within the meaning of Article 34.", "57. The applicant did not dispute that certain measures and decisions had been taken which were favourable to her.", "58. However, she stressed that the national authorities had never acknowledged, expressly or in substance, her complaint that the State had failed to comply with its positive obligation, inherent in Article 4, to secure tangible and effective protection against the practices prohibited by this Article and to which she had been subjected by Mr and Mrs B. Only a civil remedy had been provided.", "59. She alleged that Articles 225-13 and 225-14 of the Criminal Code, as worded at the material time, were too open and elusive, and in such divergence with the European and international criteria for defining servitude and forced or compulsory labour that she had not been secured effective and sufficient protection against the practices to which she had been subjected.", "60. Article 34 of the Convention provides that “ [t] he Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ... ”.", "61. The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Karahalios v. Greece, no. 62503/00, § 21, 11 December 2003, and Malama v. Greece (dec.), no. 43622/98, 25 November 1999 ).", "62. It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 846, § 36; Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII; and Association Ekin v. France (dec.), no. 39288/98, 18 January 2000 ).", "63. The Court considers that the Government's argument alleging that the applicant had lost her status as a victim raises questions about the French criminal law's provisions on slavery, servitude and forced or compulsory labour and the manner in which those provisions are interpreted by the domestic courts. Those questions are closely linked to the merits of the applicant's complaint. The Court consequently considers that they should be examined under the substantive provision of the Convention relied on by the applicant (see, in particular, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32; Gnahoré v. France, no. 40031/98, § 26, ECHR 2000 ‑ IX; and Isayeva v. Russia, no. 57950/00, § 161, 24 February 2005 ).", "B. The merits", "1. Applicability of Article 4 and the positive obligations", "64. The Court notes that the Government do not dispute that Article 4 is applicable in the instant case.", "65. The applicant considered that the exploitation to which she had been subjected while a minor amounted to a failure by the State to comply with its positive obligation under Articles 1 and 4 of the Convention, taken together, to put in place adequate criminal-law provisions to prevent and effectively punish the perpetrators of those acts.", "66. In the absence of rulings on this matter in respect of Article 4, she referred in detail to the Court's case-law on States'positive obligations with regard to Articles 3 and 8 (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91; A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998 ‑ VI; and M.C. v. Bulgaria, no. 39272/98, ECHR 2003 ‑ XII ).", "67. She added that, in the various cases in question, the respondent States had been held to be responsible on account of their failure, in application of Article 1 of the Convention, to set up a system of criminal prosecution and punishment that would ensure tangible and effective protection of the rights guaranteed by Articles 3 and/or 8 against the actions of private individuals.", "68. She emphasised that this obligation covered situations where the State authorities were criticised for not having taken adequate measures to prevent the existence of the impugned situation or to limit its effects. In addition, the scope of the State's positive obligation to protect could vary on account of shortcomings in its legal system, depending on factors such as the aspect of law in issue, the seriousness of the offence committed by the private individual concerned or particular vulnerability on the part of the victim. This was precisely the subject of her application, in the specific context of protection of a minor's rights under Article 4.", "69. The applicant added that, in the absence of any appropriate criminal-law machinery to prevent and punish the direct perpetrators of alleged ill-treatment, it could not be maintained that civil proceedings to afford reparation of the damage suffered were sufficient to provide her with adequate protection against possible assaults on her integrity.", "70. She considered that the right not to be held in servitude laid down in Article 4 § 1 of the Convention was an absolute right, permitting of no exception in any circumstances. She noted that the practices prohibited under Article 4 were also the subject of specific international conventions which applied to both children and adults.", "71. Accordingly, the applicant considered that the States had a positive obligation, inherent in Article 4 of the Convention, to adopt tangible criminal-law provisions that would deter such offences, backed up by law-enforcement machinery for the prevention, detection and punishment of breaches of such provisions.", "72. She further observed that, as the public prosecutor's office had not considered it necessary to appeal on points of law on the grounds of public interest, the acquittal of Mr and Mrs B. of the offences set out in Articles 225-13 and 225-14 of the Criminal Code had become final. Consequently, the court of appeal to which the case had been remitted after the initial judgment was quashed could not return a guilty verdict nor, a fortiori, impose a sentence, but could only decide whether to award civil damages. She considered that a mere finding that the constituent elements of the offence set out in Article 225-13 of the Criminal Code had been established and the imposition of a fine and damages could not be regarded as an acknowledgment, whether express or in substance, of a breach of Article 4 of the Convention.", "73. With regard to possible positive obligations, the Government conceded that, if the line taken by the European Commission of Human Rights in X and Y v. the Netherlands (cited above) were to be applied to the present case, then it appeared that they did indeed exist. They pointed out, however, that States had a certain margin of appreciation when it came to intervening in the sphere of relations between individuals.", "74. In this respect, they referred to the Court's case-law, and especially Calvelli and Ciglio v. Italy ([GC], no. 329 67/96, ECHR 2002-I); A. v. the United Kingdom, cited above; and Z and Others v. the United Kingdom ([GC], no. 29392/95, § 109, ECHR 2001-V), as well as the decision in G.G. v. Italy ( (dec.), no. 34574/97, 10 October 2002 ) in which the Court had noted in connection with Article 3 that “criminal proceedings did not represent the only effective remedy in cases of this kind, but civil proceedings, making it possible to obtain redress for the damage suffered must in principle be open to children who have been subjected to ill-treatment”.", "75. On that basis, the Government argued that, in the instant case, the proceedings before the criminal courts which led to the payment of damages were sufficient under Article 4 in order to comply with any positive obligation arising from the Convention.", "76. In the alternative, the Government considered that in any event French criminal law fulfilled any positive obligations arising under Article 4 of the Convention. They submitted that the wording of Articles 225-13 and 225-14 of the Criminal Code made it possible to fight against all forms of exploitation through labour for the purposes of Article 4. They stressed that these criminal-law provisions had, at the time of the events complained of by the applicant, already resulted in several criminal-court rulings, thus establishing a case-law, and that, since then, they had given rise to various other decisions to the same effect.", "77. The Court points out that it has already been established that, with regard to certain Convention provisions, the fact that a State refrains from infringing the guaranteed rights does not suffice to conclude that it has complied with its obligations under Article 1 of the Convention.", "78. Thus, with regard to Article 8 of the Convention, it held as long ago as 1979:", "“ ... Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective'respect'for family life.", "This means, amongst other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8, respect for family life implies in particular, in the Court's view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child's integration in his family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 without there being any call to examine it under paragraph 2. ... ” ( Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, pp. 14-15, § 31)", "79. It subsequently clarified this concept:", "“Positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State's margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection. ” ( X and Y v. the Netherlands, cited above, pp. 11-13, §§ 23, 24 and 27; August v. the United Kingdom ( dec .), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, cited above, § 150 )", "80. As regards Article 3 of the Convention, the Court has found on numerous occasions that", "“ ... the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. ” ( see A. v. the United Kingdom, cited above, p. 2699, § 22; Z and Others v. the United Kingdom, cited above, §§ 73-75; E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002; and M.C. v. Bulgaria, cited above, § 149)", "81. It has also found that:", "“Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity. ” (see, mutatis mutandis, X and Y v. the Netherlands, cited above, pp. 11-13, §§ 21- 27; Stubbings and Others v. the United Kingdom, 22 October 1996, Reports 1996-IV, p. 1505, §§ 62- 64; and A. v. the United Kingdom, cited above, as well as the United Nations Convention on the Rights of the Child, Articles 19 and 37)", "82. The Court considers that, together with Articles 2 and 3, Article 4 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe.", "83. It notes that the Commission had proposed in 1983 that it could be argued that a Government's responsibility was engaged to the extent that it was their duty to ensure that the rules adopted by a private association did not run contrary to the provisions of the Convention, in particular where the domestic courts had jurisdiction to examine their application ( see X v. the Netherlands, no. 9327/81, Commission decision of 3 May 1983, Decisions and Reports (DR) 32, p. 180 ).", "84. The Court notes that, in referring to the above-mentioned case, the Government accepted at the hearing that positive obligations did appear to exist in respect of Article 4.", "85. In this connection, it notes that Article 4 § 1 of the Forced Labour Convention, adopted by the International Labour Organisation (ILO) on 28 June 1930 and ratified by France on 24 June 1937, provides:", "“ The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations.”", "86. Furthermore, Article 1 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted on 30 April 1956, which came into force in respect of France on 26 May 1964, states:", "“Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in Article 1 of the Slavery Convention signed at Geneva on 25 September 1926: ... [ d ] ebt bondage, ... [a] ny institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.”", "87. In addition, with particular regard to children, Article 19 § 1 of the International Convention on the Rights of the Child of 20 November 1989, which came into force in respect of France on 6 September 1990, provides:", "“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, ..., maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child .”", "Article 32 provides :", "“1. States Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.", "2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present Article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:", "(a) Provide for a minimum age or minimum ages for admission to employment;", "(b) Provide for appropriate regulation of the hours and conditions of employment;", "(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article.”", "88. Finally, the Court notes that it appears from the Parliamentary Assembly's findings (see “Relevant law” above) that “today's slaves are predominantly female and usually work in private households, starting out as migrant domestic workers ...”.", "89. In those circumstances, the Court considers that limiting compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that States have positive obligations, in the same way as under Article 3 for example, to adopt criminal-law provisions which penalise the practices referred to in Article 4 and to apply them in practice (see M.C. v. Bulgaria, cited above, § 153).", "2. Alleged violation of Article 4 of the Convention", "90. With regard to the violation of Article 4 of the Convention, the applicant noted from the outset that the right not to be held in servitude laid down in this provision was an absolute one, in the same way as the right not to be compelled to perform forced or compulsory labour.", "91. She said that, although the Convention did not define the terms servitude or “forced or compulsory labour”, reference should be made to the relevant international conventions in this field to determine the meaning of these concepts, while importance had to be attached in the instant case to the criteria laid down by both the United Nations and the Council of Europe for identifying modern forms of slavery and servitude, which were closely linked to trafficking in human beings, and to the internationally recognised necessity of affording children special protection on account of their age and vulnerability.", "92. She pointed out that her situation had corresponded to three of the four servile institutions or practices referred to in Article 1 of the Supplementary Geneva Convention of 30 April 1956, namely debt bondage, the delivery of a child or adolescent to a third person, whether for reward or not, with a view to the exploitation of his or her labour, and serfdom. She noted that she had not come to France in order to work as a domestic servant but had been obliged to do so as a result of the trafficking to which she had been subjected by Mrs B., who had obtained her parents'agreement through false promises.", "She concluded that such “delivery” of a child by her father, with a view to the exploitation of her labour, was similar to the practice, analogous to slavery, referred to in Article 1 (d) of the United Nations Supplementary Convention of 1956.", "93. The applicant also referred to the documentation published by the Council of Europe on domestic slavery and pointed out that the criteria used included confiscation of the individual's passport, the absence of remuneration or remuneration that was disproportionate to the services provided, deprivation of liberty or self-imposed imprisonment, and cultural, physical and emotional isolation.", "94. She added that it was clear from the facts that her situation was not temporary or occasional in nature, as was normally the case with “forced or compulsory labour”. Her freedom to come and go had been limited, her passport had been taken away from her, her immigration status had been precarious before becoming illegal, and she had also been kept by Mr and Mrs B. in a state of fear that she would be arrested and expelled. She considered that this was equivalent to the concept of self- imposed imprisonment described above.", "95. Referring to her working and living conditions at Mr and Mrs B.'s home, she concluded that her exploitation at their hands had compromised her education and social integration, as well as the development and free expression of her personality. Her identity as a whole had been involved, which was a characteristic of servitude but not, in general, of forced or compulsory labour.", "96. She added that in addition to the unremunerated exploitation of another's work, the characteristic feature of modern slavery was a change in the individual's state or condition, on account of the level of constraint or control to which his or her person, life, personal effects, right to come and go at will or to take decisions was subjected.", "She explained that, although she had not described her situation as “forced labour” in the proceedings before the Versailles Court of Appeal, the civil party had claimed in its submissions that “the exploitation to which Ms Siliadin was subjected ... had, at the very least, the characteristics of'forced labour'within the meaning of Article 4 § 2 of the Convention ...; in reality, she was a domestic slave who had been recruited in Africa”.", "97. As to the definition of “forced or compulsory labour”, the applicant drew attention to the case-law of the Commission and the Court, and emphasised that developments in international law favoured granting special protection to children.", "98. She noted that French criminal law did not contain specific offences of slavery, servitude or forced or compulsory labour, still less a definition of those three concepts that was sufficiently specific and flexible to be adapted to the forms those practices now took. In addition, prior to the enactment of the Law of 18 March 2003, there had been no legislation that directly made it an offence to traffic in human beings.", "99. Accordingly, the offences to which she had been subjected fell within the provisions of Articles 225-13 and 225-14 of the Criminal Code as worded at the material time. These were non-specific texts of a more general nature, which both required that the victim be in a state of vulnerability or dependence. Those concepts were as vague as that of the offender's “ taking advantage ”, which was also part of the definition of the two offences. In this connection, she emphasised that both legal commentators and the National Assembly's taskforce on the various forms of modern slavery had highlighted the lack of legal criteria enabling the courts to determine whether such a situation obtained, which had led in practice to unduly restrictive interpretations.", "100. Thus, Article 225-13 of the Criminal Code made it an offence to obtain another person's labour by taking advantage of him or her. In assessing whether the victim was vulnerable or in a state of dependence, the courts were entitled to take into account, among other circumstances, certain signs of constraint or control of the individual. However, those were relevant only as the prerequisites for a finding of exploitation, not as constituent elements of the particular form of the offence that was modern slavery. In addition, this article made no distinction between employers who took advantage of the illegal position of immigrant workers who were already in France and those who deliberately placed them in such a position by resorting to trafficking in human beings.", "101. She added that, contrary to Article 225-13, Article 225-14 required, and continued to require, an infringement of human dignity for the offence to be established. That was a particularly vague concept, and one subject to random interpretation. It was for this reason that neither her working nor living conditions had been found by the court to be incompatible with human dignity.", "102. The applicant said in conclusion that the criminal-law provisions in force at the material time had not afforded her adequate protection from servitude or from forced or compulsory labour in their contemporary forms, which were contrary to Article 4 of the Convention. As to the fact that the criminal proceedings had resulted in an award of compensation, she considered that this could not suffice to absolve the State of its obligation to establish a criminal-law machinery which penalised effectively those guilty of such conduct and deterred others.", "103. With regard to the alleged violation of Article 4, the Government first observed that the Convention did not define the term “servitude”. They submitted that, according to the case -law, “servitude” was close to “slavery”, which was at the extreme end of the scale. However, servitude reflected a situation of exploitation which did not require that the victim be objectified to the point of becoming merely another person's property.", "104. As to the difference between “servitude” and “forced or compulsory labour”, they concluded from the case-law of the Commission and the Court that servitude appeared to characterise situations in which denial of the individual's freedom was not limited to the compulsory provision of labour, but also extended to his or her living conditions, and that there was no potential for improvement, an element which was absent from the concept of “forced or compulsory labour”.", "105. With regard to the difference between “forced labour” and “compulsory labour”, the Government noted that, while the case-law's definition of “forced labour” as labour performed under the influence of “physical or psychological force” seemed relatively clear, the situation was less so with regard to “compulsory labour”.", "106. The Government did not deny that the applicant's situation fell within Article 4 of the Convention and emphasised that she herself had specifically described her situation as “forced labour” within the meaning of that provision.", "107. However, they submitted that the domestic judicial authorities had undisputedly remedied the violation of the Convention by ruling that the elements constituting the offence set out in Article 225-13 of the Criminal Code had been established.", "108. Finally, the Government pointed out that the wording of Articles 225-13 and 225-14 of the Criminal Code made it possible to combat all forms of exploitation of an individual through labour falling within Article 4 of the Convention.", "109. The Court notes that the applicant arrived in France from Togo at the age of 15 years and 7 months with a person who had agreed with her father that she would work until her air ticket had been reimbursed, that her immigration status would be regularised and that she would be sent to school.", "110. In reality, the applicant worked for this person for a few months before being “lent” to Mr and Mrs B. It appears from the evidence that she worked in their house without respite for approximately fifteen hours per day, with no day off, for several years, without ever receiving wages or being sent to school, without identity papers and without her immigration status being regularised. She was accommodated in their home and slept in the children's bedroom.", "111. The Court also notes that, in addition to the Convention, numerous international conventions have as their objective the protection of human beings from slavery, servitude and forced or compulsory labour (see “Relevant law” above ). As the Parliamentary Assembly of the Council of Europe has pointed out, although slavery was officially abolished more than 150 years ago, “domestic slavery” persists in Europe and concerns thousands of people, the majority of whom are women.", "112. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see, with regard to Article 3, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 163; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 34-35, § 88; Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996 ‑ V, p. 1855, § 79; and Selmouni v. France [GC], no. 25803/94, § 79, ECHR 1999-V ).", "In those circumstances, the Court considers that, in accordance with contemporary norms and trends in this field, the member States'positive obligations under Article 4 of the Convention must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 166).", "113. Accordingly, the Court must determine whether the applicant's situation falls within Article 4 of the Convention.", "114. It is not disputed that she worked for years for Mr and Mrs B., without respite and against her will.", "It has also been established that the applicant has received no remuneration from Mr and Mrs B. for her work.", "115. In interpreting Article 4 of the European Convention, the Court has in a previous case already taken into account the ILO conventions, which are binding on almost all of the Council of Europe's member States, including France, and especially the 1930 Forced Labour Convention (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 16, § 32).", "116. It considers that there is in fact a striking similarity, which is not accidental, between paragraph 3 of Article 4 of the European Convention and paragraph 2 of Article 2 of Convention No. 29. Paragraph 1 of the last-mentioned Article provides that “for the purposes” of the latter convention, the term “forced or compulsory labour” shall mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.", "117. It remains to be ascertained whether there was “forced or compulsory” labour. This brings to mind the idea of physical or mental constraint. What there has to be is work “exacted ... under the menace of any penalty” and also performed against the will of the person concerned, that is work for which he “has not offered himself voluntarily” (see Van der Mussele, cited above, p. 17, § 34).", "118. The Court notes that, in the instant case, although the applicant was not threatened by a “penalty”, the fact remains that she was in an equivalent situation in terms of the perceived seriousness of the threat.", "She was an adolescent girl in a foreign land, unlawfully present on French territory and in fear of arrest by the police. Indeed, Mr and Mrs B. nurtured that fear and led her to believe that her status would be regularised (see paragraph 22 above).", "Accordingly, the Court considers that the first criterion was met, especially since the applicant was a minor at the relevant time, a point which the Court emphasises.", "119. As to whether she performed this work of her own free will, it is clear from the facts of the case that it cannot seriously be maintained that she did. On the contrary, it is evident that she was not given any choice.", "120. In these circumstances, the Court considers that the applicant was, at the least, subjected to forced labour within the meaning of Article 4 of the Convention at a time when she was a minor.", "121. It remains for the Court to determine whether the applicant was also held in servitude or slavery.", "Sight should not be lost of the Convention's special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions, and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, among many other authorities, Selmouni, cited above, § 101).", "122. The Court notes at the outset that, according to the 1927 Slavery Convention, “slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.", "It notes that this definition corresponds to the “classic” meaning of slavery as it was practised for centuries. Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B. exercised a genuine right of legal ownership over her, thus reducing her to the status of an “ object ”.", "123. With regard to the concept of “servitude”, what is prohibited is a “ particularly serious form of denial of freedom” (see Van Droogenbroeck v. Belgium, Commission's report of 9 July 1980, Series B no. 44, p. 30, §§ 78 ‑ 80). It includes, “in addition to the obligation to perform certain services for others ... the obligation for the'serf'to live on another person's property and the impossibility of altering his condition ”. In this connection, in examining a complaint under this paragraph of Article 4, the Commission paid particular attention to the Abolition of Slavery Convention (see also Van Droogenbroeck v. Belgium, no. 7906/77, Commission decision of 5 July 1979, DR 17, p. 59).", "124. It follows in the light of the case-law on this issue that for Convention purposes “servitude” means an obligation to provide one's services that is imposed by the use of coercion, and is to be linked with the concept of “slavery” described above (see Seguin v. France (dec.), no. 42400/98, 7 March 2000 ).", "125. Furthermore, under the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, each of the States Parties to the convention must take all practicable and necessary legislative and other measures to bring about the complete abolition or abandonment of the following institutions and practices:", "“(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.”", "126. In addition to the fact that the applicant was required to perform forced labour, the Court notes that this labour lasted almost fifteen hours a day, seven days per week.", "She had been brought to France by a relative of her father's, and had not chosen to work for Mr and Mrs B.", "As a minor, she had no resources and was vulnerable and isolated, and had no means of living elsewhere than in the home of Mr and Mrs B., where she shared the children's bedroom as no other accommodation had been offered. She was entirely at Mr and Mrs B.'s mercy, since her papers had been confiscated and she had been promised that her immigration status would be regularised, which had never occurred.", "127. In addition, the applicant, who was afraid of being arrested by the police, was not in any event permitted to leave the house, except to take the children to their classes and various activities. Thus, she had no freedom of movement and no free time.", "128. As she had not been sent to school, despite the promises made to her father, the applicant could not hope that her situation would improve and was completely dependent on Mr and Mrs B.", "129. In those circumstances, the Court concludes that the applicant, a minor at the relevant time, was held in servitude within the meaning of Article 4 of the Convention.", "130. Having regard to its conclusions with regard to the positive obligations under Article 4, it now falls to the Court to examine whether the impugned legislation and its application in the case in issue had such significant flaws as to amount to a breach of Article 4 by the respondent State.", "131. According to the applicant, the provisions of French criminal law had not afforded her sufficient protection against the situation and had not made it possible for the culprits to be punished.", "132. The Government, for their part, submitted that Articles 225-13 and 225-14 of the Criminal Code made it possible to combat the exploitation through labour of an individual for the purposes of Article 4 of the Convention.", "133. The Court notes that the Parliamentary Assembly of the Council of Europe, in its Recommendation 1523 (2001), “[regretted] that none of the Council of Europe member States expressly [made] domestic slavery an offence in their criminal codes”.", "134. It notes with interest the conclusions reached by the French National Assembly's joint taskforce on the various forms of modern slavery (see “Relevant law” above ).", "More specifically, with regard to Articles 225-13 and 225-14 as worded as the material time, the taskforce found, in particular:", "“ ... We have available a not inconsiderable arsenal of punitive measures. However, these are not always used in full and are proving an insufficient deterrent when put to the test. ...", "...", "The concept, found in both Articles 225-13 and 225-14 of the Criminal Code, of the abuse of an individual's vulnerability or state of dependence contains ambiguities that could be prejudicial to their application.", "...", "That said, and since the law is silent, it is up to the court to determine where the scope of those provisions ends. In this connection, analysis of the case-law reveals differences in evaluation that impede the uniform application of the law throughout France ...", "...", "It is therefore apparent that, in the absence of legal criteria enabling the courts to determine whether there has been abuse of [an individual's] vulnerability or state of dependence, the provisions of Articles 225-13 and 225-14 of the Criminal Code are open to interpretation in different ways, some more restrictive than others.", "...", "Whether with regard to actual or potential sentences, the shortcomings of the provisions are clearly visible, in view of the seriousness of the factual elements characteristic of modern slavery.", "...", "Bearing in mind, on the one hand, the constitutional status of the values protected by Articles 225-13 and 225-14 of the Criminal Code and, on the other, the seriousness of the offences in such cases, the inconsequential nature of the penalties faced by those guilty of them is surprising, and raises questions about the priorities of the French criminal justice system.”", "135. The Court notes that, in the present case, the applicant's “employers” were prosecuted under Articles 225-13 and 225-14 of the Criminal Code, which make it an offence, respectively, to exploit an individual's labour and to submit him or her to working or living conditions that are incompatible with human dignity.", "136. In the judgment delivered on 10 June 1999, the Paris tribunal de grande instance found Mr and Mrs B. guilty of the offence defined in Article 225-13 of the Criminal Code. Conversely, it found that the offence set out in Article 225-14 had not been made out.", "137. The defendants were sentenced to twelve months'imprisonment, seven of which were suspended, and ordered to pay a fine of FRF 100,000 each and to pay, jointly and severally, FRF 100,000 to the applicant in damages.", "138. On an appeal by Mr and Mrs B., the Paris Court of Appeal delivered a judgment on 19 October 2000 in which it quashed the judgment at first instance and acquitted the defendants.", "139. On an appeal on points of law by the applicant alone, the Court of Cassation overturned the Court of Appeal's judgment, but only in respect of its civil aspects, and the case was remitted to another court of appeal.", "140. On 15 May 2003 that court gave a judgment upholding the findings of the tribunal de première instance and awarded the applicant damages.", "141. The Court notes that slavery and servitude are not as such classified as offences under French criminal law.", "142. The Government pointed to Articles 225-13 and 225-14 of the Criminal Code.", "The Court notes, however, that those provisions do not deal specifically with the rights guaranteed under Article 4 of the Convention, but concern, in a much more restrictive way, exploitation through labour and subjection to working and living conditions that are incompatible with human dignity.", "It therefore needs to be determined whether, in the instant case, those Articles provided effective penalties for the conduct to which the applicant had been subjected.", "143. The Court has previously stated that children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, X and Y v. the Netherlands, cited above, pp. 11-13, §§ 21 ‑ 27; Stubbings and Others, cited above, p. 1505, §§ 62- 64; and A. v. the United Kingdom, cited above, p. 2699, § 22; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37).", "144. Further, the Court has held in a case concerning rape that “the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is normally regulated” ( see X and Y v. the Netherlands, cited above, p. 13, § 27).", "145. The Court observes that, in the instant case, the applicant, who was subjected to treatment contrary to Article 4 and held in servitude, was not able to see those responsible for the wrongdoing convicted under the criminal law.", "146. In this connection, it notes that, as the Principal Public Prosecutor did not appeal on points of law against the Court of Appeal's judgment of 19 October 2000, the appeal to the Court of Cassation concerned only the civil aspect of the case and Mr and Mrs B.'s acquittal thus became final.", "147. In addition, according to the report of 12 December 2001 by the French National Assembly's joint taskforce on the various forms of modern slavery, Articles 225-13 and 225-14 of the Criminal Code, as worded at the material time, were open to very differing interpretations from one court to the next, as demonstrated by this case, which, indeed, was referred to by the taskforce as an example of a case in which a court of appeal had unexpectedly declined to apply Articles 225-13 and 225-14.", "148. In those circumstances, the Court considers that the criminal-law legislation in force at the material time did not afford the applicant, a minor, practical and effective protection against the actions of which she was a victim.", "It notes that the legislation has been changed but the amendments, which were made subsequently, were not applicable to the applicant's situation.", "It emphasises that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see paragraph 121 above).", "149. The Court thus finds that in the present case there has been a violation of the respondent State's positive obligations under Article 4 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "150. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "151. The applicant did not make a claim in respect of damage.", "B. Costs and expenses", "152. The applicant sought 26,209.69 euros for the costs of legal representation, from which the sums received by way of legal aid were to be deducted.", "153. The Government first observed that the applicant had not produced any evidence that she had paid this sum.", "They also considered that the amount sought was excessive and should be reduced to a more reasonable level.", "154. The Court considers that the applicant's representative has undoubtedly done a considerable amount of work in order to submit and argue this application, which concerns an area in which there is very little case-law to date.", "In those circumstances, the Court, ruling on an equitable basis, awards the applicant the entire amount claimed in costs.", "C. Default interest", "155. The Court considers it appropriate that the default interest should be based on an annual rate equal to the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants, C.N. and V., are French nationals who were born in 1978 and 1984 respectively in Burundi. They are sisters.", "6. The facts of the case, as submitted by the parties, may be summarised as follows.", "7. C. N. (“the first applicant”) arrived in France in 1994, at the age of sixteen. V. (“the second applicant”) and their three younger sisters arrived in France in 1995. The second applicant was ten years old at the time. Their arrival was arranged by their aunt, N., wife of Mr M., a national of Burundi.", "8. The applicants left their country of origin, Burundi, following the civil war in 1993, during which their parents were purportedly killed. On a trip to Burundi, Mrs M. organised a family council. According to a record of the meeting dated 25 February 1995, it was decided to give guardianship and custody of the applicants and their younger sisters to Mr and Mrs M. The family considered that the couple, who lived in France, were the only members of the family “capable of taking care of [the applicants] and giving them a proper education and upbringing”.", "9. Mr M., a former government minister of Burundi, was a UNESCO staff member and, as such, enjoyed diplomatic immunity. The spouses owned a four-bedroom detached house in Ville d’Avray in the Hauts de Seine département. They had seven children, one of whom was disabled.", "10. When they arrived in France the applicants were housed in what they described as a poorly heated unconverted cellar in the basement of the house. The Government pointed out that it was not a cellar as such, but a basement room with a door opening into the garden and a window. The room contained a boiler, a washing machine and two beds. At the beginning of their stay the applicants shared the room with their three younger sisters.", "11. At the same time, Mr and Mrs M. contacted an evangelical church with a view to placing the applicants’ three younger sisters with foster families, except in the school holidays. They were in fact taken in by two families in 1995 and 1996. In June 1996 two of the three sisters went to spend a few weeks with Mr and Mrs M.; the foster family, who had parental authority over them, had to take legal action to get them back in April 1997.", "12. The applicants said that as soon as they arrived they had been made to do all the housework and domestic chores necessary for the upkeep of the house and the M. family of nine. They alleged that they had been used as “housemaids”. The first, older applicant said that she had to look after the family’s disabled son and do the gardening. They were not paid for their work or given any days off.", "13. The applicants affirmed that they had had no access to a bathroom and only an unhygienic makeshift toilet at their disposal. The Government submitted that they were not denied access to the bathroom, but that it was limited to certain times of day. The applicants added that they were not allowed to eat with the family. They were given only pasta, rice and potatoes to eat, and occasionally leftovers from the family’s meat dishes. They had no leisure activities.", "14. The second applicant was a pupil in the Ville d’Avray primary school from May 1995, then in the special general and vocational learning department of a Versailles secondary school from the start of the 1997 school year. As a non-French speaker she had had integration difficulties which she said increased her isolation. Her aunt nevertheless objected to her seeing the school psychologist as suggested by the teaching staff. Nor was the second applicant given any additional help in learning to read French, allegedly because this would have meant paying for her to have school meals. In spite of these difficulties she did well at school. When she got home from school she would have to do her homework then help her sister with the domestic chores.", "15. The first applicant was never sent to school or given any vocational training. She spent all day doing housework and looking after her disabled cousin. The Government pointed out that the applicant had admitted in the course of the subsequent criminal proceedings that she had in fact refused to go to school.", "16. On 19 December 1995 the Hauts de Seine welfare department submitted a report on children in danger to the Nantes public prosecutor according to which there was a risk that the children were being exploited “to do household chores among other things”. Following an investigation by the police child protection services, it was decided not to take any further action.", "17. The first applicant turned eighteen on 23 March 1996. She contended that Mr and Mrs M. did nothing to legalise her situation vis-à-vis the authorities. According to the Government, her situation was not illegal because she was included in her aunt’s diplomatic passport.", "18. From September 1997 the aunt refused to pay the second applicant’s bus fare to school. The applicant explained that when her uncle bought her a bus pass behind his wife’s back, her aunt got very angry and threatened to hit her. When she had no bus pass the second applicant had either to walk to school, which was a forty-five minute walk from where she lived, or to take the bus without a ticket. The applicant said that her aunt also refused to pay for her to have school meals.", "19. In July 1998 the second applicant, after going several months without urgent dental treatment, had had to go to a dentist near the school at her own initiative. She had never received the orthopaedic treatment the dentist prescribed. As to the first applicant, she alleged that she had been hospitalised three times under her cousin’s name after being beaten by one of the of the boys in the family.", "20. The applicants further alleged that they had been physically and verbally harassed on a daily basis by their aunt, who regularly threatened to send them back to Burundi to punish them and made disparaging remarks about their late parents. The second applicant claimed that once, when she was sick in bed, her aunt had threatened to hit her with a broomstick to make her clean the kitchen.", "21. On 4 January 1999 the association “ Enfance et Partage ” drew the attention of the Nanterre public prosecutor’s office to the applicants’ situation, stating that the conditions they lived in – in the insalubrious, unheated basement of the M. family’s house – were contrary to human dignity, that the first applicant was used as a “housemaid” and had to look after the family’s disabled eldest son, that their aunt refused to buy the second applicant a travel card or pay for her to have school meals, and that both girls complained of ill-treatment and physical aggression by their aunt. The applicants ran away from the house the next day and were taken into the association’s care.", "22. On 7 January 1999 the Nanterre public prosecutor’s office applied to the Director General of UNESCO to have Mr M.’s diplomatic immunity lifted.", "23. On 27 January 1999 that request was granted, exceptionally, as part of an investigation into allegations of ill-treatment. The immunity of Mr M.’s wife was also lifted.", "24. On 29 January 1999 a preliminary investigation was opened on the instructions of the Nanterre public prosecutor’s office.", "25. On 2 February 1999 the police interviewed the two applicants, who confirmed the terms of the report by “ Enfance et Partage ”. They did, however, explain that their uncle had tried to temper his wife’s behaviour. The second applicant said that when their situation was first reported in 1995 she had not dared to tell the police the truth for fear of reprisals from her aunt.", "26. That same day the association “ Enfance et Partage ” gave the police photos taken by the applicants in November 1998 of the basement they lived in. The photos confirmed the deplorable conditions of hygiene and insalubrity they lived in.", "27. On 3 February 1999 Mr M. was interviewed by the police. He said he had done nothing wrong and that he had helped the applicants by bringing them to France. He told them that his wife, Mrs M., had left for Burundi on 15 January 1999. He also complained about an article in the press on 28 January 1999 making accusations against him and his wife.", "28. The police established that, contrary to what Mr M. had told them, his wife had gone back to Burundi on 2 February 1999, a few days after the article appeared in the press.", "29. Mr M. denied the investigators access to his house, alleging that his lawyer was not available. He added that renovation work was being done on the house.", "30. On 16 February 1999 a judicial investigation was opened against Mr and Mrs M. for degrading treatment (Articles 225-14 and 225-15 of the Criminal Code) and against Mrs M. for wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days. An arrest warrant was issued against Mrs M. and Mr M. was placed under judicial supervision.", "31. The applicants joined the proceedings as civil parties.", "32. On 22 April and 3 May 1999 the applicants were heard by the investigating judge. They confirmed their previous statements and added that their situation at the home of Mr and Mrs M. had gradually deteriorated. The second applicant told the judge that at the time of the first report and investigation in 1995-1996 she had said nothing to the police because “things were not [yet] all that bad” with her aunt (a fact confirmed by the first applicant at a later hearing on 30 June 2000). The applicants emphasised the leading role played by their aunt, who had no qualms about hitting them and waking them up in the middle of the night if there was the slightest problem. The first applicant said she had even had to sleep outside the house one night. The applicants confirmed that their uncle had tried to smooth things over, but he was frequently away from home. When present he would often try to reason with his wife, and had even paid their bus fares or bought them clothes without his wife knowing.", "33. On 29 April 1999 Mr M. was charged with infringement of human dignity under Articles 225-14 and 225-15 of the Criminal Code.", "34. On 30 June 1999 the results of the medico-psychological examination of the two applicants ordered by the investigating judge were submitted. They revealed that the applicants showed no signs of serious psychological disorders or psychiatric decompensation, but that the psychological impact of what they had experienced was characterised by mental suffering, combined, in the case of the first applicant, with feelings of fear and a sense of abandonment, as the threat of being sent back to Burundi was synonymous in her mind with a threat of death and the abandonment of her younger sisters. As to the second applicant, the report stated that being sent back to Burundi was felt to be “even worse” than living with Mr and Mrs M.", "35. On 30 June and 14 September 1999 the investigating judge noted that Mrs M. had twice failed to appear. She explained that she had been in Burundi. She was not heard until 15 June 2000.", "36. Investigations carried out at the home of Mr and Mrs M. at the judge’s request revealed that the basement of the house had been completely refurbished after the applicants left.", "37. On 5 February 2001 the investigating judge at the Nanterre tribunal de grande instance ordered Mrs M.’s committal for trial before the criminal court on charges of wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days (an offence punishable under Article 222-13 of the Criminal Code) in respect of the second applicant, and on charges of subjecting a person who is vulnerable or in a position of dependence to working conditions (in respect of the first applicant) or living conditions (in respect of both applicants) incompatible with human dignity (offences punishable under Articles 225-14 and 225-15 of the Criminal Code). In the same order, the investigating judge requested the termination of the proceedings against Mr M. concerning the charges of offences against human dignity.", "38. On 7 February 2001 the applicants appealed against the decision to terminate that part of the proceedings.", "39. On 18 December 2002 the Investigation Division of the Versailles Court of Appeal ordered further inquiries to determine the exact scope and measure of the lifting of Mr M.’s immunity by the Director General of UNESCO, and whether it applied to the preliminary investigation alone or to the proceedings as a whole.", "40. On 30 April 2003 the Investigation Division of the Versailles Court of Appeal set aside the order of 5 February 2001 terminating part of the proceedings and ordered Mr M.’s committal for trial by the criminal court for having subjected the applicants, and also their three younger sisters, to treatment contrary to human dignity. As to the scope of the lifting of Mr M.’s immunity, the court found that no immunity applied, for the following reasons:", "“The explicit terms of the letter addressed to the court on 20 January 2003 by the Protocol Department of the Ministry of Foreign Affairs on behalf of the Minister, who has authority to interpret and measure the scope of the immunity granted to diplomats, dispel all uncertainty about the situation of Mr [M.];", "the latter ceased to be a UNESCO staff member on 30 November 2001;", "as the deeds in question were not committed in the course of his duties, he no longer enjoys diplomatic immunity;", "there is accordingly no obstacle to his prosecution;”", "41. Mr M. appealed against that ruling.", "42. On 12 April 2005 the Criminal Division of the Court of Cassation confirmed that Mr M. did not enjoy diplomatic immunity, but set aside the Court of Appeal’s judgment of 30 April 2003 in so far as it had ordered Mr. M.’s committal for trial for offences committed against the applicants’ three sisters, as this was outside the remit of the investigating judge.", "43. On 22 January 2007 the Nanterre Criminal Court rejected the objections as to admissibility raised by Mr and Mrs M. based on their diplomatic immunity. It adjourned the case to a hearing on 17 September 2007 to rule on the merits.", "44. In a judgment of 17 September 2007 the Nanterre Criminal Court found Mr and Mrs M. guilty as charged. Mr M. was sentenced to twelve months’ imprisonment, suspended, and fined 10,000 euros (EUR). Mrs M. was sentenced to fifteen months’ imprisonment, suspended, and fined EUR 10,000. The couple were jointly ordered to pay the first applicant EUR 24,000 in damages, and the second applicant one symbolic euro, as she had requested. The relevant passages of the judgment read as follows:", "“... It appears from the information available that [the applicants], who found themselves in a situation of total dependence at the time, who were orphans and minors and whose papers had been taken away, were housed by their uncle and aunt in deplorable conditions of hygiene in an unheated, insalubrious basement; the photos adduced by counsel for the civil parties ... show the state of the place they lived in from 1995 to 1999; they had no access to the bathroom and had to fetch a pail of water from the kitchen to wash themselves, and the elder sister [the first applicant] was used as a housemaid by the couple [Mr and Mrs M.] with no day off and no pay.", "It is further established that they did not pay for [the second applicant’s] school meals or travel card, obliging her to walk several kilometres to school along a road through woods.", "It is also established that the accused refused to give them the medical treatment they needed, even though [Mr M.] had registered them with the UNESCO social security scheme.", "Although some of the girls’ statements indicate that the role played by [Mr M.] was a rather passive one, probably to avoid having to stand up to his wife’s strong character, he could not have been unaware of the difference in the way his nieces and his own children were treated.", "His frequent absences from home could not have made him unaware of the situation. In addition, he refused to let the police take photos of the basement, and then took pains to have it very comfortably refurbished when released from police custody.", "That being so, the actus reus and mens rea of the offence against human dignity in respect of the two accused are made out and they must be convicted.”", "45. Mr and Mrs M. appealed against that judgment on 24 and 25 September 2007.", "46. On 29 June 2009 the Versailles Court of Appeal set aside the judgment on the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions, acquitted the defendants of that charge and dismissed the applicants’ claims for compensation for the damage suffered in respect of that charge. However, it upheld the guilty finding against Mrs M. on the charge of aggravated wilful violence against the second applicant. She was fined EUR 1,500 and ordered to pay one euro in respect of non-pecuniary damage.", "47. The relevant passages of the judgment read as follows:", "“ The charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions :", "It is not disputed that [Mrs M.] went to fetch her nieces at a time when a civil war was raging in Burundi that left 250,000 people dead and orphaned about 50,000 children; ... the elements of the proceedings show that [Mr and Mrs M.] paid their nieces’ fare from Burundi to France; this shows that their concern was to protect these members of their family by placing the children out of harm’s way; ...", "Under Article 225-14 of the Criminal Code in force at the material time, offences against human dignity were characterised by the fact of abusing a person’s vulnerability or situation of dependence to subject them to working or living conditions incompatible with human dignity, and were punishable by two years’ imprisonment and a fine of 500,000 francs (FRF); the legislation now in force punishes such offences more severely and gives them a broader definition; ... the new, harsher law cannot be applied retroactively;", "In the instant case, while the living and domestic working conditions were poor, uncomfortable and blameworthy, they cannot be qualified as degrading in the context and the circumstances of family solidarity with no intention of economic gain or of exploiting another’s work; the living and working conditions the defendants gave their nieces were not intended to debase them as human beings or to violate their fundamental rights, but obeyed a duty to help them; ...", "[Mr and Mrs M.] cannot be blamed for not having asked their own children, who shared their rooms, ... to give up their comfort; and they cannot reasonably be blamed for giving more to their own children than to their nieces; ...", "The case materials show that the boiler which heated the house was in the basement where the complainants lived and the temperature recorded in their room during the investigation was in excess of 20 oC;", "As stated by the defendants’ daughter ... and confirmed by [the second applicant], the aunt had not formally denied them access to the bathroom, but simply wanted to rationalise its use because of the large number of people who had to use it; ...", "... even though more could have been done to secure [the first applicant’s] integration, [Mrs M.] did call the welfare services for help; the fact that [the first applicant], who did not speak French and did not want to go to school, was required to play an active part in the housework as the eldest sister, even without pay, did not amount to working conditions incompatible with human dignity, or slave labour, or violation of any fundamental personal rights, but rather to repayment for her having been permanently taken into the home and care of an already large family; there is no evidence in the case file that [Mr and Mrs M.] stood to make any financial gain by taking their nieces into their home and care, for they were an extra financial burden for them, taken on out of moral obligation;", "According to the testimony, the living and working conditions were compatible with [the applicants’] human dignity; and it has not been established that the defendants took advantage of the vulnerability of their orphaned nieces or the fact that they were dependent on them;", "Therefore, as the mens rea of the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions has not been made out, the constituent elements of the offence have not been established and the judgment in respect of this charge must be set aside ...", "The charges against [Mrs M.] of wilful violence with two aggravating circumstances on [the second applicant], a child under 15 years of age, by a person in a position of authority:", "[The second applicant] told the police that her aunt hit her when she asked for a travel card or when her uncle bought her one ...; she also alleged that she was slapped when she accidentally dropped a plate; on one occasion her aunt allegedly threatened to hit her with a broom and on another occasion she violently scratched her hand; ...", "There is no doubt that [the second applicant] was under fifteen years of age between January 1995 and 10 December 1998, and that she was an orphan under the authority of her aunt, who had taken her in; the investigation established that [Mrs M.] shouted at [the second applicant], scolded her and threatened to send her back to Africa;", "The facts are established ...; the charge is made out in all its elements ...; the judgment convicting [Mrs M.] of aggravated violence must be upheld ...”", "48. The applicants appealed against that judgment on 3 July 2009. Mrs M. also appealed. The Principal Public Prosecutor did not appeal.", "49. On 23 June 2010 the Criminal Division of the Court of Cassation rejected the appeals lodged by the applicants and Mrs M. The relevant passage from the judgment reads as follows:", "“The terms of the impugned judgment place the Court of Cassation in a position to affirm that the Court of Appeal, for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it, stated the reasons for its decision that, in the light of the evidence before it, the charge of subjecting vulnerable or dependent people, including at least one minor, to living or working conditions incompatible with human dignity had not been made out against the accused, and had thus justified its decision dismissing the claims of the civil parties. ...”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Criminal Code in force at the material time", "Article 225-13", "“Abusing a person’s vulnerable or dependent situation to obtain the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed is punished by two years’ imprisonment and by a fine of 500,000 francs.”", "Article 225-14", "“Abusing a person’s vulnerable or dependent situation by subjecting him or her to working or living conditions incompatible with human dignity is punished by two years’ imprisonment and by a fine of 500,000 francs.”", "Article 225-15", "“The offences under articles 225-13 and 225-14 are punished by five years’ imprisonment and by a fine of 1,000,000 francs when they are committed against more than one person.”", "B. Criminal Code as amended by the Law of 18 March 2003 on homeland security", "Article 225-13", "“Obtaining the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed from a person whose vulnerability or dependence is obvious or known to the offender is punished by five years’ imprisonment and by a fine of 150,000 euros.”", "Article 225-14", "“Subjecting a person whose vulnerability or dependence is obvious or known to the offender to working or living conditions incompatible with human dignity is punished by five years’ imprisonment and by a fine of 150,000 euros.”", "Article 225-15", "“The offences under articles 225-13 and 225-14 are punished by seven years’ imprisonment and by a fine of 200,000 euros when they are committed against more than one person.", "Where they are committed against a minor, they are punished by seven years’ imprisonment and by a fine of 200,000 euros.", "Where they are committed against two or more people, one or more of whom are minors, they are punished by 10 years’ imprisonment and by a fine of 300,000 euros.”", "Article 225-15-1", "“For the application of articles 225-13 and 225-14, minors or people who have been victims of the acts described by these articles upon their arrival on French national territory are considered to be vulnerable or in a situation of dependence.”", "C. Case-law cited by the applicants", "50. Court of Cassation, appeal no. 08-80787, 13 January 2009:", "“... As to the single ground for appeal based on the violation of Article 4 of the European Court of Human Rights, and of Articles 225-14 of the Criminal Code, 1382 of the Civil Code, 2, 591 and 593 of the Code of Criminal Procedure;", "In so far as the judgment acquitted Affiba Z... of the charge of subjecting a vulnerable or dependent person to working or living conditions incompatible with human dignity; ...", "Considering that according to the case file Affiba Z..., who employed and housed Marthe X..., who was born on 22 March 1979 in Côte-d’Ivoire, from December 1994, the date of her illegal arrival in France at the age of 15 and a half, until 2000, was sent before the criminal court on charges of aiding unlawful entry and residence, employing an alien with no work permit, obtaining unpaid services from a vulnerable person and subjecting that person to working and living conditions incompatible with human dignity; that the impugned judgment, ruling on the appeals lodged by the accused, the civil party and the public prosecutor, upheld the judgment in so far as it found Affiba Z... guilty of the first three charges and acquitted her of the last charge;", "Considering that, for the reasons given and adopted, while Marthe X..., whose passport Affiba Z... took from her, had been made to do domestic chores on a permanent basis, with no holidays, in exchange for a little pocket money or subsidies paid in Côte-d’Ivoire, the judgment, in upholding the acquittal, took into account that the young woman had been housed in the same conditions as the family and the accused had shown true affection towards her, and the judges concluded that there had been no offence against human dignity;", "However, in so ruling when all forced labour is incompatible with human dignity, the Court of Appeal failed to draw the legal conclusions of its own findings and to justify its decision vis-à-vis the above-mentioned texts; ...", "Quashes the above judgment of the Paris Court of Appeal ... in respect of the civil action ...”", "III. RELEVANT INTERNATIONAL LAW", "51. The Court refers to paragraphs 49 to 51 of the Siliadin v. France judgment (no. 73316/01, ECHR 2005 ‑ VII) and to paragraphs 137 to 174 of the Rantsev v. Cyprus and Russia judgment (no. 25965/04, ECHR 2010 (extracts)), which present the relevant provisions of the international conventions concerning forced labour, servitude, slavery and human trafficking (Geneva Convention of 25 September 1926 prohibiting slavery; Convention no. 29 of the International Labour Organisation (ILO) of 28 June 1930, on forced labour; Supplementary Convention on the Abolition of Slavery of 30 April 1956; Convention on the Rights of the Child of 20 November 1989; Additional Protocol to the United Nations Convention against Transnational Organised Crime, known as the “Palermo Protocol”, of December 2000; Council of Europe Convention on action against trafficking in human beings, of 16 May 2005) and the relevant extracts from the Council of Europe’s work on the subject (Recommendations 1523 of 26 June 2001 and 1623 of 22 June 2004 of the Parliamentary Assembly, explanatory report of the Council of Europe Convention on action against trafficking in human beings).", "52. The following extracts from “The cost of coercion: global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work”, adopted by the International Labour Conference in 1999:", "“24. The ILO’s definition of forced labour comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily. The work of the ILO supervisory bodies has served to clarify both of these elements. The penalty does not need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of a penalty can take many different forms. Arguably, its most extreme form involves physical violence or restraint, or even death threats addressed to the victim or relatives. There can also be subtler forms of menace, sometimes of a psychological nature. Situations examined by the ILO have included threats to denounce victims to the police or immigration authorities when their employment status is illegal, or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities. Other penalties can be of a financial nature, including economic penalties linked to debts. Employers sometimes also require workers to hand over their identity papers, and may use the threat of confiscation of these documents in order to exact forced labour.", "25. As regards “voluntary offer”, the ILO supervisory bodies have touched on a range of aspects including: the form and subject matter of consent; the role of external constraints or indirect coercion; and the possibility of revoking freely-given consent. Here too, there can be many subtle forms of coercion. Many victims enter forced labour situations initially out of their own choice, albeit through fraud and deception, only to discover later that they are not free to withdraw their labour, owing to legal, physical or psychological coercion. Initial consent may be considered irrelevant when deception or fraud has been used to obtain it.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "53. The second applicant alleged that she had suffered inhuman and degrading treatment at the hands of her aunt and that the State had failed in its obligation to protect her. She relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "54. The Court notes that the domestic courts, including the Versailles Court of Appeal, established that the second applicant had been subjected to violence by her aunt (see relevant parts of judgment in paragraph 47 above).", "55. However, the Court considers that, even assuming that the treatment in question falls within the scope of Article 3 of the Convention, the second applicant can no longer claim to be a victim of a violation of that provision. Indeed, the domestic courts found Mrs M. guilty of aggravated violence. In addition, the second applicant was awarded compensation for the suffering caused, in the amount she claimed. However, the Court will examine whether the ill-treatment inflicted on the second applicant falls within the scope of Article 4 of the Convention in so far as it might be linked to the alleged exploitation.", "56. In these circumstances the Court finds that the second applicant can no longer claim to be a “victim” of a violation of the Convention within the meaning of Article 34. It follows that this complaint is manifestly ill-founded and that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION", "57. The applicants alleged that they were held in servitude and subjected to forced or compulsory labour by Mr and Mrs M. They alleged that the failure of the French State to honour its positive obligations in the matter was in violation of Article 4 of the Convention.", "58. The relevant parts of Article 4 read as follows:", "“1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour.", "...”", "A. Admissibility", "59. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The existence of “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention", "a) The parties’ submissions", "60. The first applicant affirmed that she had been used as a “housemaid” by Mr and Mrs M. with no pay and no time off. She got up early and went to bed late and sometimes had to get up in the middle of the night to tend to the couple’s disabled son. She emphasised that during the four years she spent in the home of Mr and Mrs M. she received no vocational training that might have enabled her to look for another job and escape from their hold. The Versailles Court of Appeal had established that her working and living conditions were “poor, uncomfortable and blameworthy”. She had never willingly agreed to do housework and domestic chores in such conditions. On the contrary, she had worked under the threat of being sent back to Burundi, which to her was synonymous with death and abandoning her younger sisters.", "61. The first applicant also declared that Mr and Mrs M. had kept her in an illegal administrative situation vis-à-vis the French authorities. On this point, in her observations in reply to those of the Government the applicant pointed out that even if it was established that she and the second applicant were included in their aunt’s diplomatic passport, she was still required, as an alien, to be able to present a valid residence permit to the police in the event of an identity check. She also pointed out that according to the agreement of 2 July 1954 between the Government and UNESCO dispensing the spouses and “dependent family members” of diplomats from residence formalities, her situation on French territory was lawful only as long as she stayed with Mr and Mrs M. and was “dependent” on them. She had no possibility of finding accommodation or work outside the home of Mr and Mrs M. and was accordingly all the more dependent on them. According to the first applicant, these circumstances showed that she did the work in question under coercion.", "62. The second applicant, who went to school, affirmed that she had to assist, or even replace the first applicant in the household chores when she came home from school. She considered that Mr and Mrs M. treated her and the first applicant like “dogs”, considering that even a “maid” was paid for the work she did. In her observations in reply to those of the Government, she submitted that the fact that she went to school did not mean that the housework she had to do when she was not in school could not be classified as forced or compulsory labour or servitude. She argued that the mere fact that the work concerned was done at specific times did not suffice to establish that she did it of her own free will or that it was not done under the threat of some form of punishment. On the contrary, she argued that her aunt constantly threatened to send her back to Burundi and that she maltreated her when she refused to do as she was told. As the violence her aunt inflicted on her had been punished by the domestic courts, there could be no doubt that the work she had done had been done under threat of punishment. Lastly, she argued that as she had been between ten and fourteen years old at the material time she could not be considered to have consented to do the housework, which had not been merely occasional or from time to time.", "63. The applicants concluded that as they had been made to do housework for Mr and Mrs M. against their will, they had been subjected to forced or compulsory labour.", "64. The Government completely ruled out the possibility that the second applicant had been subjected to forced labour. They contended that she had been involved in the housework only occasionally, like any other member of the household.", "65. The Government admitted that the first applicant had been relied on more heavily by Mr and Mrs M. to do the housework, as she did not go to school and was the eldest sister. However, the existence of a threat of punishment had not been established in respect of the first applicant. The Government pointed out that the aunt had contacted the social services seeking assistance for her, and had found her a paid job. These factors belied the idea that Mrs M. wanted to keep the applicant in a state of dependency.", "66. The Government concluded that neither the first nor the second applicant had any grounds to claim that they were subjected to forced or compulsory labour within the meaning of Article 4 § 2 of the Convention.", "b) Third-party intervention of the “Aire Centre”", "67. The “Aire Centre”, a non-governmental organisation whose mission is to promote awareness of European human rights law and assist individuals in vulnerable circumstances to assert those rights, submitted that the notion of “control” of an individual was a crucial element common to all the forms of exploitation of human beings covered by Article 4 of the Convention. It stressed the psychological aspects of this “control” in so far as it was exercised in relation to the victim’s vulnerability. It pointed out that the term “control” was not defined in the Convention and called on the Court to specify its meaning and the degree required for the purposes of Article 4, in the light of the relevant international instruments. The “Aire Centre” also asked the Court to explain more precisely to the States, non-governmental organisations and above all the victims, exactly what is covered by the notions contained in Article 4.", "c) The Court’s assessment", "68. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. The first paragraph of this Article makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin, cited above, § 112).", "69. It further reiterates that under Article 4 of the Convention the State may be held responsible not only for its direct actions but also for its failure to effectively protect the victims of slavery, servitude, or forced or compulsory labour by virtue of its positive obligations (see Siliadin, cited above, §§ 89 and 112, and Rantsev, cited above, §§ 284-288).", "70. The Court will first examine whether the applicants were subjected to forced or compulsory labour, and then whether they were kept in servitude by Mr and Mrs M.", "71. In Van der Mussele v. Belgium (23 November 1983, § 32, Series A no. 70) and Siliadin (cited above, § 116) the Court considered, in terms largely inspired by those of Article 2 § 1 of ILO Convention no. 29 of 1930 on forced labour, that forced or compulsory labour within the meaning of Article 4 § 2 of the European Convention means “work or service which is exacted from any person under the menace of any penalty, against the will of the person concerned and for which the said person has not offered himself voluntarily”.", "72. In the instant case the Court observes that the first and second applicants allege that they did work, in the form of household chores, at the home of Mr and Mrs M. against their will.", "73. However, the Court is not persuaded that the two applicants were placed in a similar situation as regards the amount of work done. The first applicant, who did not attend school, was responsible for all the household chores at the home of Mr and Mrs M. and had to take care of their disabled son. She worked seven days a week, with no day off and no pay, rising early and going to bed late (and sometimes even having to get up in the middle of the night to take care of Mr and Mrs M.’s disabled son), and she had no time for leisure activities. In comparison, the second applicant attended school and had time to do her homework when she got home from school. Only then did she help the first applicant with the household chores.", "74. In order to clarify the notion of “labour” within the meaning of Article 4 § 2 of the Convention, the Court specifies that not all work exacted from an individual under threat of a “penalty” is necessarily “forced or compulsory labour” prohibited by this provision. Factors that must be taken into account include the type and amount of work involved. These factors help distinguish between “forced labour” and a helping hand which can reasonably be expected of other family members or people sharing accommodation. Along these lines, in the case of Van der Mussele v. Belgium (23 November 1983, § 39, Series A no. 70) the Court made use of the notion of a “disproportionate burden” to determine whether a lawyer had been subjected to compulsory labour when required to defend clients free of charge as a court-appointed lawyer.", "75. In the present case the Court considers that the first applicant was forced to work so hard that without her aid Mr and Mrs M. would have had to employ and pay a professional housemaid. The second applicant, on the other hand, has not adduced sufficient proof that she contributed in any excessive measure to the upkeep of Mr and Mrs M.’s household. Furthermore, while it is not disputed that the second applicant was the victim of ill-treatment by her aunt, it has not been established that the said violence was directly linked to the alleged exploitation, that is, to the housework in question. The Court is therefore of the opinion that the ill-treatment inflicted on the second applicant by her aunt does not fall within the scope of Article 4.", "76. In view of the above, the Court considers that only the first applicant meets the first of the conditions of “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention, namely that the individual did the work without offering herself for it voluntarily. It remains to be seen whether the work was done “under the menace of any penalty”.", "77. The Court notes that in the global report “The cost of coercion” adopted by the International Labour Conference in 1999 (see paragraph 52 above), the notion of “penalty” is used in the broad sense, as confirmed by the use of the term “any penalty”. The “penalty” may go as far as physical violence or restraint, but it can also take subtler forms, of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal (ibid.).", "78. In the present case the Court notes that Mrs M. regularly threatened to send the applicants back to Burundi, which for the first applicant represented death and abandoning her younger sisters (see paragraph 34 above). It also notes that according to her observations the first applicant had done the work required of her under the threat of being sent back to her country of origin (see paragraph 60 above). In the opinion of the Court, being sent back to Burundi was seen by the first applicant as a “penalty” and the threat of being sent back as the “menace” of that “penalty” being executed.", "79. The Court therefore concludes that the first applicant was subjected to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention by Mr and Mrs M. The second applicant, on the other hand, was placed in a different situation which did not fall within the scope of that provision.", "2. The existence of “servitude” within the meaning of Article 4 § 1 of the Convention", "a) The parties’ submissions", "80. Under this second heading the applicants repeated the allegations set out above (paragraphs 61 and 63) concerning the work they had to do for Mr and Mrs M. In reply to the Government’s observation that she had not been held in servitude because she had not been made to work full time, the second applicant argued that in the Siliadin case, in finding that there was a state of servitude the Court had taken the excessive number of hours worked by the applicant into account among other factors but had not made it the decisive factor. Instead, the Court had defined servitude as “an obligation to provide one’s services that is imposed by the use of coercion”, without specifying the scale of the services concerned.", "81. The applicants alleged that they had been kept in a state of complete administrative and financial dependence on Mr and Mrs M. and had had no choice but to stay in their house and continue to work for them. The first applicant pointed out in particular that she had had no hope of her situation ever improving, repeating the arguments set out in paragraphs 60 and 61 above concerning the lack of any vocational training and her situation as an illegal alien. The second applicant submitted that as a minor placed in the care of her aunt and uncle she had had no choice but to live in their home, and no means of escape from the situation imposed on her.", "82. The applicants contended that the manner in which they had found themselves in the care of Mr and Mrs M. amounted to deceit just like the circumstances in which the applicant in the Siliadin case had been recruited. In their submission the true intentions of Mr and Mrs M. had been anything but to take the place of their late parents and provide for and educate them. On this point the second applicant affirmed that the work she had to do for Mr and Mrs M. had prevented her from doing well at school, leading to her being sent to a school for pupils in difficulty in 1996, even though her teachers had described her as a bright and lively pupil. She further submitted that Mr and Mrs M. had not taken proper care of her health and her development. She had not been given proper dental treatment and had been deprived of all the leisure, games and artistic or sporting activities children of her age normally engaged in.", "83. The applicants concluded that they had been obliged to live and work without pay on another person’s property, facts which amounted to a state of servitude. In addition, they alleged that Mr and Mrs M., in taking them in to exploit them, by deceit and taking advantage of their vulnerability, had behaved in a manner which resembled human trafficking within the meaning of the Council of Europe Convention on action against trafficking in human beings.", "84. The Government disagreed. They pointed out that the second applicant had not worked full time and had attended school. She had admitted to the investigating judge that she had time to do her homework when she got home from school. Indeed, her school reports showed very satisfactory results.", "85. The Government considered that the living conditions in the home of Mr and Mrs M. had not been contrary to human dignity, and that although access to the television and the bathroom were restricted to certain times of day, they had not been denied access. They further observed that the applicants had been brought to France with the approval of the family council back in Burundi, and that being taken in by Mr and Mrs M. offered them better prospects than those of most war orphans in their country of origin. They considered that the applicants’ situation bore no resemblance whatsoever to human trafficking. Far from being presented as housemaids, the applicants were considered as members of the family by Mr and Mrs M. The Government further argued that they had not been in an illegal situation vis-à-vis the French authorities, because their names were in their aunt’s diplomatic passport.", "86. The Government concluded that the applicants had not been the victims of servitude within the meaning of Article 4 § 1. This did not mean that they had not been ill-treated, particularly the younger sister, but Mrs M. had already been convicted of that charge by the domestic courts.", "b) Third-party intervention of the “Aire Centre”", "87. The third-party intervention of the “Aire Centre” generally concerned the notions of “forced or compulsory labour” and “servitude” (see paragraph 67 above).", "c) The Court’s assessment", "88. The Court notes at the outset that the applicants alleged that they were victims of treatment that amounted to human trafficking, referring in that connection to the Council of Europe Convention on action against trafficking in human beings. It is true that in the case of Rantsev v. Cyprus and Russia (cited above, § 279) the Court affirmed that human trafficking itself falls within the scope of Article 4 of the Convention in so far as it is without doubt a phenomenon that runs counter to the spirit and purpose of that provision. However, it considers that, above all, the facts of the present case concern activities related to “forced labour” and “servitude”, legal concepts specifically provided for in the Convention. Indeed, the Court considers that the present case has more in common with the Siliadin case than with the Rantsev case.", "89. The Court next reiterates that servitude is a “particularly serious form of denial of liberty” (see the Commission’s report in the Van Droogenbroeck v. Belgium case, 9 July 1980, § 80, Series B no. 44). What servitude involves is “an obligation to provide one’s services that is imposed by the use of coercion” (see Siliadin, cited above, § 124). As such it is to be linked with the concept of “slavery” within the meaning of Article 4 § 1 of the Convention (ibid. ).", "90. Having regard to the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, of 30 April 1956, the Commission considered that “in addition to the obligation to perform certain services for others, the notion of servitude embraces the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition” (Commission report in the Van Droogenbroeck case, cited above, § 79).", "91. In the light of these criteria the Court observes that servitude corresponds to a special type of forced or compulsory labour or, in other words, “aggravated” forced or compulsory labour. As a matter of fact, the fundamental distinguishing feature between servitude and forced or compulsory labour within the meaning of Article 4 of the Convention lies in the victim’s feeling that their condition is permanent and that the situation is unlikely to change. It is sufficient that this feeling be based on the above-mentioned objective criteria or brought about or kept alive by those responsible for the situation.", "92. In the present case the first applicant was convinced that her administrative situation in France depended on her living with Mr and Mrs M., and that she could not free herself from their hold without placing herself in an illegal situation. That feeling was strengthened by certain incidents, such as her hospitalisation under the name of one of her cousins (see paragraph 19 above). What is more, the applicant did not attend school (the Court cannot take her refusal to enrol when she was a minor into consideration), and she received no training that might have given her any hope of ever finding paid work outside the home of Mr and Mrs M. With no day off and no leisure activities, there was no possibility for her to meet people outside the house whom she might ask for help. The Court accordingly considers that the first applicant had the feeling that her condition – that of having to do forced or compulsory labour at the home of Mr and Mrs M. – was permanent and could not change, especially as it lasted four years (see, mutatis mutandis, Siliadin, cited above, §§ 126 ‑ 129). That state of affairs started when she was still a minor and continued after she came of age. The Court therefore considers that the first applicant was effectively kept in a state of servitude by Mr and Mrs M.", "93. The Court does not have the same assessment of the second applicant’s situation. Unlike her elder sister she attended school and her activities were not confined to Mr and Mrs M.’s home. She was able to learn French, as witnessed by her good marks at school. She was less isolated than her sister, which is why she was able to alert the school nurse to her situation. Lastly, she had time to do her homework when she got home from school (see paragraph 14 above). The Court accordingly considers that the second applicant was not kept in servitude by Mr and Mrs M.", "94. In conclusion, the Court considers that the situation of the first applicant fell within the scope of Article 4 §§ 1 and 2 of the Convention in so far as they concern servitude and forced labour respectively. As to the second applicant, the Court has established that her situation did not fall within the scope of Article 4 §§ 1 and 2, so the State cannot be held responsible for any violation of that provision in her respect.", "95. The Court must now examine whether the State complied with its positive obligations under that provision.", "3. The Respondent State’s positive obligations under Article 4 of the Convention", "a) The parties’ submissions", "96. The applicants contended that French criminal law as it stood at the material time made no provision for the effective repression of forced or compulsory labour or servitude. They referred to the Siliadin case (cited above), where the Court considered that Articles 225-13 and 225-14 of the Criminal Code did not deal specifically with the rights guaranteed by Article 4 of the Convention but concerned, in a much more restrictive way, exploitation through labour and subjection to working and living conditions incompatible with human dignity. The applicants affirmed that this lacuna in French law had paradoxically been confirmed by a judgment of the Court of Cassation of 13 January 2009 (see paragraph 50 above) which made an evolutive interpretation of Articles 225-13 and 225-14 of the Criminal Code.", "97. The applicants also criticised the fact that the Principal Public Prosecutor did not appeal on points of law against the Court of Appeal’s judgment acquitting Mr and Mrs M. of the offence under Article 225-14 of the Criminal Code. Without such an appeal the acquittal had become final and the appeal to the Court of Cassation concerned only the civil aspect of the case. They pointed out that in the Siliadin judgment the Court had taken the lack of an appeal by the Principal Public Prosecutor into account in finding a violation of France’s positive obligations under Article 4 of the Convention.", "98. The applicants considered more generally that the prosecuting authorities in France had a particularly restrictive conception of the notions of human trafficking, servitude and forced labour. They affirmed in particular that numerous cases of human trafficking for purposes of domestic servitude were dropped by the prosecution. Furthermore, the classification of the facts in such cases often reflected neither the totality nor the gravity of the constituent elements of servitude.", "99. In this connection the applicants referred to the obligation for the State to conduct an effective investigation when facts covered by Articles 2 or 3 of the Convention were brought to their attention. The Court had clearly confirmed the existence of such an obligation in respect of the rights guaranteed under Article 4 of the Convention in its Rantsev v. Cyprus and Russia judgment of 7 January 2010. In the present case the applicants pointed out that when the social services submitted a report on children in danger to the public prosecutor in 1995, no further action had been taken. Not until a second report in 1999 was a judicial investigation opened. The applicants alleged that their exploitation continued from 1995 to 1999 even though the prosecuting authorities were aware of the situation. They also complained that the judicial investigation opened in 1999 had only concerned the offence under Article 225-14 of the Criminal Code, and that Mr M. had been brought before the courts only thanks to the applicants, the public prosecutor having failed to appeal against the finding of the investigating judge that there were no grounds for prosecution. Lastly, the applicants wondered whether the judicial authorities – the judges of the Versailles Court of Appeal, in particular – had any real desire to punish those responsible for the offences concerned.", "100. As their main submission, the Government maintained that the acquittal of Mr and Mrs M. on appeal was explained by the fact that the applicants were not the victims of treatment contrary to Article 4 of the Convention.", "101. In the alternative, the Government submitted that the investigation carried out by the police child protection team at the home of Mr and Mrs M. in 1995 had led to no further action because there had been no proof of any wrongdoing. The applicants themselves had been “reluctant” to confide in the authorities and provide them with any evidence of an offence. The Government also pointed out that the second report, in 1999, had led to the criminal proceedings at the origin of the case before the Court.", "102. Concerning the Principal Public Prosecutor’s failure to lodge an appeal on points of law, the Government pointed out that the Prosecutor only used that power when there was a possibility that the Court of Appeal had committed an error of law in its judgment. There was therefore no requirement under Article 13 of the Convention, or positive obligation under Article 4, that such an appeal by the Principal Public Prosecutor should be automatic; that would deprive him of his fundamental role in criminal proceedings. The Government submitted that in the present case the Prosecutor had considered that no error of law made it necessary for him to appeal to the Court of Cassation. In addition, the Government explained that the rule according to which a civil party could appeal on points of law only in respect of his civil interests did not prevent the Court of Cassation from verifying the conformity with the law of the judgment given by the Court of Appeal in the criminal proceedings. The civil part of the proceedings was contingent on the outcome of the criminal proceedings. In the present case the Court of Cassation had considered that the Court of Appeal had found, without any inadequacy, contradiction or infringement of the law, that proof of the offence had not been established.", "b) Third-party intervention of the “Aire Centre”", "103. The “Aire Centre” affirmed that the Council of Europe Convention on action against trafficking in human beings was the reference text when it came to determining the positive obligations incumbent on the State under Article 4 of the Convention. As interpreted in the light of Article 10 of the Council of Europe Convention on action against trafficking in human beings, Article 4 requires the competent authorities to be able to identify victims of actions that breach its provisions. Having regard to that same Council of Europe Convention, and in particular Article 4 (c) thereof, the “Aire Centre” invited the Court to take into consideration the special vulnerability of children in its determination of the positive obligations of the State.", "c) The Court’s assessment", "104. The Court reiterates that States have positive obligations under Article 4 of the Convention (see Siliadin, cited above, § 89). In the present case the Court will distinguish between the positive obligation to penalise and effectively prosecute actions in breach of Article 4 (ibid. , § 112) and the procedural obligation to investigate situations of potential exploitation when the matter comes to the attention of the authorities (see mutatis mutandis, Rantsev, cited above, § 288).", "i. The positive obligation to penalise and effectively prosecute actions in breach of Article 4", "105. In order to honour this obligation the States must set in place a legislative and administrative framework that prohibits and punishes forced or compulsory labour, servitude and slavery (see Siliadin, cited above, §§ 89 and 112, and, mutatis mutandis, Rantsev, cited above, § 285). So, in order to determine whether there has been a violation of Article 4, the relevant legal or regulatory framework in place must be taken into account (see Rantsev, cited above, § 284).", "106. The Court reiterates that in the Siliadin judgment, it considered that Articles 225-13 and 225-14 of the Criminal Code in force at the time did not afford the applicant, who was a minor, practical and effective protection against the actions of which she was a victim ( Siliadin, cited above, § 148). In reaching that conclusion the Court found that the provisions concerned were open to very differing interpretations from one court to the next (ibid. , § 147). It also noted that, as the Principal Public Prosecutor did not appeal on points of law against the Court of Appeal’s judgment acquitting the offenders, the appeal to the Court of Cassation concerned only the civil aspect of the case (ibid. , § 146). Emphasising that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of fundamental values, the Court found in the Siliadin judgment that there had been a violation of the French State’s positive obligations under Article 4 of the Convention.", "107. In the present case, the Court notes that the domestic law situation is the same as in the Siliadin case. The amendments made to the legislation in 2003 (see “Relevant domestic law and practice”) do not alter the Court’s finding in that regard. Furthermore, as in the Siliadin case, the fact that the Principal Public Prosecutor did not appeal on points of law against the Court of Appeal’s judgment acquitting Mr and Mrs M. of the charge under Article 225-14 of the Criminal Code meant that in the present case too the appeal to the Court of Cassation concerned only the civil aspect of the case.", "108. The Court sees no reason in the present case to depart from its finding in the Siliadin case. It follows that there has been a violation of Article 4 of the Convention in respect of the first applicant as regards the State’s positive obligation to set in place a legislative and administrative framework to effectively combat servitude and forced labour.", "ii. The procedural obligation to investigate situations of potential exploitation", "109. To be effective, the investigation must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of the individuals responsible. It is an obligation not of result but of means (see Rantsev, cited above, § 288). A requirement of promptness and reasonable expedition is implicit in all cases, but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency (ibid. ).", "110. The Court notes that an investigation was carried out in 1995 by the police child protection services. Following that investigation the public prosecutor found that there was not enough evidence that an offence had been committed; the Court will not question that assessment of the facts in the absence of any evidence of a lack of diligence on his part. Furthermore, the Court points out that the applicants admitted to the investigating judge that their situation at the home of Mr and Mrs M. at the time had not yet deteriorated to the point that it was unbearable (see paragraph 32 above). The second applicant also admitted that she had not fully explained her situation to the police in 1995 (see paragraph 25 above). In these circumstances the Court sees no evidence of unwillingness on the part of the authorities to identify and prosecute the offenders, particularly considering that in 1999 a new investigation had taken place, which led to the criminal proceedings now before the Court.", "111. The Court accordingly considers that there has been no violation of Article 4 of the Convention in respect of the first applicant as regards the procedural obligation of the State to conduct an effective investigation into cases of servitude and forced labour.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "112. The applicants also complained that they had not had an effective remedy in so far as there had been no effective investigation following their complaint that was capable of leading to the punishment of those responsible. They relied on Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "113. The Court notes that this complaint is subsumed by the complaint alleging a violation of the positive procedural obligations under Article 4, which form a lex specialis in relation to the general obligations under Article 13. After examining the merits of the complaint that no effective investigation had been carried out from the standpoint of the State’s positive obligations under Article 4, the Court found that there had been no violation of that provision on this count.", "114. The Court accordingly considers it unnecessary to examine separately the complaint concerning the alleged violation of Article 13.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "115. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "116. The first applicant claimed EUR 24,000 in respect of pecuniary damage. She pointed out that the Nanterre Criminal Court had awarded her that amount in compensation for the damage sustained. However, as the Versailles Court of Appeal had acquitted Mr and Mrs M. of the charges under Articles 225-14 and 225-15 of the Criminal Code, all the first applicant’s claims in the civil proceedings had been dismissed.", "117. The second applicant made no claim in respect of pecuniary damage.", "118. The applicants each claimed EUR 15,000 EUR in respect of non-pecuniary damage. They argued that they had been placed in a situation contrary to Article 4 of the Convention for four years without the persons responsible being convicted and without the first investigation carried out in 1995 putting a stop to the situation.", "119. The Government pointed out that the Nanterre Criminal Court had awarded the first applicant EUR 24,000 in compensation for all damage sustained, without distinguishing between the pecuniary and non-pecuniary dimensions, which were difficult to distinguish. The Government considered that that sum of EUR 24,000 should be considered as compensation for all the damage sustained by the first applicant. They acknowledged, however, that there was also the specific complaint resulting from the need to apply to the Court to find a violation of the rights guaranteed under Article 4 of the Convention. They considered that, should the Court find a violation of Article 4, a total award of EUR 30,000 would suffice as just satisfaction for the damage sustained by the first applicant.", "120. As to the second applicant, the Government pointed out that she had never asked the domestic courts for any compensation other than one symbolic euro. Her situation had also been different from that of the first applicant in several respects. The Government therefore considered that if the Court were to find violation of Article 4 of the Convention in respect of the second applicant, she should be awarded EUR 6,000 in respect of non-pecuniary damage.", "121. The Court notes first of all that it has found no violation of the Convention in respect of the second applicant. There is therefore no reason to award her just satisfaction. As to the first applicant, the Court has found a violation of Article 4 in so far as the criminal law of the respondent State did not afford her practical and effective protection against the treatment of which she was a victim, which amounted to servitude and forced labour. Ruling on an equitable basis, the Court awards the first applicant the sum of EUR 30,000, plus any taxes that may be payable on that sum. It considers, in agreement with the Government, that this sum is awarded in respect of all the damage sustained by the first applicant.", "B. Costs and expenses", "122. In their initial observations the applicants explained that they were not able at that stage in the proceedings to calculate their total costs and expenses. They would submit the exact figures to the Court as soon as they were available.", "123. The Government noted that no claim for costs and expenses had been submitted in the form prescribed by the Court.", "124. According to the Court’s case-law, an applicant’s costs and expenses may be reimbursed only if they have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes, like the Government, that no quantified claim for costs and expenses has been submitted in the requisite form and time. In such conditions no award can be made to the first applicant in that respect.", "C. Default interest", "125. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "7. Mr. X and his daughter Y were born in 1929 and on 13 December 1961 respectively. The daughter, who is mentally handicapped, had been living since 1970 in a privately-run home for mentally handicapped children.", "8. During the night of 14 to 15 December 1977, Miss Y was woken up by a certain Mr. B, the son-in-law of the directress; he lived with his wife on the premises of the institution although he was not employed there. Mr. B forced the girl to follow him to his room, to undress and to have sexual intercourse with him.", "This incident, which occurred on the day after Miss Y ’ s sixteenth birthday, had traumatic consequences for her, causing her major mental disturbance.", "9. On 16 December 1977, Mr. X went to the local police station to file a complaint and to ask for criminal proceedings to be instituted.", "The police officer said that since Mr. X considered his daughter unable to sign the complaint because of her mental condition, he could do so himself. The statement lodged by Mr. X read as follows: \"In my capacity as father I denounce the offences committed by Mr. B on the person of my daughter. I am doing this because she cannot do so herself, since, although sixteen years of age, she is mentally and intellectually still a child.\"", "10. The police officer drew up a report and it was signed by Mr. X (Articles 163 and 164 of the Code of Criminal Procedure). The officer subsequently informed the public prosecutor ’ s office that in the light of the father ’ s statement and of his own observations concerning the girl ’ s mental condition, she did not seem to him capable of filing a complaint herself. According to the headmaster of the school she was attending and another teacher there, she was unable to express her wishes concerning the institution of proceedings.", "11. On 29 May 1978, the public prosecutor ’ s office provisionally decided not to open proceedings against Mr. B, provided that he did not commit a similar offence within the next two years. The official in charge of the case so informed Mr. X at a meeting on 27 September 1978.", "12. On 4 December 1978, Mr. X appealed against the decision of the public prosecutor ’ s office to the Arnhem Court of Appeal, under Article 12 of the Code of Criminal Procedure; he requested the court to direct that criminal proceedings be instituted.", "In a supplementary memorial of 10 January 1979, he pointed out that subject to an exhaustive list of exceptions none of which applied in the instant case, a legal representative was entitled to act on behalf of the complainant.", "The Court of Appeal dismissed the appeal on 12 July 1979. In fact, it considered it doubtful whether a charge of rape (Article 242 of the Criminal Code; see paragraph 14 below) could be proved. As for Article 248 ter (see paragraph 16 below), it would have been applicable in the instant case, but only if the victim herself had taken action. In the Court of Appeal ’ s view, the father ’ s complaint (Article 64 para. 1 of the Criminal Code; see paragraph 16 below) could not be regarded as a substitute for the complaint which the girl, being over the age of sixteen, should have lodged herself, although the police had regarded her as incapable of doing so; since in the instant case no one was legally empowered to file a complaint, there was on this point a gap in the law, but it could not be filled by means of a broad interpretation to the detriment of Mr. B.", "13. By virtue of Article 445 of the Code of Criminal Procedure, there was no possibility of appealing on a point of law to the Supreme Court ( Hoge Raad ) against this decision." ]

[ "II. RELEVANT DOMESTIC LAW", "14. As regards sexual offences, the Netherlands Criminal Code makes a distinction between rape (Article 242) and indecent assault (Article 246), recourse to physical violence also being a constituent element of the latter offence.", "15. Other more specific provisions afford in this area protection to certain categories of persons whose age, position of dependence or physical incapacity renders it difficult or impossible for them to determine or impose their wishes.", "Articles 244 and 245, respectively, make it a criminal offence to have sexual intercourse with a girl under the age of twelve or with a girl between the ages of twelve and sixteen, and under Article 247 it is a criminal offence to commit an indecent assault on boys or girls under the age of sixteen.", "Articles 243 and 247 concern, respectively, sexual intercourse with, and indecent assault on, a woman known to the offender to be unconscious or helpless. According to the Supreme Court, however, the word \"helpless\" refers only to physical incapacity.", "Article 249 relates to indecent acts committed with a minor who is in a position of dependence vis-à-vis the perpetrator.", "Finally, Article 239 concerns indecency, either in public or while another person is present against his will.", "Save for Article 245, none of these provisions makes the institution of criminal proceedings conditional on the filing of a complaint by the victim.", "16. The same does not apply to Article 248 ter, whereby a sentence of not more than four years ’ imprisonment may be imposed on any person who, \"through gifts or promises ..., through abuse of a dominant position resulting from factual circumstances, or through deceit, deliberately causes a minor of blameless conduct to commit indecent acts with him or to suffer such acts from him\": in a case of this kind, the offender can be prosecuted only on complaint by the actual victim.", "Under Article 64 para. 1, however, the legal representative may lodge the complaint on behalf of the victim if the latter is under the age of sixteen or is placed under guardianship ( curateele ); this latter institution exists only for persons who have reached the age of majority, namely twenty-one (Article 378, Book I, of the Civil Code).", "17. At the hearings, counsel for the Government informed the Court that the Ministry of Justice had prepared a Bill modifying the provisions of the Criminal Code that related to sexual offences. Under the Bill, it would be an offence to make sexual advances to a mentally handicapped person.", "PROCEEDINGS BEFORE THE COMMISSION", "18. Mr. X applied to the Commission on 10 January 1980 (application no. 8978/80). He claimed that his daughter had been subjected to inhuman and degrading treatment, within the meaning of Article 3 (art. 3) of the Convention, and that the right of both his daughter and himself to respect for their private life, guaranteed by Article 8 (art. 8), had been infringed. He further maintained that the right to respect for family life, also guaranteed by the same Article, meant that parents must be able to have recourse to remedies in the event of their children being the victims of sexual abuse, particularly if the children were minors and if the father was their legal representative. In addition, Mr. X claimed that he and his daughter had not had an effective remedy before a national authority as required by Article 13 (art. 13), and that the situation complained of was discriminatory and contrary to Article 14 (art. 14).", "19. The Commission declared the application admissible on 17 December 1981. In its report of 5 July 1983 (Article 31) (art. 31), it expressed the opinion:", "- as regards Miss Y,", "that there had been a breach of Article 8 (art. 8) of the Convention (unanimously), but not of Article 3 (art. 3) (fifteen votes against one);", "that it was not necessary to examine the application either under Article 14 taken in conjunction with Article 8 (art. 14+8) or Article 3 (art. 14+3), or under Article 13 (art. 13);", "- as regards Mr. X, that no separate issue arose concerning his right to respect for family life.", "The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "20. In their memorial of 18 June 1984, the Government \"respectfully request the Court to hold that there has been no violation of the Convention in the present case\".", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8), TAKEN ALONE, AS REGARDS MISS Y", "21. According to the applicants, the impossibility of having criminal proceedings instituted against Mr. B violated Article 8 (art. 8) of the Convention, which reads:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "The Government contested this claim; the Commission, on the other hand, agreed with it in its essentials.", "22. There was no dispute as to the applicability of Article 8 (art. 8): the facts underlying the application to the Commission concern a matter of \"private life\", a concept which covers the physical and moral integrity of the person, including his or her sexual life.", "23. The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.", "1. Necessity for criminal-law provisions", "24. The applicants argued that, for a young girl like Miss Y, the requisite degree of protection against the wrongdoing in question would have been provided only by means of the criminal law. In the Government ’ s view, the Convention left it to each State to decide upon the means to be utilised and did not prevent it from opting for civil-law provisions.", "The Court, which on this point agrees in substance with the opinion of the Commission, observes that the choice of the means calculated to secure compliance with Article 8 (art. 8) in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation. In this connection, there are different ways of ensuring \"respect for private life\", and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. Recourse to the criminal law is not necessarily the only answer.", "25. The Government cited the difficulty encountered by the legislature in laying down criminal-law provisions calculated to afford the best possible protection of the physical integrity of the mentally handicapped: to go too far in this direction might lead to unacceptable paternalism and occasion an inadmissible interference by the State with the individual ’ s right to respect for his or her sexual life.", "The Government stated that under Article 1401 of the Civil Code, taken together with Article 1407, it would have been possible to bring before or file with the Netherlands courts, on behalf of Miss Y:", "- an action for damages against Mr. B, for pecuniary or non-pecuniary damage;", "- an application for an injunction against Mr. B, to prevent repetition of the offence;", "- a similar action or application against the directress of the children ’ s home.", "The applicants considered that these civil-law remedies were unsuitable. They submitted that, amongst other things, the absence of any criminal investigation made it harder to furnish evidence on the four matters that had to be established under Article 1401, namely a wrongful act, fault, damage and a causal link between the act and the damage. Furthermore, such proceedings were lengthy and involved difficulties of an emotional nature for the victim, since he or she had to play an active part therein.", "26. At the hearings, the Commission ’ s Delegate adopted the applicants ’ submissions in their essentials; he also doubted whether Article 1401 could provide a proper basis for an award of compensation for non-pecuniary damage. He added that the need for protection existed erga omnes, whilst an injunction could only be directed to a limited circle of persons. Finally, the civil law lacked the deterrent effect that was inherent in the criminal law.", "27. The Court finds that the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is normally regulated.", "Moreover, as was pointed out by the Commission, this is in fact an area in which the Netherlands has generally opted for a system of protection based on the criminal law. The only gap, so far as the Commission and the Court have been made aware, is as regards persons in the situation of Miss Y; in such cases, this system meets a procedural obstacle which the Netherlands legislature had apparently not foreseen.", "2. Compatibility of the Netherlands legislation with Article 8 (art. 8)", "28. According to the Government, it was the exceptional nature of the facts of the case which disclosed the gap in the law and it could not be said that there had been any failure on the part of the legislature. The Criminal Code admittedly contained no specific provision to the effect that it was an offence to make sexual advances to the mentally handicapped. However, criminal proceedings could in certain circumstances be instituted on the basis of Article 239 para. 2 of the Criminal Code, with or without a complaint by the victim, against anyone who violated the sexual integrity of a mentally handicapped person. Under this Article, it was an offence to commit an act of indecency \"while another person is present against his will\", a phrase which the Supreme Court had interpreted as also covering a person who was the actual victim of an indecent act.", "According to the applicants, on the other hand, the current Criminal Code offered insufficient protection (see paragraphs 41-43 of the Commission ’ s report).", "29. Two provisions of the Criminal Code are relevant to the present case, namely Article 248 ter and Article 239 para. 2.", "Article 248 ter requires a complaint by the actual victim before criminal proceedings can be instituted against someone who has contravened this provision (see paragraph 16 above). The Arnhem Court of Appeal held that, in the case of an individual like Miss Y, the legal representative could not act on the victim ’ s behalf for this purpose. The Court of Appeal did not feel able to fill this gap in the law by means of a broad interpretation to the detriment of Mr. B. It is in no way the task of the European Court of Human Rights to take the place of the competent national courts in the interpretation of domestic law (see, mutatis mutandis, the Handyside judgment of 7 December 1976, Series A no. 24, p. 23, para. 50); it regards it as established that in the case in question criminal proceedings could not be instituted on the basis of Article 248 ter.", "As for Article 239 para. 2 (see paragraph 15 above), this is apparently designed to penalise indecent exposure and not indecent assault, and was not clearly applicable to the present case. Indeed, no one, even the public prosecutor ’ s office, seems to have considered utilising this provision at the time, or even referring to it at the outset of the Strasbourg proceedings.", "30. Thus, neither Article 248 ter nor Article 239 para. 2 of the Criminal Code provided Miss Y with practical and effective protection. It must therefore be concluded, taking account of the nature of the wrongdoing in question, that she was the victim of a violation of Article 8 (art. 8) of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14, TAKEN IN CONJUNCTION WITH ARTICLE 8 (art. 14+8), AS REGARDS MISS Y", "31. The applicants contended that the difference of treatment established by the legislature between the various categories of persons deserving of special protection against sexual assaults amounted to discrimination contrary to Article 14 (art. 14) of the Convention, which reads as follows:", "\"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "The Government disputed this contention. The Commission considered that no separate issue arose.", "32. Article 14 (art. 14) has no independent existence; it constitutes one particular element (non-discrimination) of each of the rights safeguarded by the Convention. The Articles enshrining those rights may be violated alone or in conjunction with Article 14 (art. 14). An examination of the case under Article 14 (art. 14) is not generally required when the Court finds a violation of one of the former Articles taken alone. The position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case, but this does not apply to the breach of Article 8 (art. 8) found in the present proceedings (see, mutatis mutandis, the above-mentioned Airey judgment, Series A no. 32, p. 16, para. 30).", "The Court accordingly does not deem it necessary to examine the case under Article 14 as well.", "III. ALLEGED VIOLATION OF ARTICLE 3, TAKEN ALONE (art. 3) OR IN CONJUNCTION WITH ARTICLE 14 (art. 14+3), AS REGARDS MISS Y", "33. According to the applicants, Miss Y suffered at the hands of Mr. B \"inhuman and degrading treatment\" contrary to Article 3 (art. 3) of the Convention. They maintained that, for the purposes of this provision, the State was in certain circumstances responsible for the acts of third parties and that the chronic psychological trauma caused to Miss Y had attained such a level as to fall within the ambit of that Article (art. 3).", "34. According to the Commission, Article 3 (art. 3) had not been violated since there was no close and direct link between the gap in the Netherlands law and \"the field of protection covered\" by the Article.", "At the hearings, the Government adopted this opinion and submitted that they were not answerable for the treatment inflicted on Miss Y.", "Having found that Article 8 (art. 8) was violated, the Court does not consider that it has also to examine the case under Article 3, taken alone (art. 3) or in conjunction with Article 14 (art. 14+3).", "IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) AS REGARDS MISS Y", "35. The applicants alleged that they had had no effective remedy in the Netherlands for Miss Y ’ s complaints. On this account they invoked Article 13 (art. 13), which reads:", "\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "They maintained, in particular, that the possibility of appealing, under Article 12 of the Code of Criminal Procedure, to the Arnhem Court of Appeal did not constitute a remedy of this description.", "For the Government, on the other hand, this was a procedure designed to ensure that the criminal law was being correctly applied. The fact that the procedure did not serve the particular purpose did not mean that it did not exist.", "The Commission expressed the opinion that it could not be deduced from Article 13 (art. 13) that there had to be a remedy against legislation as such which was considered not to be in conformity with the Convention.", "36. The Court has already considered, in the context of Article 8 (art. 8), whether an adequate means of obtaining a remedy was available to Miss Y. Its finding that there was no such means was one of the factors which led it to conclude that Article 8 (art. 8) had been violated.", "This being so, the Court does not have to examine the same issue under Article 13 (art. 13).", "V. THE COMPLAINTS OF MR. X", "37. Initially, Mr. X also alleged that the gap in the Netherlands law had violated his own rights under Articles 8 and 13 (art. 8, art. 13) of the Convention.", "The Commission considered that no separate issue arose in this respect.", "Counsel for the applicants did not revert to this aspect of the case at the hearings. The Court therefore sees no necessity to give a decision thereon.", "VI. ARTICLE 50 (art. 50)", "38. Under Article 50 (art. 50) of the Convention,", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "In her letter of 27 August 1984, Ms. van Westerlaak explained that \"approximately seven years after the event, the girl in question is still experiencing daily the consequences of the indecent assault of which she was the victim\" and that \"this is the source of much tension within the family\". Ms. van Westerlaak stated at the hearings that non-pecuniary damage was still being suffered.", "The Commission did not comment on these allegations.", "The Government also did not challenge the allegations as such, but they argued that the suffering was the result of the act committed by Mr. B and not of the violation of the Convention. Accordingly, there was no reason to afford just satisfaction.", "39. The Court notes that the claim is confined to non-pecuniary damage and does not relate to the costs of the proceedings.", "40. No one contests that Miss Y suffered damage. In addition, it is hardly deniable that the Netherlands authorities have a degree of responsibility resulting from the deficiency in the legislation which gave rise to the violation of Article 8 (art. 8).", "The applicants left it to the Court ’ s discretion to determine a standard for compensation.", "The damage in question does not lend itself even to an approximate process of calculation. Assessing it on an equitable basis, as is required by Article 50 (art. 50), the Court considers that Miss Y should be afforded just satisfaction which it fixes at 3,000 Dutch Guilders." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant is a Bulgarian national who was born in 1980.", "10. She alleged that she had been raped by two men on 31 July and 1 August 1995, when she was 14 years and 10 months old. The ensuing investigation came to the conclusion that there was insufficient proof of the applicant having been compelled to have sex.", "A. The events of the night of 31 July to 1 August 1995", "1. The evening of 31 July", "11. On 31 July 1995 the applicant and a friend of hers had been waiting to enter a disco bar in the town of K., when three men, P. (21 years old at the time), A. (20 years old at the time) and V.A. (age not specified), arrived in a car owned by P. The applicant knew P. and A. She had met P. in the same disco bar and had danced with him once. A. was the older brother of a classmate of hers.", "12. A. invited the applicant to go with him and his friends to a disco bar in a small town 17 km away. According to the applicant, she agreed on condition that she would be back home before 11 p.m.", "13. In the bar, one or two of the group had drinks. The applicant saw some friends, with whom she had a short chat. According to the applicant, she repeatedly told the others it was time to leave, as it was getting late.", "14. At some time late in the evening, the group left and headed back to K. On the way, they were briefly stopped and checked by traffic police.", "15. A. then suggested stopping for a swim at a nearby reservoir. According to the applicant, they went there despite her objections. She submitted that she had not suspected the men's intentions.", "2. Events at the reservoir", "16. At the reservoir, the applicant remained in the car, in the front passenger seat, saying that she was not interested in swimming. The three men headed towards the water. Soon afterwards, P. came back and sat in the front seat next to the applicant.", "17. In her statements to the investigating authorities, the applicant submitted that P. had then pressed his body against hers, proposed that they “become friends” and started kissing her. The applicant had refused his advances and had asked him to leave. P. had persisted in kissing her while she had tried to push him back. He had then moved the car seat back to a horizontal position, grabbed her hands and pressed them against her back. The applicant had been scared and at the same time embarrassed by the fact that she had put herself in such a situation. She had not had the strength to resist violently or scream. Her efforts to push P. back had been unsuccessful, as he had been far stronger. P. had undressed her partially and had forced her to have sexual intercourse with him.", "18. In her testimony, the applicant stated: “It was my first time and it hurt a lot. I felt sick and I wanted to throw up. I started crying.”", "19. According to P.'s statements, he had had sex with the applicant in the car with her full consent. He had started kissing her, she had responded, and he had tried unsuccessfully to unbutton her jeans or loosen her belt, whereupon she had done so herself and had taken off her pants.", "20. After P. had finished, he left the car and walked towards A. and V.A. In his submissions to the police, A. said that P. had told them that he had “shagged” the applicant. Shortly afterwards, the three men returned to the car and the group drove off.", "21. In her submissions to the investigator, the applicant stated that she had later come to suspect that the three men had planned to have sex with her and had invented the pretext of swimming to drive to a deserted area. In particular, she did not remember A. and V.A. being wet when they had come back to the car, although they had insisted on going to the reservoir for a swim.", "3. The alleged second rape", "22. The applicant later testified that after the first rape she had been very disturbed and had cried most of the time. According to the version of events given by P. and A. when later questioned, the applicant had been in an excellent mood, had started caressing A., which had irritated P., and had asked to go to a bar or a restaurant. The group had gone to a restaurant, where the applicant had briefly talked with a Ms T., the singer performing there. Ms T. had been sitting at a table there with one Mr M.", "23. Ms T., the singer, stated that on 1 August 1995 she had been in the restaurant with Mr M. Shortly after midnight the applicant, whom she knew vaguely, had approached her and asked whether her group would be performing in the next few days. Ms T. recalled having seen at that moment a man waiting at the door. Having heard the answer to her question, the applicant had left. Ms T. stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour.", "24. Mr M. was also questioned by the police. He stated that he knew the applicant very well and that he did not remember having seen her that night.", "25. The applicant disputed the statements of P., A., V.A. and Ms T., maintaining that there had been no visit to a restaurant and that she did not know Ms T. The applicant and her mother later accused Ms T. of perjury (see paragraphs 66-68 below).", "26. Instead of returning to K., at around 3 a.m. the group went to a neighbouring town, where V.A.'s relatives had a house. A., V.A. and the applicant got out of the car. P., who was the owner of the car, drove off.", "27. The three men and a baker, Mr S., called by them as a witness, later maintained that in the meantime there had been a short stop at Mr S.'s bakery. Mr S. allegedly had the key to the house. Mr S., when interrogated, stated that at about 2 a.m. he had given the key to V.A. and had seen the applicant waiting in the car, apparently in a good mood. Loud music had been coming from the car. The applicant disputed that there had been any visit to a baker's shop and accused the baker of perjury. P., A. and V.A. submitted in their statements that they had decided to go to the house as the applicant had told them that she had quarrelled with her mother and did not want to go back home.", "28. The applicant stated to the police that she had felt helpless and in need of protection. As A. was the brother of a classmate of hers, she had expected such protection from him and had followed him and V.A. into a room on the ground floor of the house.", "29. There was one bed in the room and the applicant sat on it. The two men smoked and talked for a while. V.A. then left the room.", "30. The applicant maintained that at that point A. had sat next to her, pushed her down onto the bed, undressed her and forced her to have sex with him. The applicant had not had the strength to resist violently. She had only begged the man to stop. She later related in her statement:", "“I started crying and asked him to stop ... He started caressing my breasts and sucking my neck ... At some point he took my jeans and my pants off with his feet. Then he spread my legs apart with his legs and forced his way into me ... [After he finished] I started crying and I continued crying until some time in the morning, when I fell asleep ... [V.A.] woke me up telling me that [A.] had gone to find a car to drive me back to K. I sat on the bed and started crying.”", "31. A.'s position before the police was that he had had sex with the applicant with her full consent.", "4. The morning of 1 August 1995", "32. On the following morning at around 7 a.m., the applicant's mother found her daughter in the house of V.A.'s relatives. The applicant's mother stated that, having learned from neighbours that her daughter had been seen the previous evening with A., she had been on her way to A.'s house when she had met V.A. in the street. V.A. had allegedly tried to mislead the applicant's mother in an effort to gain time and warn A. However, she had insisted.", "33. The applicant and her mother maintained in their submissions during the investigation that the applicant had told her mother right away that she had been raped. A. had also been there. He had told the applicant's mother that “a truck driver” had had sex with her daughter the previous night.", "34. According to A.'s version of events, the applicant and her mother had quarrelled, the applicant allegedly refusing to go with her and telling her to go away. A neighbour, apparently named as a witness by A. or V.A., stated that he had heard the quarrel and, in particular, the refusal of the applicant to leave with her mother and her saying that nothing had happened to her. The applicant accused the witness of perjury.", "35. The applicant and her mother went directly to the local hospital, where they were directed to see a forensic medical examiner. The applicant was examined at about 4 p.m.", "36. The medical examiner found that the hymen had been freshly torn. He also noted grazing on the applicant's neck, measuring 35 mm by 4 mm, and four small oval-shaped bruises. As noted in the medical certificate, the applicant had reported only one rape, stating that it had occurred between 10.30 and 11 p.m. the previous day at the reservoir.", "B. Events between 1 and 11 August 1995", "37. The applicant submitted that during the next few days she had refused to talk to her mother about the incident. She had given no details and had not mentioned the second rape at all. She explained that she lived in a conservative small-town environment where virginity was considered to be an asset for marriage. She felt ashamed of the fact that she had “failed to protect her virginity ” and of “ what people would say about it”.", "38. On the first evening after the events, on 1 August 1995, P. visited the applicant's family. The applicant and her mother stated that that evening P. had begged for forgiveness and had claimed that he would marry the applicant when she came of age. The applicant's mother had considered that accepting the offer would be reasonable in the circumstances. This had influenced the initial behaviour of the applicant, who had accepted her mother's idea of minimising the damage.", "39. On one of the following evenings, the applicant went out with P. and some of his friends.", "40. P. and V.A., the latter claiming that he had been with P. during the visit to the applicant's house on the evening of 1 August 1995, stated that the applicant's mother had told them that “all pleasure must be paid for” and had tried to extort money from them.", "41. P.'s grandmother also made a statement to the police. She asserted that on an unspecified date the applicant's mother had visited her, trying to extort money.", "42. With regard to that visit and other relevant events, Mrs D., a neighbour and friend of the applicant's mother, stated that the applicant's mother had been very upset about the events and had agreed to her daughter going out with P. as he had maintained that he loved the applicant. The applicant's mother had nevertheless decided to talk to P.'s parents. On an unspecified date Mrs D. and another neighbour had approached the house of P.'s family, but his grandmother had told them to go away, stating that the applicant had slept not only with P. but also with A. At that moment A. had arrived. Mrs D. had asked him whether it was true that he had slept with the applicant. He had confirmed that it was true, adding that he had the money and power to do as he pleased. Until then, the applicant's mother had not known about the second rape.", "43. The applicant submitted that a visit by A.'s father on 8 August 1995 had caused her to break down. She had then confided to her mother about the second rape. On 10 August 1995 the applicant's father returned home, after being absent for several days. The family discussed the matter and decided to file a complaint. The applicant's mother did so on 11 August 1995.", "C. The investigation", "1. The initial police inquiry", "44. On 11 August 1995 the applicant made a written statement about the events of 31 July and 1 August. On the same day P. and A. were arrested and made written statements. They claimed that the applicant had had sexual intercourse with them of her own free will. The two men were released. Written statements were also made by V.A. and a person who lived next to the house where the second alleged rape had taken place. On 25 August 1995 a police officer drew up a report and forwarded the file to the competent prosecutor.", "45. On 14 November 1995 the district prosecutor opened a criminal investigation into the alleged rape and referred the case to an investigator. No charges were brought.", "46. No action was taken on the case between November 1995 and November 1996.", "2. The proceedings in relation to the complaints by P. and A. alleging perjury", "47. On 24 August 1995 P. and A. filed complaints with the district prosecutor's office, stating that the applicant and her mother had been harassing them by making false public accusations.", "48. On the basis of these complaints, on 28 August 1995, the district prosecutor ordered a police inquiry. In September and October 1995 several persons were heard and made written statements.", "49. On 25 October 1995 a police officer drew up a report apparently accrediting the allegations of P. and A. and disbelieving the version of the facts as submitted by the applicant and her mother.", "50. On 27 October 1995 the file was transmitted to the district prosecutor's office with jurisdiction to decide whether or not to institute criminal proceedings against the applicant and her mother. It appears that the matter was left hanging and no decision was taken.", "3. The resumed investigation into the rape case", "51. Between 2 November and 9 December 1996 the investigator questioned the applicant, her mother and other witnesses. P. and A. were heard as witnesses.", "52. The applicant gave a detailed account of the facts, repeating that P. had overcome her resistance by pressing her against the car seat and twisting her hands, and that thereafter she had been in a state of shock and unable to resist A.", "53. In his evidence, P. claimed that the applicant had actively responded to his advances. He also asserted that the applicant had spoken with Mr M. at the restaurant they had allegedly gone to after having sex.", "54. Both A. and P. stated, inter alia, that shortly after having sex with P. at the reservoir, the applicant had started caressing A. in the car.", "55. On 18 December 1996 the investigator completed his work on the case. He drew up a report stating that there was no evidence that P. and A. had used threats or violence, and proposed that the prosecutor close the case.", "56. On 7 January 1997 the district prosecutor ordered an additional investigation. The order stated that the initial investigation had not been objective, thorough or complete.", "57. On 16 January 1997 the investigator to whom the case had been referred appointed a psychiatrist and a psychologist to answer several questions. The experts were asked, inter alia, whether it was likely that the applicant would have spoken calmly with Ms T., the singer at the restaurant, and then listened to music in the car, if she had just been raped and whether it was likely that several days after the alleged rape the applicant would have gone out with the person who had raped her.", "58. The experts considered that, owing to her naivety and inexperience, the applicant had apparently not considered the possibility that she might be sexually assaulted. There was no indication that she had been threatened or hurt, or that she had been in a state of shock during the events, as she had demonstrated a clear recollection of them. The experts considered that during the events she must have been suddenly overwhelmed by an internal conflict between a natural sexual interest and a sense that the act was reprehensible, which had “reduced her ability to resist and defend herself”. They further found that the applicant was psychologically sound and that she had understood the meaning of the events. In view of her age at the time, however, she “could not assert a stable set of convictions”.", "59. The experts also found that, if there had indeed been a meeting between Ms T. and the applicant after the events at the reservoir – and this was disputed – it was still possible that the applicant could have had a short exchange with Ms T. after being raped. As to the applicant going out with P. several days after the events, this could be easily explained by her family's desire to lend a socially acceptable meaning to the incident.", "60. On 28 February 1997 the investigator concluded his work on the case and drew up a report, again proposing that the case should be closed. He considered that the experts'opinion did not affect his earlier finding that there was no evidence demonstrating the use of force or threats.", "61. On 17 March 1997 the district prosecutor ordered the closure of the criminal investigation. He found, inter alia, that the use of force or threats had not been established beyond reasonable doubt. In particular, no resistance on the applicant's part or attempts to seek help from others had been established.", "62. The applicant lodged consecutive appeals with the regional prosecutor's office and the Chief Public Prosecutor's Office. The appeals were dismissed in decisions of 13 May and 24 June 1997 respectively.", "63. The prosecutors relied, inter alia, on the statements of the alleged perpetrators and V.A. that the applicant had not shown any signs of distress after having sex with P. at the reservoir, and the evidence of the three men and Ms T. that the latter had met the applicant and had spoken with her that night. As regards the applicant's objections that those statements should be rejected as being untrue, the decision of 13 May 1997 stated that “prosecutors'decisions cannot be based on suppositions, and witnesses'statements cannot be rejected only on the basis of doubts, without other evidence ...”.", "64. The decision of 13 May 1997 also stated:", "“It is true that, as can be seen from the report of the forensic psychiatric experts, the young age of the applicant and her lack of experience in life meant that she was unable to assert a stable set of convictions, namely to demonstrate firmly her unwillingness to engage in sexual contact. There can be no criminal act under Article 152 §§ 1 (2) and 3 of the Criminal Code, however, unless the applicant was coerced into having sexual intercourse by means of physical force or threats. This presupposes resistance, but there is no evidence of resistance in this particular case. P. and A. could be held criminally responsible only if they understood that they were having sexual intercourse without the applicant's consent and if they used force or made threats precisely with the aim of having sexual intercourse against the applicant's will. There is insufficient evidence to establish that the applicant demonstrated unwillingness to have sexual intercourse and that P. and A. used threats or force.”", "It was further noted that the applicant had explained that the bruises on her neck had been caused by sucking.", "65. The decision of 24 June 1997 reiterated those findings, while noting that the statements of Ms T., the singer at the restaurant, were not decisive. It also stated:", "“What is decisive in the present case is that it has not been established beyond reasonable doubt that physical or psychological force was used against the applicant and that sexual intercourse took place against her will and despite her resistance. There are no traces of physical force such as bruises, torn clothing, etc. ...", "It is true that it is unusual for a girl who is under age and a virgin to have sexual intercourse twice within a short space of time with two different people, but this fact alone is not sufficient to establish that a criminal act took place, in the absence of other evidence and in view of the impossibility of collecting further evidence.”", "4. Other proceedings", "66. In June or July 1997 the applicant and her mother requested the institution of criminal proceedings against Ms T. and other witnesses, including V.A., alleging that they had committed perjury in that their statements in connection with the investigation into the rape of the applicant had been false.", "67. On 14 July 1997 the same prosecutor from the district prosecutor's office who had ordered the closure of the rape investigation refused the request, stating that it was unfounded and even abusive, as all the facts had been clarified in previous proceedings.", "68. An ensuing appeal by the applicant was dismissed on 6 February 1998 by the regional prosecutor's office.", "D. The expert opinion submitted by the applicant", "69. In June 2001 the applicant submitted a written opinion by two Bulgarian experts, Dr Svetlozar Vasilev, a psychiatrist, and Mr Valeri Ivanov, a psychologist, who had been asked by the applicant's lawyer to comment on the case.", "70. The experts stated, with reference to scientific publications in several countries, that two patterns of response by rape victims to their attacker were known: violent physical resistance and “frozen fright” (also known as “ traumatic psychological infantilism syndrome ” ). The latter was explained by the fact that any experience-based model of behaviour was inadequate when the victim was faced with the inevitability of rape. As a result the victim, terrorised, often adopted a passive- response model of submission, characteristic of childhood, or sought a psychological dissociation from the event, as if it were not happening to her.", "71. The experts stated that all the scientific publications they had studied indicated that the “frozen-fright pattern” prevailed. Further, they had conducted their own research for the purposes of their written opinion in the present case. They had analysed all the cases of young women aged 14 to 20 who had contacted two specialised treatment programmes for victims of violence in Bulgaria during the period from 1996 to 2001, declaring that they had been raped. Cases that were too different from that of the applicant had been excluded. As a result, twenty-five cases had been identified, in twenty-four of which the victim had not resisted violently, but had reacted with passive submission." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "72. By Article 151 § 1 of the Criminal Code, sexual intercourse with a person under 14 years of age is a punishable offence (statutory rape). Consent is not a valid defence in such cases.", "73. Consent is likewise irrelevant where the victim is more than 14 years old, but did not “understand the essence and meaning of the occurrence” (Article 151 § 2 of the Code). That provision has been applied in cases where the victim did not grasp the meaning of the events owing to a mental disorder (see judgment no. 568 of 18 August 1973, case no. 540/73, Supreme Court -I).", "74. Article 152 § 1 of the Criminal Code defines rape as :", "“sexual intercourse with a woman", "(1) incapable of defending herself, where she did not consent;", "(2) who was compelled by the use of force or threats;", "(3) who was brought to a state of helplessness by the perpetrator.”", "75. Although lack of consent is mentioned explicitly only in the first sub-paragraph, the Supreme Court has held that it is an element inherent in the whole provision ( see judgment no. 568, cited above).", "76. According to judicial practice, the three sub - paragraphs of Article 152 § 1 can only be applied alternatively, each of them referring to a separate factual situation. The Supreme Court has held that general references to two or all of the sub-paragraphs are not acceptable (see judgment no. 247 of 24 April 1974, case no. 201/74, Supreme Court-I; judgment no. 59 of 19 May 1992, case no. 288/90, Supreme Court-I; and many others).", "77. Therefore, an accused person may be found guilty of rape only if it has been established that he had sexual intercourse with a woman in circumstances covered by one of the three sub-paragraphs.", "78. The first and third sub-paragraphs concern particular factual situations where the victim was in a state of helplessness at the time of sexual intercourse. The third sub-paragraph refers to cases where the perpetrator put the victim in a state of helplessness before raping her, whereas the first sub-paragraph refers to cases where he took advantage of the victim's existing state of helplessness.", "79. The courts have stated that a victim is in a state of helplessness (“incapable of defending herself” or “brought to a state of helplessness ”) only in circumstances where she has no capacity to resist physically owing to disability, old age or illness (see judgment no. 484 of 29 July 1983, case no. 490/83, and judgment no. 568, cited above) or because of the use of alcohol, medicines or drugs (see judgment no. 126 of 11 April 1977, case no. 69/77, Supreme Court-II).", "80. The second sub-paragraph is the provision applicable in all other cases of alleged rape. Thus, where no special circumstances such as the state of helplessness of the victim are reported, an investigation into an alleged rape will concentrate on establishing whether or not the victim was coerced into having sexual intercourse by the use of force or threats.", "81. It is an established view in the case-law and legal theory that rape under the second sub-paragraph of Article 152 § 1 of the Criminal Code is a “two ‑ step” offence – that is to say, the perpetrator first starts employing force or threats and then penetrates the victim.", "82. The parties in the present case offered their views on the meaning of the words “use of force and threats” and their interpretation in practice (see paragraphs 113, 122 and 123 below).", "83. The Supreme Court has stated that lack of consent is to be deduced from the fact that a situation covered by one of the three sub-paragraphs of Article 152 § 1 has been established, either from the victim's state of helplessness or from the fact that physical or psychological force has been used (see judgment no. 568, cited above).", "84. In one case, the Supreme Court stated that “force” was not only to be understood as direct violence, but could also consist of placing the victim in a situation such that she could see no other solution than to submit against her will (see judgment no. 520 of 19 July 1973, case no. 414/73). In that particular case, the perpetrator, after demonstrating his desire for close relations with the victim by his behaviour over a period of two or three days (following her and trying to hold her and kiss her), entered her room, locked the door and asked her to undress. She refused, whereupon he tried to spread her legs apart. Realising that she had no other choice, the victim opened the window and jumped, sustaining serious injury. The perpetrator was convicted of attempted rape resulting in serious injury.", "85. Legal commentators have not commented in detail on situations where coercion through force or threats may be considered to have been established, apparently taking the view that this was a matter for judicial interpretation (Al. Stoynov, Наказателно право, Особена част, 1997; A. Girginov, Наказателно право, Особена част, 2002). One commentator has stated that the essential characteristic of rape is the victim's lack of consent and that the three sub-paragraphs of Article 152 § 1 of the Criminal Code embody different situations of lack of consent. He further notes that in previous centuries the utmost resistance by the victim was required and that that view is now outdated. Without reference to case ‑ law, he considers that what is now required is nothing more than the resistance necessary to eliminate any doubt as to the victim's lack of consent (N. Antov, Проблеми на изнасилването, 2003).", "86. Under Article 152 § 1 of the Criminal Code, rape committed by a man against a woman is punishable by two to eight years'imprisonment. At the material time, Article 157 § 1 of the Code provided for one to five years'imprisonment in cases of forced sexual intercourse with a person of the same sex. In 2002 the punishment prescribed under the latter provision was brought into line with that applicable in cases of rape under Article 152 § 1, and is now two to eight years'imprisonment.", "87. At the material time, the age of consent in respect of sexual intercourse with a person of the same sex was 16 years (Article 157 § 2 of the Code). In 2002 it was lowered to 14 years.", "III. RELEVANT COMPARATIVE AND INTERNATIONAL LAW AND PRACTICE", "A. Provisions on rape in the domestic law of some European countries", "88. In the legal systems of a number of European States, rape and sexual assault are “gender-neutral” offences, whereas in other countries rape may only be committed by a man against a woman.", "89. The minimum age of consent for sexual activity in most States is 14, 15 or 16 years. In some countries, there is a different age of consent for sexual acts without penetration and for sexual acts with penetration, or different penalties depending on the age of the victim. The approaches vary significantly from one country to another.", "90. Article 375 §§ 1 and 2 of the Belgian Criminal Code (referred to by Interights), as amended in 1989, read:", "“Any act of sexual penetration, of whatever nature and by whatever means, committed on a person who does not consent to it shall constitute the crime of rape.", "In particular, there is no consent where the act is forced by means of violence, coercion or ruse or was made possible by the victim's disability or physical or mental deficiency.”", "91. Article 241 § 1 of the Czech Criminal Code ( Law no. 140/1961, as amended) provides:", "“A person who coerces another into an act of sexual penetration or a similar sexual act through violence or the threat of imminent violence or by taking advantage of the person's helplessness shall be liable to imprisonment for a term of two to eight years.”", "92. Sections 216 ( 1 ) and 217 of the Danish Penal Code (referred to by the intervener) provide:", "“Any person who coerces [another into having] sexual intercourse by violence or under threat of violence shall be guilty of rape and liable to imprisonment for a term not exceeding eight years. The placing of a person in such a position that the person is unable to resist shall be equivalent to violence ... ”", "“ Any person who by means of unlawful coercion (according to section 260 of this Act) other than violence or the threat of violence procures sexual intercourse for himself, shall be liable to imprisonment for a term not exceeding four years.”", "93. Chapter 20, sections 1 and 3, of the Finnish Penal Code (as amended in 1998) provides:", "“Section 1: Rape", "(1) A person who coerces another into having sexual intercourse by the use or threat of violence shall be sentenced for rape to imprisonment for at least one year and at most six years.", "(2) A person shall also be guilty of rape if he/she takes advantage of the incapacity of another to defend himself/herself and has sexual intercourse with him/her, after rendering him/her unconscious or causing him/her to be in a state of incapacity owing to fear or another similar reason ...", "Section 3: Coercion into having sexual intercourse", "(1) If the rape, in view of the low level of violence or threat and the other particulars of the offence, is deemed to have been committed under mitigating circumstances, the offender shall be sentenced for coercion into having sexual intercourse to imprisonment for at most three years.", "(2) A person who coerces another into having sexual intercourse by a threat other than that referred to in section 1(1) shall be guilty of coercion into having sexual intercourse.”", "94. Articles 222-22, 222-23 and 227-25 of the French Criminal Code provide:", "“Sexual aggression is any sexual assault committed by violence, coercion, threats or surprise.”", "“Any act of sexual penetration, whatever its nature, committed against another person by violence, coercion, threats or surprise, shall be considered rape. Rape shall be punishable by fifteen years'imprisonment.”", "“A sexual offence committed without violence, coercion, threats or surprise by an adult on the person of a minor under 15 years of age shall be punished by five years'imprisonment and a fine of 75,000 euros .”", "95. The following information about French case-law on rape may be gathered from the authoritative publication Juris-Classeur (2002):", "(i) The words “violence, coercion, threats or surprise” are given a broad meaning in practice. For example, in one case it was stated that the fact that the victim was begging the perpetrator to stop, without further resistance, where she had previously agreed to enter his car and to be kissed by him, was sufficient to establish that there was rape ( judgment of the Court of Cassation, Criminal Division (“ Cass. crim. ”), 10 July 1973, Bulletin Criminel (“ Bull. crim. ”) no. 322; Revue de Science Criminelle, 1974, p. 594, observations of Levasseur; see also, for an opposing view, Crim. , 11 October 1978, Dalloz 1979. IR, 120). The victim's refusal may be inferred from the circumstances, such as paralysing shock, as a result of which the victim could not protest or escape ( Cass. crim ., 13 March 1984, Bull. crim. no. 107).", "(ii) There is “surprise” where the victim cannot freely consent because, for example, she is physically or mentally disabled ( Cass. crim ., 8 June 1984, Bull. crim. no. 226), in a particular psychological state, involving depression, fragility, or simply distress ( Cass. crim ., 12 November 1997, Juris-Data no. 2000-005087; Paris Court of Appeal, 30 March 2000, Juris-Data no. 2000-117239), or where the perpetrator used trickery to deceive the victim as to the real situation ( Cass. crim ., 14 April 1995, Juris-Data no. 1995-002034).", "(iii) The courts have considered that there is always “surprise”, and therefore rape, where the victim is of such a low age as not to understand the concept of sexuality and the nature of the acts being imposed ( Cass. crim., 11 June 1992, Bull. crim. no. 228; Limoges Court of Appeal, 5 April 1995, Juris-Data no. 1995-042693; Paris Court of Appeal, 14 November 2000, Juris-Data no. 2000-134658). In some other cases, however, it has been stated that in principle the age of the victim cannot as such, without additional elements, establish the existence of “surprise” ( Cass. crim ., 1 March 1995, Bull. crim. no. 92).", "96. The relevant part of Article 177 (Sexual coercion; Rape) of the German Criminal Code reads :", "“1. Anyone who coerces another person", "( 1 ) by force,", "( 2 ) by the threat of immediate danger to life or limb, or", "( 3 ) by exploiting a situation in which the victim is defenceless and at the mercy of the actions of the perpetrator", "into submitting to sexual acts performed by the perpetrator or by a third person or into performing such acts on the perpetrator or on the third person, shall be punished by imprisonment for not less than one year.”", "97. Article 197 § 1 of the Hungarian Criminal Code (Law no. 4 of 1978) provides:", "“A person who by violent action or a direct threat to life or limb forces a person to have sexual intercourse, or uses a person's incapacity to defend himself/herself or to express his/her will to have sexual intercourse shall be guilty of a serious offence punishable by imprisonment for two to eight years.”", "98. In Ireland, section 2(1) of the Criminal Law (Rape) Act 1981 and section 9 of the Criminal Law (Rape) (Amendment) Act 1990 (referred to by the intervener) provide:", "“A man commits rape if (a) he has sexual intercourse with a woman who at the time of intercourse does not consent and (b) at the time he knows she does not consent or is reckless as to whether or not she is consenting.”", "“It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of the person, any failure or omission by that person to offer resistance to the act does not of itself constitute consent to that act.”", "99. Article 180 § 1 of the Slovenian Criminal Code reads:", "“Anyone who compels a person of the same or the opposite sex to submit to sexual intercourse by force or the threat of imminent attack on life and limb shall be sentenced to imprisonment from one to ten years.”", "100. In the United Kingdom, section 1(1) of the Sexual Offences (Amendment) Act 1976 (referred to by the intervener) provides:", "“[A] man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or is reckless as to whether she consents to it.”", "B. Recommendation Rec (2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence", "101. The Committee of Ministers recommends that member States adopt and implement, in the manner most appropriate to each country's national circumstances, a series of measures to combat violence against women. Paragraph 35 of the appendix to the recommendation states that, in the field of criminal law, member States should, inter alia :", "“ – penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance;", "...", "– penalise any abuse of the position of a perpetrator, and in particular of an adult vis ‑ à-vis a child.”", "C. The International Criminal Tribunal for the former Yugoslavia", "102. In Prosecutor v. Anto Furundžija ( case no. IT-95-17/1-T, judgment of 10 December 1998 ), in the context of the question whether or not forced oral sexual penetration may be characterised as rape under international law, the Trial Chamber made the following relevant remarks about rape under international criminal law:", "“The Trial Chamber notes the unchallenged submission ... that rape is a forcible act: this means that the act is'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'. ...", "... all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim: force is given a broad interpretation and includes rendering the victim helpless.”", "103. The Trial Chamber defined rape as :", "“sexual penetration ... by coercion or force or threat of force against the victim or a third person.”", "104. Noting that the terms “coercion ”, “ force ”, or “ threat of force” from the Furundžija definition were not intended to be interpreted narrowly, the Trial Chamber in another case ( Prosecutor v. Kunarac, Kovač and Vuković, case no. IT-96-23, judgment of 22 February 2001 ) observed :", "“In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundžija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim, which ... as discussed below, is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition in international law.", "... the basic underlying principle common to [the national legal systems surveyed is ] that sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim ... [F]orce, threat of force or coercion ... are certainly the relevant considerations in many legal systems but the full range of [the relevant] provisions ... suggest that the true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy. ”", "105. In Kunarac, Kovač and Vuković, a Muslim girl in an occupied area was taken by armed soldiers to a building which served as military headquarters. After being raped by two soldiers there, she was brought to a room where she herself initiated sexual contact with the accused Mr Kunarac, the commanding officer. The Trial Chamber noted that the victim had been told by soldiers that she should satisfy their commander sexually or risk her life. The victim therefore “did not freely consent to any sexual intercourse with Kunarac [as she] was in captivity and in fear for her life”. The Trial Chamber also rejected Kunarac's defence that he was not aware of the fact that the victim had only initiated sexual intercourse with him because she feared for her life. The Chamber found that, even if Kunarac had not heard the threats made by other soldiers, he could not have been “confused” by the behaviour of the victim, given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls in the region.", "106. In the context of the above facts, the Trial Chamber made the following observations on the elements of rape under international law:", "“The basic principle which is truly common to [the reviewed] legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant.", "In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist. A clear demonstration that such factors negate true consent is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where factors such as use of force, the unconsciousness or inability to resist of the victim, or misrepresentation by the perpetrator [are present].", "... coercion, force, or threat of force [are] not to be interpreted narrowly ... coercion in particular would encompass most conduct which negates consent ...", "In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [it] occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”", "107. In the same case, on an appeal by the perpetrators based on the argument, inter alia, that there was no rape without force or threat of force and the victim's “continuous” or “genuine” resistance, the Appeals Chamber, in its judgment of 12 June 2002, stated:", "“The Appellants'bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts.", "Secondly, with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunal's prior definitions of rape. However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal's earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape. In particular, the Trial Chamber wished to explain that there are “factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”. A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force ...", "For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers'residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. ( Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”", "D. The United Nations Committee on the Elimination of Discrimination against Women", "108. In its General Recommendation 19 of 29 January 1992 on violence against women, the Committee made the following recommendation in paragraph 24:", "“(a) States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act;", "(b) States parties should ensure that laws against ... abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. ...”", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 3, 8 AND 13 OF THE CONVENTION", "109. The applicant complained that Bulgarian law and practice did not provide effective protection against rape and sexual abuse, as only cases where the victim had resisted actively were prosecuted, and that the authorities had not investigated the events of 31 July and 1 August 1995 effectively. In her view, the above amounted to a violation of the State's positive obligations to protect the individual's physical integrity and private life and to provide effective remedies in this respect.", "110. The relevant Convention provisions read:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 § 1", "“Everyone has the right to respect for his private ... life ...”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties'submissions", "1. The applicant", "111. The applicant considered that domestic law and practice in rape cases should determine the existence, or lack, of consent to sexual intercourse on the basis of all relevant factors. In her view, a legal framework and practice that required proof of physical resistance by the victim, and thus left unpunished certain acts of rape, were inadequate.", "112. The applicant relied on the written expert opinion she submitted (emphasising that the majority of children or other young rape victims displayed passive psychological reactions of panic – see paragraphs 69-71 above) and also on developments in international and comparative law as to the elements of the crime of rape.", "113. The applicant then offered her analysis of Bulgarian law and practice concerning rape and sexual abuse. She made the following submissions:", "(i) According to the practice of the Bulgarian investigating and prosecuting authorities, the prosecution of rape was only possible if there was evidence of the use of physical force and evidence of physical resistance. Lack of such evidence would lead to the conclusion that sexual intercourse had been consensual.", "(ii) It was not possible to support the above assertion directly with a case study since investigators'and prosecutors'decisions were not publicly available; they could only be found in the relevant case files and there was no system of sorting, reporting or analysis that could serve as the basis of a study. Also, the impugned practice was not based on written instructions but on institutional tradition and culture.", "(iii) Because of the existing policy of the prosecuting authorities not to bring charges unless there was evidence of physical force and resistance, the issue had not been addressed directly by the courts.", "(iv) Nevertheless, an overview of the reported judgments of the Supreme Court and the Supreme Court of Cassation (judgments of lower courts were not reported) provided indirect evidence about the type of cases that were likely to be brought to court by the prosecuting authorities. The applicant had searched all reported judgments in rape cases and produced copies of twenty-one judgments considered relevant by her counsel.", "(v) Almost all reported cases concerned rape accompanied by substantial use of physical force and/or threats. Those cases typically involved the following acts of violence: dragging the victim from a car to a house and locking her up; tearing clothes and hitting the victim; punching the victim on the head and kicking her; suffocating the victim; causing concussion and fracture of the nose; or beating causing substantial bleeding. In several cases the victim had been threatened with violence or other consequences. In three cases the victim had committed or attempted to commit suicide as a result.", "(vi) The research had produced only two cases in which a more context ‑ sensitive approach could be noted. In one case a teacher, having attempted flirting, forced his student to have sex with him repeatedly over a certain period of time by threatening her with negative consequences at school and with violence. The Supreme Court found that there had been repeated acts of rape committed through the use of threats and acknowledged that the victim had gradually been put into a state of a psychological dependence. In another case, a 14-year-old girl who suffered from epilepsy and was mentally retarded had been raped by an acquaintance of the family; the courts noted that the girl had offered weak resistance (she had tried to get up after being pushed down on the floor by the perpetrator) but concluded that that “level of resistance”, seen in the context of the girl's age and health, had been “sufficient to demonstrate her unwillingness to have sex”.", "114. The applicant submitted a copy of a letter by a Bulgarian psychotherapist working with victims of sexual violence, who stated that in her experience the prosecuting authorities brought charges only in cases where the attacker was a stranger to the victim, where there were serious injuries or where there were witnesses. In the applicant's view, that confirmed her allegation that the predominant tendency in practice was to infer consent from insufficient proof of physical resistance.", "115. She further stated that, by setting at 14 the age of consent for sexual intercourse and at the same time limiting the prosecution of rape to cases of violent resistance by the victim, the authorities had left children insufficiently protected against rape.", "116. The applicant submitted that, in her case, the prosecutors had put undue emphasis on the absence of physical violence and had not taken into account the fact that, at the age of 14, she had never taken important decisions herself, particularly under the pressure of time. The prosecutors had failed to have regard to the unlikelihood of a 14-year-old girl who had never had sexual intercourse consenting to sex with two men in a row.", "117. Furthermore, the investigation had not been thorough and complete. The crucial issue of the timing of all the moves of the three men and the applicant during the night in question – which could have shown that there had been no visit to a restaurant after the rape at the reservoir – had not been investigated. Contradictions in the evidence had been disregarded. The police patrol who had stopped the group on their way to the reservoir had not been identified. The investigator had accredited the testimony of the alleged perpetrators and of witnesses called by them and had at the same time disbelieved or ignored the testimony of other witnesses and the applicant's account of the events.", "118. In the applicant's view, seen in the context of all the relevant facts, her clear and consistent testimony that she had begged P. to stop and had pushed him away until he had twisted her arms, and her account of the distress she had felt and of her resistance – reasonable in the circumstances – should have led to the conviction of the perpetrators if a correct interpretation of “rape”, consonant with the State's positive obligations under Articles 3, 8 and 13 of the Convention, had been applied.", "2. The Government", "119. The Government submitted that the investigation had been thorough and effective. All possible steps had been taken: seventeen persons had been questioned, some of them repeatedly, experts in psychiatry and psychology had been appointed and all aspects of the case had been explored. The Government therefore considered that the conclusion of the national authorities that P. and A. must have acted on the assumption of the applicant's consent had been well-founded. In particular, the authorities had relied on all evidence about the events of 31 July to 1 August 1995, including information about the behaviour of the applicant. Furthermore, the applicant had gone out with P. after the events and there had been allegations by witnesses that her mother had attempted to extort money from P. and A. in return for dropping the rape allegations.", "120. In the Government's submission, the facts of the case did not, therefore, concern the issue of protecting a person's integrity or ill ‑ treatment. As a result, no positive obligations arose under Articles 3 or 8 of the Convention.", "121. The Government maintained that, in any event, Bulgarian law and practice in rape cases and their application in the present case did not violate any positive obligation that could arise under the Convention.", "122. Describing the domestic law and practice in their initial submissions at the admissibility stage, the Government stated that proof of physical resistance was required in cases of rape and that, moreover, in accordance with “international practice, including in France” rape was only possible between strangers, whereas the applicant knew the alleged perpetrators.", "123. In their submissions on the merits, the Government corrected their earlier statements and submitted that lack of consent was an essential element of rape under Bulgarian law. Proof of lack of consent was derived from evidence demonstrating that the victim was in a state of helplessness or had been put in such a state by the perpetrator, or from evidence of physical or psychological violence by the perpetrator. The Government submitted copies of several relevant judgments of the Supreme Court. They did not dispute the reliability of the analysis of Bulgarian case-law offered by the applicant.", "124. In the applicant's case – the Government argued – after a careful and impartial investigation, the authorities had not found it established, to the level of proof necessary to secure a criminal conviction, that rape had been committed. On the other hand, it was open to the applicant to submit a civil action for damages against the alleged perpetrators. She would be required to prove the unlawfulness of the perpetrators'acts, but no proof of mens rea would be necessary.", "125. Finally, the Government submitted that the applicant had had effective criminal and civil remedies at her disposal, as required by Article 13 of the Convention.", "3. Submissions by Interights", "(a) General submissions", "126. The intervener stated that over the past two decades the traditional definition of rape had undergone reform in civil and common law jurisdictions and in international law. This was the result of the evolving understanding of the nature of the offence and the manner in which it was experienced by the victim. Research had demonstrated that women, and more particularly minors, often did not physically resist rape either because they were physically unable to do so through paralysing fear, or because they were seeking to protect themselves against the increasing level of force being used against them.", "127. Interights submitted that the reform of rape law reflected a shift from a “historical approach” to the “equality approach” to the question of consent. Rape was an offence against women's autonomy and its essential element was lack of consent. A central concern underlying reforms in rape law had been to clarify that it was not necessary to establish that the accused had overcome the victim's physical resistance in order to prove lack of consent.", "128. That tendency had been reflected in developments in international criminal law. In particular, the International Criminal Tribunals for Rwanda and the former Yugoslavia had characterised as rape sexual penetration “in circumstances which are coercive” or committed through “coercion or force or threat of force”. That approach had also been taken in the Statute of the International Criminal Court and its draft Rules.", "(b) Submissions on the law of several countries", "129. Interights submitted copies of reports on the relevant law of several European and non-European countries, prepared by legal scholars or professionals, or by research assistants. The information and assessments contained therein may be summarised as follows.", "(i) Belgium", "130. The list in Article 375 of the Belgian Criminal Code, amended in 1989, of situations where there is no consent was meant to preserve the case-law dating from before 1989. The list of situations is not considered to be exhaustive, although one commentator is of the opposite opinion.", "131. Historically, what was required to prove rape was proof of sufficiently serious and physically violent acts to break, paralyse or destroy the resistance of the victim. The 1989 amendments replaced the notion of “serious threats” (present in the Criminal Code since 1867) with the broader notion of “coercion” which includes not only fear for one's physical integrity but also any other general fear.", "132. Nowadays, the prosecution is required to prove sexual penetration and lack of consent. Any elements that might show lack of consent will be taken into account, but the prosecution will mostly try to prove the existence of at least one of the factors “nullifying consent”, set out in the second paragraph of Article 375, namely violence, coercion, ruse or disability.", "133. Lack of consent is proved where there is proof of physical resistance. However, even if there is no proof of physical violence or physical resistance, proof of coercion is sufficient. Whether or not there was coercion is a question to be assessed with reference to the capacities of the victim (age, actual state at the time of the facts).", "134. There is a different age of consent for sexual acts of any kind (statutory indecent assault) on the one hand, and for acts involving sexual penetration (statutory rape) on the other. The age of consent for sexual penetration is 14 years and the age of consent for sexual acts of any kind is 16 years. As a result, sexual intercourse with a person aged 14 to 16, in the absence of proof of lack of consent, would be punished as statutory indecent assault. In practice, where the victim is between 14 and 16 years, charges of statutory indecent assault are more frequent than charges of rape.", "(ii) Denmark", "135. Coercion is nowadays understood broadly and is not limited to threats of serious violence.", "136. Evidence of lack of consent is particularly important in cases where the accused and the victim knew each other. While the act of saying “no” would be a sufficient expression of lack of consent, proving that it was said and understood as being meant seriously could be difficult.", "137. In a case from 1982, a man accused of raping a 16-year-old girl was acquitted on the ground that he had not understood that the intercourse had been involuntary. The accused had taken the girl for a ride in his van. According to him, the girl had wished to be taken to her home. According to the girl, she had felt compelled to accept the offer to be taken home because of the situation, particularly once the accused had put his bicycle in his car. On the way, the accused had talked about his sexual problems and needs. The accused had regarded the fact that the girl had let him discuss these subjects as an acceptance that the situation was developing towards intimate contact. The victim had been afraid that the accused would turn violent if she did not let him talk. At one point, the accused had stopped the car and asked the victim to get into the luggage compartment, where sexual intercourse had taken place. The accused had asked the girl several times whether she agreed or not. The victim stated that she had had a mental block and had been afraid. The city court had convicted the accused, finding that the girl had not consented and that the accused had acted with intent, as he would only have had reason to put questions to the victim if he had doubted that she agreed to sexual intercourse. The court of appeal, however, found that the statement of the accused that he had perceived the victim's passivity as acceptance could not be disregarded and acquitted him.", "(iii) Ireland", "138. The principle that the prosecution must prove lack of consent, and not the presence of force, is well established. Absence of consent is a matter of fact for the jury to decide, having regard to all relevant circumstances and following the judge's directions. As regards the mens rea of rape, a defence of “genuine belief” is open to the accused, so that he is entitled to acquittal if it genuinely did not occur to him that the victim might not be consenting.", "(iv) The United Kingdom", "139. Before 1976 the common-law definition of rape was unlawful sexual intercourse with a woman without her consent, by force, fear or fraud. Historically, injury to the body was required as proof of force and as proof of resistance.", "140. Under current law, after 1976, the prosecution must prove that the victim did not consent. Absence of consent is the key element of the actus reus. The burden is on the prosecution. There is no statutory definition of consent or lack of it. “Does not consent” is a question of fact for the jury, which it decides after hearing the judge's directions. In the leading case of Olugboja [1982] Queen's Bench 320, [1981] 3 All England Law Reports 443, two teenage girls had been given a lift home by the accused and his friend. Instead of taking the girls home, the two men took them to another house where the accused person's friend raped one of the girls, who was 16 years old. The accused then also had intercourse with her. He told her to take off her trousers. She did so because she was frightened and the room was dark. She told him “why can't you leave me alone”. He pushed her onto a sofa and had intercourse with her. She did not cry out or struggle. He was convicted of rape. Lord Justice Dunn said:", "“[The jury] should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent ... [The jury] should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind.”", "141. According to some legal commentators, despite Olugboja, the reality is that prosecution is unlikely to proceed where women have submitted in circumstances of similar psychological duress and entrapment to those in Olugboja, but in the absence of threats.", "142. The prosecution must also prove the mens rea of rape, which is either knowledge that the victim does not consent or recklessness as to whether she consents or not. The perpetrator is reckless where he “never gave it a thought”, or was aware that the other person “might not be consenting but goes on just the same” ( R. v. Gardiner [1994] Criminal Law Reports 455).", "(v) The United States of America", "143. The fifty States define what is commonly referred to as “rape” in a number of different ways but, despite significant variations in wording, the States converge on the question of non-consent. In particular, it is an established principle that a victim is not required physically to resist her attacker to prove that she did not consent to the act. Verbal expressions of dissent suffice. In Commonwealth v. Berkowitz (641 A.2d 1161 ( Pennsylvania, 1994)), the defendant had sexual intercourse with an acquaintance in his college dormitory room although she said “no” throughout the experience. The Pennsylvania courts held that the victim's repeated expressions of “no” were sufficient to prove her non-consent.", "144. In thirty-seven States, non-consensual intercourse without extrinsic force (force extrinsic to that required to effect penetration) is expressly criminalised by statute as a felony, a sexual crime of the highest order, or a misdemeanour. Although it appears from the language of the remaining thirteen State codes that extrinsic force may be required, courts in twelve states have accepted, for example, that the statutory force requirement was met when the defendant only pushed or pinned his victim down or otherwise physically manipulated her; the test for “force” was found to be “whether the act was against the will of [the victim]” ( Freeman v. State, 959 S.W.2d 401 (Arkansas 1998)). Thus, “force” was established where the perpetrator “pushed his body weight against [the victim]” and he was “large” or “husky” and the victim “petite” or “small” ( State v. Coleman, 727 A.2d 246 ( Connecticut, 1999) and State v. Plunkett, 934 P.2d 113 (Kansas, 1997)). The New Jersey Supreme Court has stated:", "“[A]ny act of sexual penetration ... without the affirmative and freely given permission of the victim ... constitutes the offence of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful ( In the Interest of M.T.S ., 609 A.2d 1266, 1277 (N.J. 1992)).”", "145. Historically, a number of States required a rape victim to display the “utmost resistance”. Today, that requirement has been rejected. Only two States continue to require a sexual assault victim to display “earnest” resistance (Alabama and West Virginia); however, they do not require her to resist if she reasonably believes that resistance would be futile or would result in serious bodily injury ( Richards v. State, 457 So.2d 893 (Alabama, 1985) – earnest resistance proved by victim's pleas to put her down and stop).", "146. Increasingly, courts in the United States are taking into account relevant social science data indicating that sexual assault victims react in unpredictable ways under conditions of psychological and physical abuse. In 1992, for example, the Supreme Court of New Jersey, when rejecting the resistance requirement for a sexual assault conviction, referred to “empirical research” to discredit “the assumption that resistance to the utmost or to the best of the woman's ability was the most reasonable or rational response to rape”. Indeed, rapists often employ subtle coercion or bullying when this is sufficient to overcome their victims. In most cases of rape against children, violence is not necessary to obtain submission. Courts are also recognising that some women become frozen with fear at the onset of a sexual attack and thus cannot resist ( People v. Iniguez, 872 P.2d 1183, 1189 (California, 1994)).", "(vi) Other legal systems", "147. Interights also submitted analyses of the relevant law in Australia, Canada and South Africa, concluding that lack of consent was the defining element of rape and sexual abuse in those countries and that proof of use of physical force by the perpetrator or of physical resistance by the victim was not required.", "B. The Court's assessment", "1. General approach", "(a) The existence of a positive obligation to punish rape and to investigate rape cases", "148. Having regard to the nature and the substance of the applicant's complaints in this particular case, the Court finds that they fall to be examined primarily under Articles 3 and 8 of the Convention.", "149. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002).", "150. Positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State's margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, pp. 11-13, §§ 23- 24 and 27, and August v. the United Kingdom (dec.), no. 36505/ 02, 21 January 2003).", "151. In a number of cases, Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002-I).", "152. Further, the Court has not excluded the possibility that the State's positive obligation under Article 8 to safeguard the individual's physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 128,).", "153. On that basis, the Court considers that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal ‑ law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution.", "(b) The modern conception of the elements of rape and its impact on the substance of member States'positive obligation to provide adequate protection", "154. In respect of the means to ensure adequate protection against rape, States undoubtedly enjoy a wide margin of appreciation. In particular, perceptions of a cultural nature, local circumstances and traditional approaches are to be taken into account.", "155. The limits of the national authorities'margin of appreciation are nonetheless circumscribed by the Convention provisions. In interpreting them, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI).", "156. The Court observes that, historically, proof of physical force and physical resistance was required under domestic law and practice in rape cases in a number of countries. The last decades, however, have seen a clear and steady trend in Europe and some other parts of the world towards abandoning formalistic definitions and narrow interpretations of the law in this area (see paragraphs 88-108 and 126- 47 above).", "157. Firstly, it appears that a requirement that the victim must resist physically is no longer present in the statutes of European countries.", "158. In common-law countries, in Europe and elsewhere, reference to physical force has been removed from the legislation and/or case - law ( see paragraphs 98, 100 and 138- 47 above, in relation to Ireland, the United Kingdom, the United States of America and other countries ). Irish law explicitly states that consent cannot be inferred from lack of resistance (see paragraph 98 above).", "159. In most European countries influenced by the continental legal tradition, the definition of rape contains references to the use of violence or threats of violence by the perpetrator. It is significant, however, that in case ‑ law and legal theory lack of consent, not force, is seen as the constituent element of the offence of rape (see paragraphs 90-97, 99 and 130- 37 above).", "160. Belgian law was amended in 1989 to state that any act of sexual penetration would constitute rape when committed in respect of a person who had not given consent. Thus, while the reference to “violence, duress or ruse” as punishable means of imposing a non-consensual act remains in the statute, violence and/or physical resistance are not elements of rape in Belgian law (see paragraphs 90 and 130- 3 4 above).", "161. Regardless of the specific wording chosen by the legislature, in a number of countries the prosecution of non-consensual sexual acts in all circumstances is sought in practice by means of interpretation of the relevant statutory terms (“coercion”, “violence”, “duress”, “threat”, “ruse”, “surprise” or others) and through a context-sensitive assessment of the evidence (see paragraphs 95 and 130- 47 above).", "162. The Court also notes that the member States of the Council of Europe, through the Committee of Ministers, have agreed that penalising non-consensual sexual acts, “[including] in cases where the victim does not show signs of resistance”, is necessary for the effective protection of women against violence (see paragraph 101 above) and have urged the implementation of further reforms in this area.", "163. In international criminal law, it has recently been recognised that force is not an element of rape and that taking advantage of coercive circumstances to proceed with sexual acts is also punishable. The International Criminal Tribunal for the former Yugoslavia has found that, in international criminal law, any sexual penetration without the victim's consent constitutes rape and that consent must be given voluntarily, as a result of the person's free will, assessed in the context of the surrounding circumstances (see paragraphs 102- 07 above). While the above definition was formulated in the particular context of rapes committed against the population in the conditions of an armed conflict, it also reflects a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse.", "164. As submitted by the intervener, the evolving understanding of the manner in which rape is experienced by the victim has shown that victims of sexual abuse – in particular, girls below the age of majority – often provide no physical resistance because of a variety of psychological factors or because they fear violence on the part of the perpetrator.", "165. Moreover, the development of law and practice in that area reflects the evolution of societies towards effective equality and respect for each individual's sexual autonomy.", "166. In the light of the above, the Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy. In accordance with contemporary standards and trends in that area, the member States'positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.", "(c) The Court's task in the present case", "167. In the light of the above, the Court's task is to examine whether or not the impugned legislation and practice and their application in the case at hand, combined with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State's positive obligations under Articles 3 and 8 of the Convention.", "168. The issue before the Court is limited to the above. The Court is not concerned with allegations of errors or isolated omissions in the investigation; it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on the alleged perpetrators'criminal responsibility.", "2. Application of the Court's approach", "169. The applicant alleged that the authorities'attitude in her case was rooted in defective legislation and reflected a predominant practice of prosecuting rape perpetrators only in the presence of evidence of significant physical resistance.", "170. The Court observes that Article 152 § 1 of the Bulgarian Criminal Code does not mention any requirement of physical resistance by the victim and defines rape in a manner which does not differ significantly from the wording found in statutes of other member States. As seen above, many legal systems continue to define rape by reference to the means used by the perpetrator to obtain the victim's submission (see paragraphs 74 and 88 ‑ 100).", "171. What is decisive, however, is the meaning given to words such as “force” or “threats” or other terms used in legal definitions. For example, in some legal systems “force” is considered to be established in rape cases by the very fact that the perpetrator proceeded with a sexual act without the victim's consent or because he held her body and manipulated it in order to perform a sexual act without consent. As noted above, despite differences in statutory definitions, the courts in a number of countries have developed their interpretation so as to try to encompass any non-consensual sexual act (see paragraphs 95 and 130- 47).", "172. In the present case, in the absence of case-law explicitly dealing with the question whether every sexual act carried out without the victim's consent is punishable under Bulgarian law, it is difficult to arrive at safe general conclusions on this issue on the basis of the Supreme Court's judgments and legal publications (see paragraphs 75-85 above). Whether or not a sexual act in a particular case is found to have involved coercion always depends on a judicial assessment of the facts. A further difficulty is the absence of a reliable study of prosecutorial practice in cases which never reached the courts.", "173. Nonetheless, it is noteworthy that the Government were unable to provide copies of judgments or legal commentaries clearly disproving the allegations of a restrictive approach in the prosecution of rape. The Government's own submissions on the elements of rape in Bulgarian law were inconsistent and unclear (see paragraphs 122 - 23 above). Finally, the fact that the vast majority of the Supreme Court's reported judgments concerned rapes committed with the use of significant violence (except those where the victim was physically or mentally disabled), although not decisive, may be seen as an indication that most of the cases where little or no physical force and resistance were established were not prosecuted (see paragraphs 74-85, 113, 122 and 123 above).", "174. The Court is not required to seek conclusive answers about the practice of the Bulgarian authorities in rape cases in general. It is sufficient for the purposes of the present case to observe that the applicant's allegation of a restrictive practice is based on reasonable arguments and has not been disproved by the Government.", "175. Turning to the particular facts of the applicant's case, the Court notes that, in the course of the investigation, many witnesses were heard and an expert report by a psychologist and a psychiatrist was ordered. The case was investigated and the prosecutors gave reasoned decisions, explaining their position in some detail (see paragraphs 44-65 above).", "176. The Court recognises that the Bulgarian authorities faced a difficult task, as they were confronted with two conflicting versions of the events and little “direct” evidence. The Court does not underestimate the efforts made by the investigator and the prosecutors in their work on the case.", "177. It notes, nonetheless, that the presence of two irreconcilable versions of the facts obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances. Little was done, however, to test the credibility of the version of the events proposed by P. and A. and the witnesses called by them. In particular, the witnesses whose statements contradicted each other, such as Ms T. and Mr M., were not confronted. No attempt was made to establish with more precision the timing of the events. The applicant and her representative were not given the opportunity to put questions to the witnesses whom she accused of perjury. In their decisions, the prosecutors did not devote any attention to the question whether the story proposed by P. and A. was credible, although some of their statements called for caution, such as the assertion that the applicant, 14 years old at the time, had started caressing A. minutes after having sex for the first time in her life with another man (see paragraphs 16-65 above).", "178. The Court thus considers that the authorities failed to explore the available possibilities for establishing all the surrounding circumstances and did not assess sufficiently the credibility of the conflicting statements made.", "179. It is highly significant that the reason for that failure was, apparently, the investigator's and the prosecutors'opinion that, since what was alleged to have occurred was a “date rape”, in the absence of “direct” proof of rape such as traces of violence and resistance or calls for help, they could not infer proof of lack of consent and, therefore, of rape from an assessment of all the surrounding circumstances. That approach transpires clearly from the position of the investigator and, in particular, from the regional prosecutor's decision of 13 May 1997 and the Chief Public Prosecutor's decision of 24 June 1997 (see paragraphs 55, 60, 61, 64 and 65 above).", "180. Furthermore, it appears that the prosecutors did not exclude the possibility that the applicant might not have consented, but adopted the view that in any event, in the absence of proof of resistance, it could not be concluded that the perpetrators had understood that the applicant had not consented (see the text of the prosecutors'decisions in paragraphs 64 and 65 above). The prosecutors forwent the possibility of proving the perpetrators'mens rea by assessing all the surrounding circumstances, such as evidence that they had deliberately misled the applicant in order to take her to a deserted area, thus creating an environment of coercion, and also by judging the credibility of the versions of the facts proposed by the three men and witnesses called by them (see paragraphs 21, 63 and 66-68 above).", "181. The Court considers that, while in practice it may sometimes be difficult to prove lack of consent in the absence of “direct” proof of rape, such as traces of violence or direct witnesses, the authorities must nevertheless explore all the facts and decide on the basis of an assessment of all the surrounding circumstances. The investigation and its conclusions must be centred on the issue of non-consent.", "182. That was not done in the applicant's case. The Court finds that the failure of the authorities in the applicant's case to investigate sufficiently the surrounding circumstances was the result of their putting undue emphasis on “direct” proof of rape. Their approach in the particular case was restrictive, practically elevating “resistance” to the status of defining element of the offence.", "183. The authorities may also be criticised for having attached little weight to the particular vulnerability of young persons and the special psychological factors involved in cases concerning the rape of minors (see paragraphs 58-60 above).", "184. Furthermore, they handled the investigation with significant delays (see paragraphs 44-46 above).", "185. In sum, the Court, without expressing an opinion on the guilt of P. and A., finds that the investigation of the applicant's case and, in particular, the approach taken by the investigator and the prosecutors in the case fell short of the requirements inherent in the States'positive obligations – viewed in the light of the relevant modern standards in comparative and international law – to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.", "186. As regards the Government's argument that the national legal system provided for the possibility of a civil action for damages against the perpetrators, the Court notes that this assertion has not been substantiated. In any event, as stated above, effective protection against rape and sexual abuse requires measures of a criminal-law nature (see paragraphs 124 and 148- 53 above).", "187. The Court thus finds that in the present case there has been a violation of the respondent State's positive obligations under both Articles 3 and 8 of the Convention. It also holds that no separate issue arises under Article 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "188. Comparing the texts of Articles 157 § 2 and 152 of the Bulgarian Criminal Code, which concern the age of consent for sexual activity, the applicant complained that the law afforded better protection against rape to “homosexual children” than to “heterosexual children”.", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "189. In the light of its findings above, the Court considers that it is not necessary to examine the complaint under Article 14 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "190. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "191. The applicant stated that she was continuing to suffer psychological trauma years after she had been raped. That was to a large extent due to the fact that the relevant law and practice had not ensured effective protection. Furthermore, the investigation in her case had been flawed and had victimised her.", "192. On that basis, referring to several of the Court's judgments in cases of sexual abuse, the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.", "193. The Government submitted that the amount claimed was excessive.", "194. The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities'approach found in the present case. Making an assessment on an equitable basis, the Court awards her EUR 8,000.", "B. Costs and expenses", "195. The applicant claimed EUR 4,740 for a total of 118.5 hours of legal work on her case, at the rate of EUR 40 per hour. She submitted a fee agreement with her lawyer, signed in 2003 by her mother, and a time sheet. The applicant's lawyer explained that the fee agreement had been signed by the applicant's mother because he had been initially hired by her, the applicant having been under age at the time.", "196. The Government stated that the fee agreement was not valid because the applicant had turned 18 in September 1998 and since then her mother had no longer been entitled to act on her behalf. Even at the time of the initial, apparently oral, agreement between the mother and the lawyer, the applicant had been over 14 years of age and had thus been entitled under Bulgarian law to perform legal acts with her mother's approval.", "197. The Government also stated that the parties had agreed on the hourly rate of EUR 40 in 2003, at the final stage of the proceedings, which meant that a high and arbitrary fee had been fixed. In “other circumstances”, the applicant would not have agreed to pay such amounts.", "198. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002 ).", "199. The Government have not disputed the fact that the applicant's lawyer had carried out legal work in her case, after being given a power of attorney dated 27 November 1997 signed by the applicant and her mother, at a time when the applicant had not yet reached the age of majority (see paragraphs 2 and 9 above). It has not been alleged that the applicant disputes the costs her lawyer has charged her or that the amounts claimed are unrelated to the violation found in the present case. In these circumstances, there is no doubt that the legal costs claimed were actually and necessarily incurred.", "200. The Government have not objected to the number of hours of legal work claimed. The Court further considers that the hourly rate of EUR 40 is not excessive. Accordingly, deducting EUR 630 received in legal aid from the Council of Europe, it awards EUR 4,110 in respect of costs.", "C. Default interest", "201. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1977 and lives in Stara Zagora.", "1. The events of 29 March 1991", "6. According to the judgment of 30 November 2005 of the Stara Zagora District Court, in the afternoon of 29 March 1991 the applicant, then aged thirteen, was invited to a party at the home of Mr T.Z. There were several young people in the apartment. After some time Mr D.I., then aged seventeen, took the applicant to a separate room and threatened her, after which he raped her. Then he went out and Mr T.Z., who was twenty - one years old, entered the room. He beat the applicant and attempted to rape her but was interrupted by his mother ringing the doorbell. Mr T.Z. asked the applicant and the other guests to leave.", "7. The applicant told her parents that she had been raped, and they took her to the doctor and informed the police.", "8. In a medical expert report of the same date two experts of the Stara Zagora Military Medical Institute established that there was an injury to the applicant ’ s hymen and that she had several bruises on her head.", "2. The pre-trial investigation", "( a ) Preliminary inquiry", "9. On 4 April 1991 the applicant ’ s mother lodged a written complaint with the police authorities against Mr T.Z. and Mr D.I.", "10. The police carried out an inquiry, in the course of which it took statements from the applicant, Mr T.Z. and Mr D.I. The two suspects gave their addresses.", "( b ) Opening of criminal proceedings", "11. On 27 January 1992 the Stara Zagora district prosecutor opened criminal proceedings against Mr T.Z. and Mr D.I.", "12. On 9 April 1992 Mr T.Z. was charged with attempted aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On the same day the investigator questioned him, the applicant and a witness.", "13. In a letter of 10 April 1992 the investigator requested the police to establish the full names and addresses of four witnesses.", "( c ) Stay of the proceedings", "14. On 28 April 1992 the investigator established that Mr D.I. had not appeared before him, although he had been duly summoned, and that the whereabouts of certain witnesses were unknown. He proposed that the criminal proceedings be stayed. By a decree of 24 November 1992 the district prosecutor stayed the criminal proceedings against Mr T.Z. and Mr D.I., on the ground that the latter ’ s whereabouts were unknown.", "15. There is no information as to whether the authorities took any steps to find the persons concerned.", "( d ) Resumption of the proceedings and further investigation", "16. In a report of 8 September 2000 a police officer stated that Mr D.I. had been found. The address specified in the report was the same as the one Mr D.I. had given in his written statement of 1991. In a statement of 8 September 2000 Mr D.I. said that he had not changed his place of residence and that he had never been summoned by the investigator.", "17. On 19 December 2000 the district prosecutor resumed the criminal proceedings against Mr T.Z. and Mr D.I.", "18. In a letter of 26 February 2001 the investigator asked the district prosecutor to extend the period of investigation by six months, stating that the work on the case had not been completed on time because of his involvement in other cases. On 19 March 2001 the district prosecutor granted a two-month extension.", "19. In a letter of 28 June 2001 the district prosecutor instructed the investigator to take urgent measures to complete the investigation, informing him that the case would be subject to special monitoring.", "20. On 5 November 2002 Mr D.I. was charged with aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On 14 November 2002 he was questioned before a judge.", "21. In the period between 7 November and 5 December 2002 the investigator questioned twelve witnesses, and appointed two experts to make a psychiatric and psychological assessment of Mr T.Z., Mr D.I. and the applicant, as well as a medical expert, who, on the basis of the documents in the file, confirmed the conclusions of the medical report of 29 March 1991.", "22. The results of the preliminary investigation were communicated to Mr T.Z. and Mr D.I. on 4 March 2003.", "23. On 6 March 2003 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that the two accused should be put on trial.", "( e ) The first termination of the criminal proceedings and their partial resumption", "24. In a decree of 30 September 2003 the district prosecutor terminated the criminal proceedings in respect of Mr D.I. as time-barred. He found that a shorter prescription period was applicable to him because he had been under age at the time of the offence.", "25. In a decree of 29 March 2004 the district prosecutor terminated the criminal proceedings in respect of Mr T.Z., finding that the charges against him had not been proved and that it would be practically impossible to gather any new evidence in view of the period of time which had elapsed since the events.", "26. Following an appeal by the applicant, on 20 April 2004 the Stara Zagora District Court quashed the decree of 29 March 2004 and resumed the proceedings in respect of Mr T.Z. It found that the district prosecutor should have ordered witness confrontations.", "27. On 30 April 2004 the district prosecutor referred the case back to the investigator for further examination.", "28. In the period from 7 to 11 June 2004 the investigator carried out four witness confrontations.", "29. A second psychiatric and psychological report was submitted in respect of the applicant on 22 June 2004. It confirmed that she had been able to understand the events of 29 March 1991 and that she had not been able to effectively resist the mental and physical violence against her. It was unlikely that the applicant had testified under the influence of her parents.", "30. On 9 June 2004 the investigator ordered an expert examination of the clothes allegedly worn by the applicant on the day of the incident, as well as of other items. Several expert reports were prepared in the period from 16 to 22 June 2004.", "31. On 25 June 2004 the results of the preliminary investigation were presented to Mr T.Z. On the same date the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr T.Z. should be tried for attempted rape.", "( f ) The second termination of the criminal proceedings and their resumption", "32. On 19 July 2004 the district prosecutor once again terminated the criminal proceedings against Mr T.Z. for lack of direct evidence.", "33. Following an appeal by the applicant, on 25 August 2004 the Stara Zagora regional public prosecutor ’ s office upheld the decree of 19 July 2004. The applicant appealed further.", "34. In a decree of 21 September 2004 the Plovdiv appeals public prosecutor ’ s office quashed the decrees of 25 August 2004, 19 July 2004 and 30 September 2003 (see paragraph 24 above) and referred the case back to the district prosecutor for further investigation. The district prosecutor was ordered to monitor the case and see to the lawful and timely completion of the investigation within two months. The decision further stated that the applicant ’ s account of the events had been corroborated by numerous pieces of circumstantial evidence and that the prescription period for prosecuting Mr D.I. had not expired because there was evidence of complicity between the two accused which affected the legal characterisation of the charges.", "35. On 5 October 2004 the district prosecutor referred the case back to the investigator with instructions to gather additional evidence within thirty days. On 8 November 2004 this deadline was extended by thirty days.", "36. In a letter of 3 January 2005 the district prosecutor instructed the investigator to send him the file as soon as possible. In a note of 12 January 2005 the district prosecutor stated that he had reached an agreement with the investigator that the file would be sent by 31 January 2005.", "37. A confrontation between the applicant and Mr T.Z. was carried out on 17 January 2005.", "38. On 18 January 2005 the applicant was questioned before a judge.", "39. On 21 January 2005 Mr D.I. and Mr T.Z. were charged with aggravated rape and attempted aggravated rape respectively, committed in complicity, and were ordered not to leave the town pending the criminal proceedings. They were questioned on the same day.", "40. A confrontation between the applicant and Mr D.I. was carried out and two witnesses were questioned before a judge between 24 and 26 January 2005.", "41. An expert report concerning a tear in the jeans allegedly worn by the applicant on the date of the incident was submitted on 31 January 2005.", "42. The results of the preliminary investigation were communicated to Mr D.I. and Mr T.Z. on 2 and 3 February 2005 respectively.", "43. On 9 February 2005 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr D.I. and Mr T.Z. should be tried on the charges.", "3. The trial", "44. An indictment against the two accused was filed with the Stara Zagora District Court on 22 February 2005.", "45. Two hearings scheduled for 14 April and 22 June 2005 were postponed because one of the accused and the lawyer of the other accused had fallen ill.", "46. A hearing was held on 11 July 2005. The applicant joined the proceedings as a private prosecutor. She did not bring a civil action.", "47. On 12 October and 30 November 2005 the District Court held hearings. The defendants did not plead the statute of limitations but asked the court to pronounce a judgment.", "48. In a judgment of 30 November 2005 the District Court convicted Mr D.I. of aggravated rape but relieved him from liability and punishment. It reasoned that although Mr D.I. had not pleaded the statute of limitations, the latter was nevertheless an absolute obstacle to his punishment. It further convicted Mr T.Z. of attempted aggravated rape and sentenced him to three years ’ imprisonment. It found that the long lapse of time since the rape represented a mitigating factor which must be taken into account in determining his punishment. The court acquitted the two accused of the complicity charges.", "49. Upon appeals by the applicant, the district prosecutor and Mr T.Z., on 20 October 2006 the Stara Zagora Regional Court upheld the judgment of 30 November 2005 in respect of Mr D.I. This part of the judgment was not subject to appeal and became final.", "50. The Regional Court further terminated the criminal proceedings against Mr T.Z. as time-barred, finding that the prescription period for his prosecution had expired meanwhile.", "51. On 18 May 2007 the applicant ’ s lawyer was informed of the judgment and of the applicant ’ s right to appeal against the termination of the criminal proceedings against Mr T.Z. The applicant did not appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "52. Pursuant to the 1974 Criminal Procedure Code, in force at the relevant time and until 2006, as well as the constant case-law of the Supreme Court of Cassation, the courts had to terminate criminal proceedings upon expiry of the statutory period of limitation. Nevertheless, the accused could request their continuation (Article 21). In such a case, the court could find him guilty but could not punish him (Article 303).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "53. The applicant complained that the investigation into the sexual offences of which she had been a victim had been ineffective, and that she had not had an effective domestic remedy in this respect. She relied on Articles 3, 8 and 13 of the Convention.", "54. Having regard to the nature and the substance of the applicant ’ s complaints in the present case, the Court considers that the proper legal characterisation of the complaints is the procedural limb of Articles 3 and 8 of the Convention, which read:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 § 1", "“Everyone has the right to respect for his private ... life ...”", "A. Admissibility", "1. Competence ratione temporis", "55. Although the respondent Government have not raised any objection as to the Court ’ s competence ratione temporis, this issue nevertheless calls for consideration by the Court (see Blečić v. Croatia [GC], no. 59532/00, § § 63 et seq., ECHR 2006 ‑ III ).", "56. The Court has stated that the procedural obligation to carry out an effective and prompt investigation under Article 2 has evolved into a separate and autonomous duty capable of binding the State, even when the substantive act took place before the critical date (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009 ). For such a procedural obligation to come into effect, a significant proportion of the investigating steps required by this provision will have been or ought to have been taken after the critical date ( ibid ., § 163). Subsequently the Court applied this principle to cases concerning deaths at the hands of private individuals (see Lyubov Efimenko v. Ukraine, no. 75726/01, § 63, 2 5 November 2010; and Frandeş v. Romania (dec.) no. 35802/05, 17 May 2011). Furthermore, in Tuna v. Turkey ( no. 22339/03, § 58, 19 January 2010 ) and in Stanimirović v. Serbia ( no. 26088/06, § 28, 18 October 2011, not yet final ), it went on to hold that the principles established in Šilih applied similarly to the procedural obligation to investigate under Article 3.", "57. In the present case, while the sexual offences against the applicant were committed in 1991, before the entry into force of the Convention in respect of Bulgaria on 7 September 1992, most of the procedural steps were taken after that date (see paragraphs 9-51 above).", "58. In view of the above, the Court finds that the alleged procedural violation of Article 3 falls within the Court ’ s temporal jurisdiction and that it is therefore competent to examine this part of the application. It is true that the applicant also relied on Article 8 in the present case and that in the case of M.C. v. Bulgaria ( no. 39272/98, ECHR 2003 ‑ XII ) the Court referred to both Article 3 and Article 8, finding that there was an obligation on States to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation (see §§ 148-153 of that judgment). Noting that in the present case the applicant ’ s complaints are limited to the effectiveness of the investigation and that Article 3 provides sufficient legal basis for the State ’ s duty to conduct an investigation into serious offences against an individual ’ s physical integrity, the Court considers that it is not necessary in the particular circumstances of the instant case to decide whether its temporal jurisdiction also extends, in situations like the present one, to issues under Article 8. Therefore it will confine itself to determining whether the events that occurred after the entry into force of the Convention in respect of Bulgaria disclosed a breach of Article 3 under its procedural limb (see Tuna, cited above, § 63 ).", "2. Exhaustion of domestic remedies and conclusion on admissibility", "59. The Court notes that the applicant did not appeal against the decision of the Regional Court of 20 October 2006 to terminate the criminal proceedings against Mr T.Z. as time-barred (see paragraph 5 1 above). Nevertheless, in view of the clear-cut domestic legislation and case-law on the statutory period of limitation (see paragraph 52 above), it does not appear that a cassation appeal by the applicant would have offered any prospect of a different outcome. The Court therefore considers that the complaint under Article 3 cannot be dismissed for failure to exhaust domestic remedies.", "60. It further notes that the complaint under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "61. The applicant stated that although she had been a victim of a serious sexual assault at the young age of thirteen, the authorities had unduly delayed the gathering of evidence for more than ten years, thus preventing the establishment of the truth and the punishment of the offenders. She complained, in effect, that there had been no effective official investigation of the offences, affecting her personal integrity, of which she had been a victim.", "62. The Government stated that they would leave it to the Court to decide whether Article 3 had been violated. They acknowledged that during the pre-trial stage the proceedings had been suspended for a considerable period of time. Nevertheless, they argued that the authorities had conducted a thorough and careful investigation and that no delays had occurred during the trial.", "2. The Court ’ s assessment", "63. The relevant principles concerning the State ’ s obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular sexual abuse, committed by private individuals, are set out in M.C., cited above, §§ 148-153.", "64. As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009, with further references ). The promptness of the authorities ’ reaction to the complaints is an important factor (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has been given in the Court ’ s judgments to matters such as the opening of investigations, delays in identifying witnesses or taking statements (see Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 88 and 93, 2 November 2010 ), the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001), and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see Angelova and Iliev v. Bulgaria, no. 55523/00, §§ 101-103, 26 July 2007 ).", "65. Applying these principles to the present case, the Court notes that on 7 September 1992, the date of entry into force of the Convention in respect of Bulgaria, the investigation was dormant, no significant investigative measures having been carried out on the ground that the address of one of the suspects, Mr D.I., was unknown. It is highly significant, however, that when Mr D.I. was eventually “found” eight years later, it turned out that he had never changed his address (see paragraph 16 above). Apparently no attempts were made to establish his whereabouts during this considerable period. No consideration was given to the possibility of separating the cases against Mr T.Z. and Mr D.I. and proceeding with the case in respect of the former. In the Court ’ s view, the authorities ’ inaction verges on arbitrariness, having regard, in particular, to the gravity of the facts and the applicant ’ s age at the relevant time. As a result, a number of urgent investigative measures, such as the commissioning of an expert examination of the applicant ’ s clothes and interviewing witnesses, were taken only many years after the rape (see paragraphs 21 and 30 above). It is to be noted furthermore that two decisions to discontinue the criminal proceedings were issued, only to be subsequently set aside by the supervising prosecutors (see paragraphs 24-34 above).", "66. In view of the exceptionally slow pace of the proceedings, it is not surprising that the prosecution eventually became time-barred. The domestic courts discontinued the proceedings against one of the defendants, Mr T.Z., and although they convicted the other one, Mr D.I., they did not punish him because of the statute of limitations (see paragraphs 48-50 above). Thus, although the facts of the case and the identity of the offenders were established, albeit many years after the rape, the investigation can hardly be regarded as having been effective and capable of leading to the proper punishment of those responsible.", "67. It follows that there has been a violation of the respondent State ’ s procedural obligations under Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION", "68. The applicant complained that the length of the criminal proceedings against her aggressors had been excessive and that she had not had an effective domestic remedy in this respect. She relied on Articles 6 § 1 and 13 of the Convention, which provide, in so far as relevant:", "Article 6 § 1", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "69. The Court notes that the applicant did not join the criminal proceedings against her aggressors as a civil party (see paragraph 46 above) and that therefore the proceedings at issue did not concern the determination of her civil rights within the meaning of Article 6 (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I ). The Court further notes that the applicant ’ s grievances concerning the protracted investigation have already been examined under Article 3 as an aspect of its effectiveness (see paragraphs 6 5 -6 7 above).", "70. It follows that Article 6 § 1 does not apply, and the complaints under Article 6 and, as a consequence under Article 13, are therefore incompatible ratione materiae with the provisions of the Convention and should be rejected pursuant to Article 35 §§ 3 and 4.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "71. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "72. The applicant claimed 100 ,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of the violations of her rights under the Convention, stating, in particular, that the prolonged and ineffective investigation of the sexual offences against her had aroused in her feelings of injustice, helplessness and frustration.", "73. The Government contested this claim.", "74. The Court considers that the applicant must have sustained non ‑ pecuniary damage as a result of the breaches of her rights found in the case. Taking into account all the circumstances of the case, and deciding on an equitable basis, the Court awards her EUR 1 5, 0 00 under this head.", "B. Costs and expenses", "75. The applicant sought EUR 3,000 for fifty hours of legal work by her lawyer in the proceedings before the Court, at an hourly rate of EUR 60. In support of this claim she presented a contract and a time sheet. She further claimed 500 Bulgarian levs for postage, translation, and office expenses but did not present any invoices or receipts in support of her claim.", "76. The Government considered that the claims were excessive.", "77. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, and taking into account the applicant ’ s failure to provide all necessary documents, such as invoices and receipts for postage or office expenses, the Court finds it reasonable to award the sum of EUR 3, 0 00 to the applicant, plus any tax that may be chargeable to her.", "C. Default interest", "78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants, son and father, were born in 1990 and 1954 respectively and currently live in Iasi.", "A. The alleged rape and violence inflicted on the first applicant", "1. Applicants’ version of the abuse", "7. From January 1998 to April 1998, the first applicant, who was then a seven year-old boy, was allegedly subjected to repeated rape and violence by P.E.", "8. In January 1998, the child was followed home from school by P.E. In front of the applicant’s family’s apartment, P.E. grabbed the key from his hand, opened the door and forcefully pushed the boy inside. He hit the child several times in the stomach. He pulled the applicant’s clothes off and tied his hands and legs and gagged him with strips of white cloth that he had taken out of his trouser pocket. Then P.E. dragged the boy into the kitchen, removed a piece of furniture from against the wall and placed it near the couch. He bent the child over the furniture and sexually abused him. He then removed the gag and forced the child into oral sex. P.E. hit the applicant again several times in the stomach, head and genitalia, untied him and told him to put his clothes on. He threatened the child with a knife and warned him that he would kill him if anyone found out what had happened.", "9. The first applicant was too scared to scream during the assault.", "10. The abuse continued during the following months, several times per week. At a certain point, P.E. made a copy of the applicant’s key so he could enter the apartment. Sometimes he would wait for the child inside, sometimes he came with a dog and once with other persons, including two minor children. Before leaving the apartment, P.E. sometimes stole food and small sums of money.", "11. Eventually the applicant told his brother and father about what was happening to him.", "12. After the events the first applicant changed school and in October 2005 the family finally moved from Bacău to Iaşi, following the advice of the school psychologist.", "2. The Government’s position", "13. The Government did not contest the description of the facts by the first applicant.", "B. Criminal investigations into the allegations of rape and violence", "1. Police investigations", "14. On 27 April and 4 May 1998 on behalf of his son, the second applicant reported the sexual abuse and violence inflicted on the child to the Bacău Police. He accused P.E., S.P. and L.I.D. He reiterated his complaints on 18 and 28 May, 4, 8 and 9 June and on 19 July 1998.", "15. The police started investigating the case.", "16. On 18 May 1998, at the request of the investigators, the first applicant underwent a medical examination at the Bacău Clinic. The record noted:", "“... healing anal lesion and hypotonia of the anal sphincter. No signs of violence on the body ... The lesions necessitate 16-18 days of medical care and could have been caused by anal intercourse.”", "A medical certificate issued on 19 May 1998 at the request of the police, summarised the findings of the examination.", "17. On 12, 15 and 29 June 1998 P.E. gave statements to the police. He claimed that he had not been in the area during that period, and that he did not know the applicants’ family. He had only been in the building once, on New Year’s Eve, for approximately ten minutes. He admitted that he used to take his sister’s dog out for a walk but he had not done so in a while; during the time in question he had been training a similar dog, in the afternoons, from 5 p.m. to 7 p.m. During a polygraph test, P.E. showed simulated behaviour when asked whether he had had sexual intercourse with the first applicant.", "S.P. and L.I.D. denied any participation in the abuse.", "18. The first applicant was interviewed several times by the investigators. He gave details about the facts. His statements were recorded on 19 June 1998, 12 October 2001, 31 May 2002 and 25 March 2003. In some of the interviews he declared that he had told his brother and father about the abuse, but in others he stated that he had not mentioned anything to anyone. In his first statement he also told the police that the day after he had told his father about the abuse, his parents had allowed him to return on his own from school and he had remained alone in the apartment after school.", "19. The second applicant gave statements to the investigators, relating the facts as his son had described them.", "20. On 15 December 1999 the first applicant’s mother declared that she had suspected something was going on as her son’s voice on the phone had sometimes been trembling and as she had sometimes found the house untidy and litter in the bathroom, but that she had thought the children were responsible. Before the prosecutor she supplemented her statements and stated that during that time she had noticed that food and money had disappeared from the house.", "21. The first applicant identified P.E. in a line up at the police headquarters.", "22. Several other witnesses were interviewed by the police, including neighbours and acquaintances.", "R.M., the neighbour from upstairs, stated that she had no knowledge of what had happened in the applicants’ home. A few days later she changed her statements and declared that she had seen a man who fitted P.E.’s description entering the applicants’ apartment with a dog during the period in question. She explained that she had been afraid that if she talked about what she had seen, the neighbours would have thought she had been spying on them. During the investigations and court proceedings R.M. changed her statements, claiming both to have seen P.E. entering the victim’s apartment several times, between February and March, and to have seen him entering only once.", "23. On 10 January 2000 the police confronted R.M. and P.E. They both maintained their previous statements.", "24. B.V. informed the police that at the second applicant’s request, he had followed the applicant to school and home a few times in April 1998. He had noticed P.E. in the vicinity several times, and on 22 April 1998 had seen him forcing the first applicant into the apartment.", "R.I., R.M.’s adolescent son, stated that he had seen P.E. entering the victim’s home from January to April, sometimes with a dog. On 27 June 1998 the police organised a confrontation between R.I. and P.E. R.I. maintained that he had seen P.E. entering the apartment with the victim and then had heard the child scream. P.E. denied having seen R.I. or having abused the first applicant.", "25. The investigators also searched the applicants’ and P.E.’s homes, but found no further evidence to support the accusations. They checked the record of calls made from the applicants’ telephone during the period under investigation. They also checked and confirmed that the upstairs neighbours could see, from the hallway, who entered the applicants’ apartment.", "26. During the investigations the first applicant underwent several medical and psychiatric evaluations in the presence of his father.", "27. On 1 February 2000 a new medical examination by the Bacău Laboratory of Forensic Medicine, ordered by the police, confirmed the findings of the expert examination of 18 May 1998. The doctors considered that it was impossible to tell whether the perpetrator had been an adult or a minor. They concluded that the lesions could only have been caused by repeated sexual abuse.", "2. The prosecutors’ decisions", "28. On 16 June 2000 the Prosecutor’s Office attached to the Bacău District Court decided to discontinue prosecution of P.E. and not to prosecute S.P. and L.I.D. The second applicant objected.", "29. On 27 July 2000 the prosecutor at the Bacău District Court allowed the objection and sent the case back to the police for further investigation.", "30. On 28 February 2001 the Prosecutor’s Office attached to the Bacău District Court again decided to discontinue the prosecution. On 5 September 2001 the second applicant’s objection was allowed by the Prosecutor’s Office attached to the Supreme Court of Justice. The latter sent the case to the District Court prosecutor and ordered him to continue the investigation.", "31. On 7 March 2002 the prosecution file was sent to the Prosecutor’s Office attached to the Bacău County Court with an instruction to continue the investigation.", "32. On 16 September 2002 the prosecutor at the Bacău County Court discontinued the prosecution of P.E. and decided not to prosecute S.P. and L.I.D. on the ground that they had not committed the crimes. It was also decided to continue the investigation in order to identify the criminals.", "33. The second applicant appealed against the decision. On 11 November 2002 the Prosecutor’s Office attached to the Bacău Court of Appeal reversed the decision.", "34. On 8 April 2003, the prosecutor at the Bacău County Court committed P.E. to trial for rape and unlawful entry of the victim’s home ( violare de domiciliu ). It was also decided not to prosecute S.P. and L.I.D. The first applicant sought civil damages in the amount of 300,000,000 Romanian lei.", "35. During this period some witnesses were brought in again for interviews and a new expert report was drafted concluding that the anal lesions suffered by the first applicant may have been produced ten to twelve days before the expert examination of 19 May 1998. On 31 March 2002, the second applicant refused to subject his son, the first applicant, to another psychiatric evaluation.", "3. Complaints about the investigations", "36. Throughout the investigation and prosecution, the second applicant complained several times about the length of the proceedings. His complaints were dismissed by the Prosecutor’s Office attached to the Bacău District Court on 16 August 1999 and 29 February 2000. On 12 July 2002 the Bacău County Police answered a similar complaint, outlining the latest procedural steps taken in the case.", "37. In addition, on 22 November 2001 the second applicant complained that he, his family and some of the witnesses had received threats from P.E. On 8 November 2004 P.E. threatened the applicants with retaliation. They reported the incidents to the police.", "38. On 20 April 2004 the second applicant complained about the prosecutor’s decision not to prosecute S.P. and L.I.D. On 21 May 2004 the Bacău District Court dismissed the complaint. The decision became final as the parties did not appeal against it.", "C. First-instance proceedings", "39. The case was initially referred to the Bacău County Court. However, on 27 May 2003 the County Court changed the legal classification of the crimes and sent the case to the District Court. It noted that at the time when the facts occurred, males were not recognised as potential victims of rape. Furthermore, at the time of the investigations, same-sex relations had been decriminalised. Therefore the facts under investigation could only be classified as the crime of “sexual perversion” and “sexual corruption of a minor”, which were under the jurisdiction of the district courts.", "The Bacău District Court started the examination of the case. On 13 May 2003 the first applicant gave a detailed description of the facts. P.E. denied having committed any crime against the applicant.", "40. In September 2003 the first applicant’s older brother gave a statement to the court. He related what his brother had told him about the abuse. He further stated that around that period (January to April 1998) his brother’s behaviour had changed, he had refused to eat, had constantly been scared and had sometimes had blood on the back of his underpants. He declared that their mother had also noticed those blood stains.", "41. The first applicant’s mother admitted that neither she nor her husband had taken time off work to accompany the child and see what had happened, although she had noticed the changes in his behaviour and sometimes even physical signs of potential abuse.", "42. Several witnesses were interviewed by the court, including the neighbours R.I. and R.M., as well as S.P.", "43. Between 20 December 2002 and 25 March 2003, the first applicant underwent a psychological evaluation. The final report revealed that he showed anxiety when shown his alleged aggressor’s image, uncertainty and social isolation; that he wished to have the routine of a “normal child”; and that he had a tendency to exaggerate and invent things, common to sufferers of trauma caused by such violence, especially children.", "44. On 3 June 2003 the second applicant complained about the length of the proceedings and about P.E.’s request for release. On 11 August 2003 he complained that P.E. had been released from detention.", "45. On 17 November 2003 the first applicant underwent a psychiatric evaluation in Iaşi Hospital No. 7. The examination commission noted that he was scared, insecure, had difficulty concentrating and showed the frustration associated with the experience of not being believed by others.", "46. On 5 May 2004 the Bacău District Court acquitted P.E., on the ground that the crimes had not been committed by him.", "47. The court noted in particular that the parents had failed to notice the change in their child’s behaviour and to notify the authorities in good time, but rather had waited until after the abuse had been going on for some time. The court also observed that the descriptions of the facts given by the first applicant and the witnesses had not been accurate and differed in the details and pointed to the fact that the second applicant had tried to influence some of the witnesses to give statements against P.E. The court also attached importance to the fact that the searches performed during the criminal investigation had revealed no traces of P.E.’s presence in the victim’s apartment or any evidence in P.E.’s apartment to support the accusation against him. Lastly, the court considered that the findings of the medical report were not conclusive as to P.E.’s guilt.", "D. The appeal proceedings", "48. On 4 October 2004 the Bacău County Court dismissed the appeals lodged by the prosecutor and the applicant against the judgment given by the District Court.", "The County Court found that there were contradictions in the statements given by the parties and witnesses. It acknowledged that such contradictions may have been caused by the time that had lapsed between the events and the examination of evidence by the courts, but considered that the length of the investigations had not been the main cause of the discrepancies. Accordingly, it noted that from the beginning of the investigation the second applicant and the witnesses had given contradictory descriptions of the aggressor in their various statements and considered that some of the witnesses had been dishonest and that the victim’s father had tried to influence several individuals to testify against P.E. The court also considered that the police line up had not been carried out properly, as the persons chosen to stand with P.E. had differed in physical appearance, in particular their height, length of hair, and posture. It also noted that only one family from the whole block of flats had heard the child screaming. The court was concerned by the fact that despite the alleged physical evidence of abuse (blood stains for example) and other odd occurrences around the house (missing food, moved furniture), the parents had waited a long time before reporting the alleged abuse to the police. Lastly, it noted that his psychological profile indicated that the first applicant was prone to exterior influence and fantasizing, and considered that he might have “put his parents on a false track, either because he did not know who the aggressor was or because he wanted to hide the latter’s identity”.", "On 20 January 2005 the Bacău Court of Appeal dismissed, by two votes to one, the appeals in cassation lodged by the prosecutor and the applicant. It reiterated the arguments put forward by the County Court. The dissenting judge argued that the evidence in the file was sufficient to convict P.E. for sexual corruption and unlawful entry." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "49. At the date when the abuse against the first applicant occurred, the relevant provisions of the Criminal Code read as follows:", "Article 197 Rape", "“(1) Sexual intercourse with a female through coercion or taking advantage of her incapability of defending herself or of expressing her will, is punishable by three to ten years of imprisonment.", "(2) The sentence will be from five to fifteen years if:", "(a) the act was committed by two or more than two persons together; ...", "(3) The sentence will be from ten to twenty years if the victim is not yet fourteen years old ...”", "Article 198 Sexual intercourse with a minor female", "“(1) Sexual intercourse with a female who has not yet reached fourteen years of age is punishable by imprisonment of from one to five years.”", "Article 200 Sexual intercourse between persons of the same sex", "“(1) Sexual intercourse between persons of the same sex, carried out in public or which causes a public scandal, is punishable by imprisonment of between one and five years.", "(2) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of between two and seven years and loss of certain rights.", "(3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing his or her will, or which is performed through coercion, is punishable by imprisonment of between three and ten years and loss of certain rights.”", "Article 201 Sexual perversion", "“(1) Acts of sexual perversion committed in public which cause a public scandal are punishable by imprisonment from one to five years.”", "Article 202 Sexual corruption", "“(1) Acts of an obscene nature committed to a minor or in his or her presence are punishable by imprisonment from three months to two years or by a fine.”", "50. Articles 197 and 198 have been amended successively in order to recognise males as potential victims of rape and statutory rape, by Law no. 197/2000, which entered into force on 15 November 2000 and by Emergency Ordinance no. 89/2001, which entered into force on 26 June 2001. The latter Ordinance also decriminalised consenting same sex intercourse.", "51. On 28 September 1990 Romania ratified the United Nations Convention on the Rights of the Child (“the CRC”), in force since 2 September 1990. The CRC stipulates that the best interests of the child and his or her dignity shall be a primary consideration in all actions concerning children (Article 3).", "52. The CRC urges Member States to take all appropriate measures to protect children from all forms of violence, including sexual abuse, and to provide for the recovery and social reintegration of victims. The relevant articles read as follows:", "Article 19", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "Article 34", "“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:", "(a) The inducement or coercion of a child to engage in any unlawful sexual activity;”", "Article 39", "“States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”", "53. The Committee on the Rights of the Child interpreted the text of the CRC in its General comments. Its latest General comment no. 13 (2011) on the right of the child to freedom from all forms of violence is aimed at guiding State parties in understanding their obligations under Article 19 of the CRC, building on existing documents and reflecting on the evolution of the protection in question. The Committee acknowledged the efforts of the States to prevent and respond to violence. It nevertheless found that the States were lagging behind in their obligations:", "“§ 12 ...In spite of these efforts, existing initiatives are in general insufficient. Legal frameworks in a majority of States still fail to prohibit all forms of violence against children, and where laws are in place, their enforcement is often inadequate.”", "The Committee expresses the view that States are under a “strict obligation” to undertake all appropriate measures to fully implement this right for all children (paragraph 37 of the General comment). Among the State obligations, the Committee identified the need to: review and amend domestic legislation in line with Article 19 of the CRC; ensure protection to child victims and effective access to redress and reparation; enforce law in a child-friendly way; and provide for counselling support (paragraphs 41-44 of the General comment).", "The Committee develops further on the content of the “protective measures”, stressing the importance of prevention, the need for an easily accessible report mechanism, the importance of rigorous and child-sensitive investigation and of effective and child-friendly justice where due process must be respected (in particular paragraphs 45-58 of the General comment).", "54. On 25 October 2007 the Council of Europe, recognising that the well-being and best interests of children are fundamental values shared by all member States, adopted the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse urging the Member States to adopt measures to protect children from any form of abuse and to put in place a system capable of punishing any such acts.", "On 17 May 2011 the respondent State ratified that Convention which entered into force in respect of Romania on 1 September 2011.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "55. The first applicant complained under Articles 3 and 8 of the Convention about the violence and sexual abuse he was subjected to by P.E. with the help of S.P. and L.I.D. Both applicants complained under Article 8 that P.E. destroyed their home and family and that they had been forced to leave town after the events in order to reconstruct a normal life.", "56. Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "57. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "58. The Government averred that the applicants’ complaint under Article 8 refers only to the fact that the alleged perpetrators had been acquitted and that the applicants had been forced to leave town in order to protect the first applicant after the incidents. In their view, these aspects should not fall within the realm of Article 8 of the Convention and in any case the applicants could not be considered victims of a violation of that Article. They put forward that the applicants had chosen to leave and had not been forced to do so by the authorities; the applicants had also waited for nine months after the end of the proceedings and almost seven years after the events before they had actually moved. The Government also pointed out that the applicants had failed to complain to the authorities about any impact on their private and family lives of the allegedly ineffective investigation.", "59. The applicants contested those arguments.", "60. The Court notes that the second applicant only complains about the fact that he and his family had been forced to leave town after the events. These allegations are also raised by the first applicant in his complaint under Article 8. However, there is no indication in the file that the authorities had in any way contributed to that departure. Furthermore, the applicants had not complained as such to the authorities about the fact that they had had to leave town.", "It follows that this part of the complaint raised by the first applicant and the whole complaint raised by the second applicant are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "61. Furthermore, the Court notes that the first applicant complained about ill-treatment inflicted by a third party. At no point did he claim that State officials had been involved in the actual abuse.", "It follows that, as far as the complaint concerns the material aspects of Article 3 of the Convention, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.", "62. Lastly, the Court considers that in so far as it concerns the effectiveness of the investigations and their impact on the first applicant’s family life, the remainder of the complaint raised by the first applicant under Articles 3 and 8 of the Convention is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ positions", "63. The first applicant pointed out that abuse such as that he had suffered had been qualified by the Court as torture. He made reference to the case of Aydın v. Turkey (25 September 1997, Reports of Judgments and Decisions 1997 ‑ VI), where the victim had been in detention. As for the proceedings in the case at hand, he argued that the investigation had been neither prompt nor effective, that the prosecutor had waited for three weeks before opening the investigation and for two months to question P.E. He also contended that some essential investigative steps had not been taken by the police, in particular the taking of DNA samples from the applicants’ flat, from the accused persons and from the dog; while some measures had been overemphasised, despite their limited relevance to the facts. The first applicant also complained about the manner in which the courts had weighted the evidence, pointing out, in particular, that the courts had discarded the direct evidence proving P.E.’s guilt (polygraph test, police line up, first medical certificates) while favouring later expert evaluations of the victim and blaming the parents for not having reacted sooner.", "64. Lastly, the first applicant complained that the legal classification given to the facts by the domestic courts contradicted the Convention requirements and had only been made possible because there had been no adequate legislation to deal with rape of boys at that time.", "65. The Government contended that the authorities had had a difficult task in establishing the facts of the case, given the conflicting statements made by the victim, his family and the witnesses throughout the proceedings. In their view, the investigation had been prompt, thorough and rapid and the mere fact that a conviction had not been secured did not render the investigation ineffective. They considered that it had taken the victim’s family too long to react despite the fact that there had been visible signs of abuse. That attitude was, in their view, inexplicable, especially since the child had not had any social problems before the incidents.", "66. The Government also pointed out that the obligation imposed on the States under the procedural head of Article 3 was not an obligation of result but one of means.", "67. As far as Article 8 is concerned, the Government contended that, in the context of the case and given the way the applicants phrased their complaint, it would be difficult to identify a negative or positive obligation incumbent on the State.", "2. The Court’s appreciation", "(a) General principles", "68. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003 ‑ XII).", "69. Furthermore, the absence of any direct State responsibility for acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from all obligations under this provision. In such cases, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill-treatment even if such treatment has been inflicted by private individuals (see M.C., cited above, § 151, and Denis Vasilyev v. Russia, no. 32704/04, §§ 98-99, 17 December 2009).", "70. Even though the scope of the State’s positive obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context. In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements and to the length of time taken for the initial investigation (see Denis Vasilyev, cited above, § 100 with further references; and Stoica v. Romania, no. 42722/02, § 67, 4 March 2008).", "71. Furthermore, positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State’s margin of appreciation, effective deterrence against serious acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see M.C., cited above, § 150).", "72. The Court reiterates that it has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard the individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see M.C., cited above, § 152).", "Lastly, the Court notes that the United Nations Committee on the Rights of the Child has emphasised that a series of measures must be put in place so as to protect children from all forms of violence which includes prevention, redress and reparation (see paragraphs 52 ‑ 53 above).", "(b) Application of those principles to the case under examination", "73. On the facts of the case, the Court notes at the outset that the acts of violence suffered by the first applicant and not contested by the Government undoubtedly meet the threshold of Article 3. The State’s positive obligations were thus called into action.", "74. The Court notes with concern that despite the gravity of the allegations and the particular vulnerability of the victim, the investigations did not start promptly. Indeed, it took the authorities three weeks from the date the complaint had been lodged, to order the medical examination of the victim and almost two months to question the main suspect. The investigation took five years and the applicants’ repeated complaints about its length were unsuccessful. The County Court acknowledged the significant lapse of time, but drew no inference from it.", "Furthermore, the Court notes that for almost three years no significant investigative steps were taken after the prosecutor’s first decision not to prosecute (16 June 2000), despite the repeated hierarchical instructions to continue the investigations.", "75. At the end of the criminal proceedings, some seven years after the date of the alleged facts, the accused person was exonerated. Nothing in the file indicates that the authorities tried to find out if somebody else could be held criminally responsible for these serious crimes. This raises doubts as to the effectiveness of the proceedings, in particular in such a sensitive case as that involving the violent sexual abuse of a minor (see, mutatis mutandis, Stoica, cited above, § 77).", "76. The Court has found no indication of arbitrariness in the way the courts classified the facts in law. Indeed, in application of the principle of the more lenient criminal law, the rape of male juveniles was not criminally punishable at the time, as males were not recognised as potential victims of rape until 15 November 2000 and as in 2001 Article 200, which prohibited sexual intercourse with a person of the same sex, including through coercion, was abolished (see paragraphs 49 and 50 above). Before the scope of the protection against rape was extended to potential male victims, the system allowed nevertheless for those acts to be reprimanded in the context of other crimes, such as the ones invoked in the case under examination.", "The Court notes that the respondent State’s legislation currently protects all persons, including male and female juveniles, against rape, including statutory rape. It also notes that Romania has ratified the CRC and the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (see paragraphs 51-54 above) which provide obligations for the Member States to protect children against any form of abuse.", "77. As for the proceedings in the case at hand, the Court reiterates that it is not concerned with allegations of errors or isolated omissions in the investigation; that it cannot replace the domestic authorities in the assessment of the facts of the case; and that it cannot decide on the alleged perpetrators’ criminal responsibility (see M.C., cited above, § 168). In similar cases, the Court has expressed the opinion that it was for the authorities to explore all the facts and decide on the basis of an assessment of all the surrounding circumstances (see M.C., cited above, § 181).", "78. Notwithstanding its subsidiary role in the matter, the Court is particularly concerned that the authorities did not try to weigh up the conflicting evidence and made no consistent efforts to establish the facts by engaging in a context-sensitive assessment (see M.C., cited above, § 177). The Court emphasises that investigation has to be rigorous and child ‑ sensitive in case involving violence against a minor.", "79. The Court cannot but note that while the authorities adopted a lax attitude concerning the length of the investigation, the domestic courts attached significant weight to the fact that the family did not report the alleged crimes immediately to the police and that, to a certain extent, the victim did not react sooner (see paragraph 47 above).", "80. The Government also evoked the parents’ alleged negligence in spotting and reporting the abuse in good time. Even if - with hindsight - it might have been advisable for the parents to take prompt action when they noticed the first changes in the behaviour of the first applicant and the blood in his underpants, the Court fails to see how this could have had a major impact on the diligence of the police in their response to the reported facts. Neither can the Court understand why the domestic courts have attached such a significant weight to that fact.", "81. Concerning notably the weight attached to the victim’s reaction, the Court considers that the authorities were not mindful of the particular vulnerability of young people and the special psychological factors involved in cases concerning violent sexual abuse of minors, particularities which could have explained the victim’s hesitations both in reporting the abuse and in his descriptions of the facts (see M.C., cited above, § 183).", "82. The Court points out that the obligations incurred by the State under Articles 3 and 8 of the Convention in cases such as this require that the best interests of the child be respected. The right to human dignity and psychological integrity requires particular attention where a child is the victim of violence (see, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III). The Court regrets that the first applicant was never offered counselling and was not accompanied by a qualified psychologist during the proceedings or afterwards. The only mention of such support is from the school counsellor, who suggested that it would be better if the family moved away. Bearing in mind the positive obligations that the Respondent State has assumed under the various international instruments protecting the rights of child, this cannot be considered to constitute an adequate measure for “recovery and reintegration”.", "83. The failure to adequately respond to the allegations of child abuse in this case raises doubts as to the effectiveness of the system put in place by the State in accordance with its international obligations and leaves the criminal proceedings in the case devoid of meaning.", "The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to meet their positive obligations to conduct an effective investigation into the allegations of violent sexual abuse and to ensure adequate protection of the first applicant’s private and family life.", "There has accordingly been a violation of Articles 3 and 8 of the Convention in respect of the first applicant.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "84. The first applicant complained about the length and outcome of the investigation and of the criminal proceedings. He relied on Article 6 of the Convention.", "85. Both parties presented observations on the matter.", "86. Having regard to the finding relating to Articles 3 and 8 (see paragraph 70 above), the Court considers that this complaint is admissible, but that it is not necessary to examine whether, in this case, there has been a violation of Article 6 (see, among other authorities, Bota v. Romania, no. 16382/03, § 59, 4 November 2008).", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "87. Lastly, the first applicant complained, under Article 2 of the Convention, that P.E. had threatened to kill him if he told anyone about the abuse and under Article 5 of the Convention that P.E. had deprived him of his liberty.", "88. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "89. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "90. The applicants claimed 1,000,000 euros (EUR) in respect of non ‑ pecuniary damage suffered by the first applicant.", "91. The Government argued that there was no causal link between the alleged violation and the amount sought and that the applicants’ claims were in any case exaggerated. Lastly, they suggested that a finding of a violation would constitute just satisfaction in the case.", "92. The Court acknowledges that the first applicant must have suffered hardship and distress because of the ineffective investigation and the interference with the normal course of his private and family life. It therefore awards the first applicant EUR 15,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "93. The applicants did not make a claim under this head.", "C. Default interest", "94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1993 and 1974 respectively and live in Lublin.", "6. On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in Lublin. She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant’s parents.", "7. Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no. 4 in Lublin, accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14 April 2008.", "8. The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education.", "9. On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator’s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance.", "10. On 20 May 2008 the District Prosecutor, referring to section 4 (a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (“the 1993 Act”) (see paragraph 54 below) issued a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age.", "A. Attempts to obtain an abortion in Lublin hospitals", "11. The second applicant went to the Ministry of Internal Affairs and Administration Hospital in Lublin to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary.", "12. The second applicant also went to another public hospital in Lublin (the Jan Boży hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused.", "13. The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to “get her daughter married”. She left his office, but returned shortly afterwards as she was afraid that without the doctor’s referral it would not be possible to obtain an abortion. He told her to report to the Jan Boży hospital.", "14. On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital.", "15. On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2 June. She then called the second applicant separately to her office and asked her to sign the following statement: “ I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter’s death .” On the same day the first applicant was discharged from the hospital for the weekend.", "16. On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working.", "17. The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it.", "18. The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest.", "19. During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest.", "20. When the second applicant arrived later, the priest spoke to her. She told him that it was the family’s decision to terminate the pregnancy. Dr W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby.", "21. Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion.", "22. The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning ( Federacja na rzecz Kobiet i Planowania Rodziny - hereinafter, “the Federation”) in Warsaw for help, as after their experience in Lublin she was afraid that no one in that town would perform an abortion.", "23. On an unspecified date the Jan Boży hospital issued a press release to the effect that it would not perform an abortion in the applicants’ case. Journalists who contacted the hospital were informed of the circumstances of the case.", "24. The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet.", "B. Attempts to obtain an abortion in Warsaw", "25. On 3 June 2008 the applicants went to Warsaw and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in Warsaw. She submitted to the hospital the certificate issued by the prosecutor (see paragraph 10 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the Lublin hospital that the first applicant did not wish to have an abortion.", "26. On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the Warsaw hospital later in the day together with Ms H.W., an anti ‑ abortion activist. They were allowed to see the first applicant. They talked to her in her mother’s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her.", "27. On the same day the first applicant’s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant’s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant’s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion.", "28. On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station.", "C. The first applicant’s placement in a juvenile shelter", "29. At the police station the applicants were questioned on the same day, from approximately 4 p.m. until 10 p.m. No food was offered to them. The officers showed the applicants the family court decision which the police had received by fax at about 7 p.m. from the Warsaw hospital. That decision, given by the Lublin Family Court, restricted the second applicant’s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below).", "30. Subsequently the police took the first applicant to a car. She was driven around Warsaw in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to Lublin, where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6 June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother’s home run by the Catholic church.", "31. A psychologist and an education specialist talked to her. She summarised the conversation thus:", "“They wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.”", "32. Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Boży hospital in Lublin. She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her.", "D. Proceedings before the Family and Custody Court", "33. On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a non ‑ identified authority, apparently a court supervisor ( kurator ), also on 3 June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights.", "In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother’s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist.", "Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor’s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene.", "34. On the same date that court, sitting in camera, ordered the first applicant’s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant’s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Boży hospital, which had refused to carry out an abortion having regard to the first applicant’s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to Warsaw with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article 109 para 1 (5) of the Family Code.", "35. On 6 June 2008 the second applicant appealed against that decision. On 9 June 2008 she filed with the court a written consent to her daughter’s abortion, which she also submitted to the Lublin hospital. On 10 June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it.", "36. On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant’s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14 June 2008 she was discharged from the hospital.", "37. On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant’s placement in the shelter.", "38. On 18 February 2009 the Lublin Family and Custody Court, relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant’s parents of their parental rights. It discontinued the proceedings.", "E. The applicants’ contact with the Ministry of Health", "39. Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor’s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised.", "40. On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gdańsk, in northern Poland, approximately 500 kilometers from their home in Lublin.", "41. On 17 June 2008 the Ministry of Health sent a car for the applicants and they were driven to Gdańsk. The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to Gdansk and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gdańsk had been put on the Internet by the Catholic Information Agency that day at 9 a.m.", "F. Various sets of criminal proceedings", "1. Against the first applicant", "42. On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 § 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25 September 2008.", "43. On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator.", "2. Against the perpetrator of the alleged rape", "44. On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10 June 2011.", "3. Against the second applicant, the first applicant’s father and two other persons", "45. On 14 July 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings against the second applicant, the first applicant’s father, Mrs W. N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the Warsaw hospital, that she had a right to a lawful abortion.", "4. Against other persons", "46. A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and Warsaw, Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used.", "47. The second applicant appealed against that decision.", "5. Against Ms H.W. and Mr M.N.-K.", "48. On 21 November 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in Warsaw on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19 September 2009 the Warsaw ‑ Śródmieście District Court dismissed the applicants’ appeal.", "6. Against the police officers", "49. On 17 September 2009 the Warsaw-Śródmieście District Court dismissed the first applicant’s appeal against a decision given on 26 May 2009 by the Warsaw-Sródmieście District Prosecutor to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer.", "7. Against various persons on charges of disclosure of confidential information", "50. On 31 October 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants’ personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the Warsaw hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31 March 2009 the Lublin Regional Court dismissed the appeal, finding that the prosecutor’s decision was lawful and correct.", "51. On 12 November 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, ²by the director of the hospital who had spoken to the press about the applicants’ case and by priest K.P. The applicants appealed submitting that information about the applicants’ situation had been disclosed to the general public.", "On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "52. The applicable provisions of domestic law are extensively summarised in the judgments of Tysiąc v. Poland, no. 5410/03, 20 March 2007, and R.R. v. Poland, no. 27617/04, 26 May 2011.", "53. In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time: “every human being shall have an inherent right to life from the moment of conception”.", "54. Section 4(a) of the 1993 Act reads, in its relevant part:", "“1. An abortion can be carried out only by a physician and where", "1) pregnancy endangers the mother’s life or health;", "2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life ‑ threatening ailment;", "3) there are strong grounds for believing that the pregnancy is the result of a criminal act.", "2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy.", "3. In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital.", "...", "5. The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor.. ”", "THE LAW", "I. THIRD PARTIES’ SUBMISSIONS", "55. The Court will first set out the submissions received from the third parties who were granted leave to intervene in the case. It will then examine the admissibility and merits of the applicants’ complaints under Articles 3 and 8 of the Convention.", "A. The Polish Helsinki Foundation for Human Rights", "56. In cases of sexual violence against women and girls, distress suffered by the victims is exacerbated by the risk of unwanted pregnancy or by actual pregnancy resulting from rape. A denial of timely access to necessary medical treatment for female victims of sexual assault, including legal abortion, exposes them to additional suffering and may constitute an act of inhuman or degrading treatment. The distress of a female victim of rape may also be amplified by the unauthorised release of confidential information concerning a rape-induced pregnancy.", "57. In the intervenor’s view, it is the State’s obligation, stemming from Article 3 of the Convention, to adopt detailed guidelines for the criminal justice system and health-care practitioners in order to prevent additional suffering for the victim. Therefore, developing a specialised procedure regulating conduct towards victims of sexual abuse would not only assist in collecting the necessary evidence but also, more importantly, validate and address sexual assault patients’ concerns, minimise the trauma they may experience and promote their healing.", "58. In theory, the 1993 Act grants women a broad array of reproductive health services, for instance, medical, social and legal assistance, easy access to information and pre-natal testing, methods of family planning and oral contraceptives, and the possibility to terminate a pregnancy. However, despite the statutory wording, Polish women and girls face significant barriers when seeking these medical services in practice. Problems with effective access to legal abortion are reflected in governmental statistics on the execution of the Act: the official number of legal abortions carried out in Poland is very low. In 2009 there were only 538 procedures of legal abortion nationwide. In 510 of those cases the termination was caused by embryopathological factors; 27 procedures were conducted in order to protect the life and health of the pregnant woman, and only 1 abortion was carried out on grounds of the registered pregnancy having been caused by a criminal act. No comprehensive analysis has been presented to explain such a small number of abortions. The third party considers the data collected by the Government highly unreliable and doubts whether they reflect the real situation. The data should be seen against the background of police statistics to the effect that 1,816 cases of rape were reported in 2009. The low figures for lawful abortions in connection with the enforcement of the 1993 Act prove only that women find it less complicated to terminate pregnancies illegally than under the provisions of that statute.", "59. Furthermore, in practice the “conscience” clause is often misused. Apart from being used by individual doctors, who fail to refer the patient to another hospital, it is also invoked by entire healthcare facilities, including public ones. Although the problem of such abuse is widely recognised, no effective monitoring mechanism has been put in place to ensure that women’s right to abortion is respected.", "B. The Rule of Law Institute, Lublin, Poland", "60. Issues involving the legal definition of and protection of human life, the determination of the conditions for its acceptable termination, and the understanding of privacy and freedom of conscience are issues of fundamental importance deeply rooted in the culture of each society. The definition of the temporal limits of human life falls within the margin of appreciation of the States Parties. It is not the Court’s task to question the doctors’ and State authorities’ decisions on the acceptability of abortion. It has been acknowledged in the Court’s case-law that the acceptance of termination of pregnancy should be left to decisions given by the democratically elected national authorities. This approach is based on the values underpinning the Convention, such as respect for individual freedom and dignity. Understanding of notions of life and parenthood is so strongly linked to personal freedom and dignity and also to the spiritual values common to the nation that their protection cannot be taken out of the national sphere. In the examination of any case the Court should also have regard to the social and cultural specificity of Poland.", "61. The notion of private life within the meaning of Article 8 of the Convention is not unlimited. Termination of pregnancy cannot be said to belong exclusively to the sphere of the mother’s private life. When a woman becomes pregnant her life becomes closely bound up with the developing child. It is not open to doubt that each decision on abortion is seriously harmful to the mother. It has long-lasting effects on her body and psyche. A woman who has decided to have an abortion for whatever dramatic reason must be treated with the utmost care and protection so as to avoid her dignity being threatened any further. This obligation of assistance rests in particular on the State officials responsible for handling such cases.", "C. The Coram Children’s Legal Centre, London", "62. The unique, special position of children has been expressly recognised in many international human rights instruments. The best interests of the child shall be a primary consideration in proceedings touching on its situation. The best interests of the child can only be assessed properly by reference to the views, wishes and feelings of the child. Failure to establish the child’s views may render any decision as to what those best interests are, and how they are best met, unsafe and unlawful. This principle applies irrespective of the type of decision or subject matter of the decision to be taken and is applicable to judicial decision-making and to administrative proceedings. The United Nations Committee on the Rights of the Child (CRC) has emphasised the need to provide appropriate child-sensitive procedural accommodation to enable children to take part in decision-making and legal proceedings.", "63. The rights protected by Article 8 of the Convention encompass protection of health and other personal information. Children are entitled to the same, if not higher, protection against non ‑ consensual disclosure of their health and other personal information to third parties, in view of their vulnerability. The CRC observed that confidential medical information concerning adolescents may only be disclosed with the consent of the person concerned or in the same situation applied to adults. Confidentiality is essential to promote the use of health services by adolescents. Other international bodies have consistently recognised the need to respect children’s privacy in matters of health as well as when they are victims of crime.", "64. Separation by public authorities amounts to an interference with the family’s rights. While authorities enjoy a wide margin of appreciation in assessing the need to take a child into care, the court must still be satisfied that genuine emergency circumstances existed justifying a child’s abrupt removal from her parents’ care without consultation. The State has the burden of demonstrating that it has engaged in a careful assessment of the impact of the separation on the family and of the available alternatives.", "65. In the context of a child’s placement in a juvenile centre there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention. A care order resulting in placing a child in a locked room in a juvenile shelter can only be made when the child is in such danger that it is impossible for him or her to remain in the family environment. Care orders do not fall into the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 of the Convention.", "D. European Centre for Law and Justice, Strasbourg", "66. The principle of the sanctity of life has been recognised by the Court. The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights. Life is not merely a private good and right; it is also a public good, which explains why it should by protected by criminal law. Moreover, pregnancy does not concern merely the mother’s private life.", "67. The Convention does not formulate any limitations as to the temporal scope of the protection of the right to life; it protects “everyone”. Every human life forms a continuum which begins at conception and advances towards death. Developments in in vitro fertilisation, abortion and euthanasia give rise to situations where the legal protection of life does not coincide with the natural temporal limits of life. The Court has accepted, referring to their margin of appreciation, that States are entitled to determine the moment from which that protection is accorded to a foetus. The Court has also accepted that a foetus belongs to the human race and should be protected as such.", "68. Abortion amounts to an exception or derogation from the principle that human life should be protected. There is no right to abortion as such; it must be regarded only as an exception to the rule. The Convention itself does not guarantee a right to abortion. Its Article 8 does not confer such a right on women. The Convention and its Protocols must be interpreted in the light of present-day conditions; however, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate.", "69. Where a State allows for legal abortion, it remains under a positive obligation to protect life and to strike a balance between competing interests. Such legitimate interests must be taken into account adequately and in accordance with the obligations deriving from the Convention. Making abortion lawful does not exempt the State from its responsibility to limit recourse to it and to restrict its consequences for the exercise of fundamental rights. The fundamental rights to life and to health cannot be put on the same footing as the alleged right to abortion. These rights cannot be balanced against each other. The obligation of the State is even stronger where vulnerable persons are concerned who need to be protected against pressure exerted on them, including by their own family environment. The State should be obliged to help pregnant women respect and nurture life. When a pregnant woman envisages abortion, it is the responsibility of the State to ensure that such a decision has not been taken as a result of external pressure.", "70. Medical professionals are entitled to refuse to provide medical services. This entitlement originates in their moral obligation to refuse to carry out immoral orders. The Court in its case-law has confirmed the supremacy of moral sense over positive law. Respect for the life of a human being underpins the right to conscientious objection in the medical sphere. Medical practitioners should not be obliged to perform abortion, euthanasia or in vitro fertilisation against their will and against their principles. A possible solution for this dilemma would be to establish a register of physicians qualified and willing to perform lawful abortions.", "E. Amnesty International", "71. The United Nations Committee on the Rights of the Child has emphasised most strongly that the term “violence” must not be interpreted in such a way as to minimise the impact of, and the need to address, non ‑ physical and/or non-intentional forms of harm, such as, inter alia, neglect and psychological maltreatment. That Committee defined inhuman or degrading treatment as “violence in all its forms against children in order to extract a confession, [or] to extrajudicially punish children for unlawful or unwanted behaviours”. Unwanted behaviour in this regard may be understood broadly to include a child’s desire to terminate an unwanted pregnancy and to exercise the right to freedom of conscience.", "72. The Inter-American Commission on Human Rights has remarked that victims of sexual violence cannot fully exercise their human rights unless they have access to comprehensive health-care services and information. Providing such care to victims of sexual violence should be treated as a policy priority.", "73. The United Nations Special Rapporteur on Violence against Women has noted that certain violations entail different harms for men and women and therefore require different reparation regimes to remedy the wrongdoing. Unwanted pregnancies are part of this gender-specific harm. Where States fail to take a comprehensive and gender-based approach to remedying sexual violence, this may cause additional suffering.", "74. The United Nations Committee on the Elimination of Discrimination against Women has recommended that States take measures to prevent coercion in regard to fertility and reproduction and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of a lack of appropriate services in regard to fertility control. Denial of available and legal means to prevent or terminate an unwanted pregnancy would constitute coercion.", "75. The Human Rights Committee has pointed out that the extent to which a State provides rape victims with access to safe abortion is of particular relevance to an assessment of that State’s compliance with the prohibition of cruel, inhuman and degrading treatment. Given the fact that the mental distress caused by unwanted pregnancy is likely to grow over time, substantial delay in the provision of voluntary abortion services after rape may cause severe suffering. It is not enough for the State to decriminalise abortion on paper; adequate procedures must be put in place to ensure the provision of legal medical services so that both law and practice are in conformity with the international legal obligations of the State under the UN Convention against Torture.", "76. Unauthorised release of confidential information about patient care and health violates the patient’s right to privacy. It may, in addition, deter women from seeking advice and treatment they need, thereby adversely affecting their health and well-being. The United Nations Committee on the Elimination of Discrimination against Women has held that breaches of confidentiality are particularly likely to render women “less willing to seek medical care ... for incomplete abortion and in cases where they have suffered sexual or physical violence”. Indeed, the general stigma attached to abortion and to sexual violence has been shown to deter women from seeking medical care, causing much distress and suffering, both physically and mentally.", "77. States have an obligation to ensure that their policies favour the best interests of the child, and to give due weight to the views of the child in all matters affecting him or her, in accordance with the age and maturity of the child. The United Nations Committee on the Rights of the Child has clarified that children’s rights to be heard and to have their views given due weight must be respected systematically in all decision-making processes, and their empowerment and participation should be central to child care ‑ giving and protection.", "When medical personnel subjects a child to sustained and aggravated harassment with a view to getting her to continue an unwanted pregnancy she has already and repeatedly asked to terminate, this constitutes mental violence, applied by persons who have power over the child, for the purposes of forcing her to engage in an activity against her will and, potentially, punishing her for unwanted behaviour.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DETERMINATION OF ACCESS TO LAWFUL ABORTION", "78. The applicants complained that the facts of the case gave rise to a breach of Article 8 of the Convention. They submitted that their right to due respect for their private and family life and for the first applicant’s physical and moral integrity had been violated by the absence of a comprehensive legal framework guaranteeing her timely and unhindered access to abortion under the conditions set out by the applicable laws.", "Article 8 of the Convention, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The first applicant’s status as a victim", "79. The Government submitted that the first applicant could not claim to be the victim of a breach of the Convention. The national authorities had fulfilled their positive obligation of not only ensuring a legal framework for carrying out an abortion, but, first and foremost, of guaranteeing effective measures leading to the implementation of that right. Therefore, the procedures applied by the national authorities had to be recognised as guaranteeing rights which were not only theoretical or illusory, but also practical and effective, and thus met the standards laid down in the Convention and the Court’s case ‑ law.", "80. The applicants submitted that the first applicant remained a victim of a breach of Article 8 of the Convention, despite ultimately, after long and protracted efforts, having undergone an abortion. The applicants had never claimed that the first applicant’s rights had been violated because she had not been allowed access to an abortion. The core of her complaint was that the State’s actions and systemic failures in connection with the circumstances concerning the determination of her access to abortion, seen as a whole, as well as the clandestine nature of the abortion, had resulted in a violation of Article 8.", "81. The unwillingness of numerous doctors to provide a referral for abortion or to carry out the lawful abortion as such constituted evidence of the State’s failure to enforce its own laws and to regulate the practice of conscientious objection. Both applicants had been misled by the doctors and the authorities as to the applicable procedure and requirements for lawful abortion. The first applicant had been given unwanted counselling by a priest, harassed by doctors and bullied by persons informed of her situation by the doctors and the priest. She had also been unlawfully torn from her mother’s custody and put into detention. When she had finally been allowed to obtain the abortion that she lawfully sought, that abortion had been performed in a clandestine manner, in a hospital five hundred kilometres from her home town.", "82. The State had failed to take appropriate measures to address the systemic and deliberate violations which had breached the applicants’ right to respect for their private life. The set of circumstances surrounding the applicants’ efforts to secure a lawful abortion for the first applicant had not been remedied by the fact that she had ultimately obtained it. The first applicant had not lost her victim status because the State had not acknowledged any of the alleged violations, nor had it provided redress.", "83. The Court observes that the scope of the present complaint is not limited to the mere question of access to abortion: the applicants neither challenged the Polish abortion legislation as such nor complained that the first applicant had been denied access to an abortion. Rather, the Court’s task is to examine the issues arising in connection with the procedural and practical modalities for the determination of the lawfulness of such access and, in particular, whether due regard for the applicants’ right to respect for their private and family life was had by the authorities throughout the events concerned. The fact that the first applicant ultimately obtained access to an abortion does not, by itself, deprive the applicants of their status of victims of the alleged breach of the Convention. To that extent the Government’s preliminary objection must therefore be dismissed.", "84. The Court considers that the issue of the applicants’ status as victims of the alleged violation of the Convention is closely linked to the substance of their complaint under Article 8 of the Convention, and should be joined to the merits of the case.", "2. Exhaustion of domestic remedies", "85. The Government submitted that the applicants had failed to exhaust relevant domestic remedies. The Polish legal system provided for legal avenues which made it possible by means of civil compensation claims under Articles 417, 444 and 448 of the Civil Code, or Articles 23 and 24 of that Code, to establish liability on the part of the doctors concerned for any damage caused by medical malpractice. The Government referred to judgments given by the Supreme Court in the cases of V CK 167/03 and V CJ 161/05, given on 21 November 2003 and 13 October 2005 respectively.", "86. The applicants submitted that they had had no legal means at their disposal in order to challenge the individual doctors or the decisions made by the hospital. Likewise, no remedy had been available to them in order to contest the failure to provide them with appropriate information in respect of the determination of access to abortion. The applicants had exhausted all possible effective domestic criminal-law remedies. Given the intentional nature of the acts and omissions by the State in this case, and the resulting serious impact on the applicants’ personal integrity and fundamental values, the remedy most appropriate in the circumstances of this case was a criminal ‑ law remedy (see M.C. v. Bulgaria, no. 39272/98, §§ 148 ‑ 53, ECHR 2003-XII, and X and Y v. the Netherlands, cited above, §§ 23-24).", "87. The first applicant submitted that civil proceedings in this case would not have provided her with sufficient and effective remedies to vindicate her right to respect for her private life. She was a young and vulnerable rape victim, whose identity would have been disclosed to the public during civil proceedings. This would have resulted in double victimisation. She had been in a weak position and completely dependent on the doctors. The Court in M.C. v. Bulgaria stressed that “[children and other vulnerable individuals, in particular, are entitled to effective [criminal-law] protection.” ( M.C. v. Bulgaria, cited above, § 150). Applicants should therefore not be required, in the absence of a successful criminal prosecution, to obtain redress by bringing a civil action for damages.", "88. The Court considers that the Government’s objection concerning the alleged failure to exhaust domestic remedies by way of pursuing a compensation claim before the civil courts in respect of this part of the application is closely linked to the substance of the applicants’ complaints under Article 8 of the Convention, and should therefore be joined to the merits of the case.", "89. The Court further notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "90. The Government submitted that decisions concerning the carrying out of abortions belonged to the sphere of private, not family, life. Hence, solely women were able to make the relevant decisions, within the limits set by the national legal framework. They referred to the case of Boso v. Italy, where the Court had held that Article 8 of the Convention did not give a potential father any right to participate in the decision-making as to whether or not to carry out an abortion (see Boso v. Italy (dec.), no. 50490/99, 5 September 2002). Therefore this provision could not be regarded as conferring such a right on the mother of the woman seeking an abortion.", "91. The fact that at the material time the first applicant was a minor did not confer on her mother, the second applicant, any rights under Article 8 of the Convention. While parental authority was a necessary element of family life, the scope and imperative nature of parental authority changed as the child developed and the functioning of the family had to be subordinated to the child’s interests. Therefore, there had been no violation of the second applicant’s rights guaranteed by Article 8 of the Convention.", "92. As regards the second applicant, the Government argued that the instant case differed fundamentally from the case of Tysiąc v. Poland, because ultimately the applicant had had access to an abortion within the time ‑ limit provided for by the statute. The legal conditions for a lawful abortion had existed in the present case and there had never been any dispute between the first applicant and the doctors whether the conditions for a legal abortion obtained. The refusal to perform an abortion at the Lublin hospital had resulted from the statutory right of a doctor to refrain from performing medical services contrary to his or her conscience, the so-called “conscience clause” provided for under Article 39 of the Doctor and Dentist Professions Act. That Act obliged a doctor to refer the patient to another physician. The doctors in that hospital had failed to refer the applicants to another medical practitioner, but that had not been to the first applicant’s detriment because she had ultimately obtained access to an abortion in a public hospital within the time limit provided for by law. Hence, it could not be said that in the circumstances of the present case there had been no procedural mechanism available with a view to determining access to a lawful abortion.", "93. The applicants submitted that the absence of a comprehensive legal framework governing the practice of conscientious objection and ensuring access to lawful termination of pregnancy in medical facilities had allowed the doctors to deny the first applicant her right to terminate her pregnancy in a respectful, dignified and timely manner. The applicants had been given contradictory and inaccurate information about the legal conditions that had to be met to obtain a lawful abortion (the waiting time, the necessary documents, the formal requirements which such documents had to meet, the necessity for parental consent by both parents). They had thus been hindered in taking a free decision on the matter of an abortion.", "2. The Court’s assessment", "(a) General principles", "94. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to the Court’s settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see, among other authorities, Olsson v. Sweden (No. 1), 24 March 1988, § 67, Series A no. 130).", "95. In addition, there may also be positive obligations inherent in effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91).", "96. The Court has previously found States to be under a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, among many other authorities, Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-...; Carlo Dossi and others v. Italy, (dec.), no. 26053/07, 12 October 2010; Yardımcı v. Turkey, no. 25266/05, 5 January 2010; §§ 55-56; Gecekuşu v. Turkey (dec.), no. 28870/05, 25 May 2010). These obligations may involve the adoption of measures including the provision of an effective and accessible means of protecting the right to respect for private life (see, among other authorities, McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X).", "While the Court has held that Article 8 cannot be interpreted as conferring a right to abortion, it has found that the prohibition of abortion when sought for reasons of health and/or well ‑ being falls within the scope of the right to respect for one’s private life and accordingly of Article 8 (see A, B and C v. Ireland [GC], no. 25579/05, § 245, 16 December 2010, § 214). In particular, the Court held in this context that the State’s obligations include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures ( Tysiąc v. Poland, cited above, § 110; A, B and C v. Ireland [GC], cited above, § 245; and R.R. v. Poland, cited above, § 184).", "97. The Court has already found that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion (see ( A, B and C v. Ireland [GC], cited above, §§ 235 and 237). In the absence of such a common approach regarding the beginning of life, the examination of national legal solutions as applied to the circumstances of individual cases is of particular importance for the assessment of whether a fair balance between individual rights and the public interest has been maintained (see also, for such an approach, A, B and C v. Ireland, cited above, § 229-241).", "98. Since the nature of the right to decide on the termination of a pregnancy is not absolute, the Court is of the view that the circumstances of the present case are more appropriately examined from the standpoint of the respondent State’s positive obligations arising under Article 8 of the Convention (see, mutatis mutandis, Tysiąc v. Poland, cited above, § 108).", "99. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). The Court has already found in the context of similar cases against Poland that once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion ( Tysiąc v. Poland, cited above, § 116 ‑ 124, R.R. v. Poland, cited above, § 200). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” ( A, B and C v. Ireland [GC], cited above, § 249). Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by that provision that the relevant decision ‑ making process is fair and such as to afford due respect for the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case, and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121). The Court has already held that in the context of access to abortion the relevant procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision (see Tysiąc v. Poland, cited above, § 117).", "(b) Application of the principles to the circumstances of the present case", "100. The Court first notes that the 1993 Act provides for the possibility of lawful abortion in certain narrowly defined situations. In its judgments referred to above the Court has already highlighted the importance of procedural safeguards in the context of the implementation of the 1993 Act when it comes to determining whether the conditions for lawful abortion provided for by that Act obtain. It held that Polish law did not contain any effective procedural mechanisms capable of determining whether these conditions were fulfilled in an individual case, either in the context of a dispute between a pregnant woman and doctors as to whether the conditions for lawful abortion on grounds of a threat to the woman’s health were met (see Tysiąc v. Poland, cited above, §§ 119–124), or in the context of possible foetal malformation confirmed by an initial diagnosis (see R.R. v. Poland, cited above, § 200 and 207).", "The present case differs from those two cases in that it concerns an unwanted pregnancy resulting from rape. Under Article 4 (a) 1 (5) of the 1993 Act abortion can lawfully be carried out where there are strong grounds for believing that the pregnancy was the result of a criminal act, certified by a prosecutor.", "101. The Court now has to examine how the legal framework was applied to the applicants’ case.", "102. In this connection, the Court observes that the first applicant received from the public prosecutor the certificate referred to above (see paragraph 10 above). However, the applicants contacted public hospitals in Lublin considerable difficulties arose in obtaining access to an abortion. They received contradictory information as to whether they needed a referral in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with. Ultimately, after an argument with the second applicant, a head of the gynaecological ward at the Lublin Jan Boży hospital refused to allow the abortion to be performed in her ward, relying on her personal views. The Court notes that the second applicant was requested to sign a consent form to the first applicant’s abortion which warned that the abortion could lead to her daughter’s death (see paragraph 15 above). No cogent reasons have been advanced to show that there were special grounds on which in the circumstances of the case an abortion could entail such danger.", "103. The applicants subsequently travelled to Warsaw, where the first applicant was admitted to another hospital. She was told there that she could have an abortion on the basis of the certificate issued by the prosecutor (see paragraph 10 above) and a medical certificate issued by the national consultant in gynaecology to the effect that she had a right to an abortion. However, the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. A psychologist spoke with the first applicant’s parents and with the first applicant. She apparently prepared an opinion on the case, to which the second applicant was not allowed access. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital had received numerous e-mails from persons criticising the applicants for the decision to have an abortion.", "104. Further, when the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, a Ministry official told her that the daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant told him that that statement had in fact been signed in the presence of three witnesses, he informed her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised.", "105. Ultimately, the applicants were notified by the Ministry of Health that to have an abortion the first applicant would have to go to a public hospital in Gdansk. The Court notes that that hospital was approximately 500 kilometres from the applicant’s home. The Court fails to see any justification for such an arrangement in respect of the provision of a lawful medical service. It has not been argued, let alone shown, that such a service was not available in a medical establishment closer to the applicants’ normal address.", "106. In so far as the Government referred in their submissions to the right of physicians to refuse certain services on grounds of conscience, relying on Article 9 of the Convention, the Court reiterates that the word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief (see, among many other authorities, Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation (see R.R. v. Poland, cited above, no. 27617/04, § 206).", "107. In this connection, the Court notes that Polish law has acknowledged the need to ensure that doctors are not obliged to carry out services to which they object, and put in place a mechanism by which such a refusal can be expressed. This mechanism also includes elements allowing the right to conscientious objection to be reconciled with the patient’s interests, by making it mandatory for such refusals to be made in writing and included in the patient’s medical record and, above all, by imposing on the doctor an obligation to refer the patient to another physician competent to carry out the same service. However, it has not been shown that these procedural requirements were complied with in the present case or that the applicable laws governing the exercise of medical professions were duly respected.", "108. On the whole, the Court finds that the staff involved in the applicants’ case did not consider themselves obliged to carry out the abortion expressly requested by the applicants on the strength of the certificate issued by the prosecutor. The events surrounding the determination of the first applicant’s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness.", "109. As to the second applicant, the Court is fully aware that the issues involved for her in the case were different from those of the first applicant. The Court acknowledges that in a situation of unwanted pregnancy the mother of a minor girl is not affected in the same way. It is of the view that legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere. This consideration applies also in a situation where abortion is envisaged as a possible option. However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter. Hence, the difference in the situation of a pregnant minor and that of her parents does not obviate the need for a procedure for the determination of access to a lawful abortion whereby both parties can be heard and their views fully and objectively considered, including, if necessary, the provision of a mechanism for counselling and reconciling conflicting views in favour of the best interest of the minor. It has not been shown that the legal setting in Poland allowed for the second applicant’s concerns to be properly addressed in a way that would respect her views and attitudes and to balance them in a fair and respectful manner against the interests of her pregnant daughter in the determination of such access.", "110. In so far as the Government relied on the instruments of civil law as capable of addressing the applicants’ situation, the Court has already held, in the context of the case of Tysiąc v. Poland, cited above, that the provisions of the civil law as applied by the Polish courts did not make available a procedural instrument by which a pregnant woman seeking an abortion could fully vindicate her right to respect for her private life. The civil ‑ law remedy was solely of a retroactive and compensatory character. The Court was of the view that such retrospective measures alone were not sufficient to provide appropriate protection of the personal rights of a pregnant woman in the context of a controversy concerning the determination of access to lawful abortion, and emphasised the vulnerability of the woman’s position in such circumstances (see Tysiąc v. Poland, no. 5410/03, § 125, ECHR 2007 ‑ IV, and R.R. v. Poland, cited above, § 209, ECHR 2011 (extracts)). Given the retrospective nature of compensatory civil law, the Court fails to see any grounds on which to reach a different conclusion in the present case.", "The Court is fully aware of examples from the case ‑ law of the Polish civil courts where damages in tort were awarded to women complaining of a breach of their personal rights in various situations connected with unwanted pregnancies and access to abortion (see R.R. v. Poland, cited above, § 79-80, see also paragraph 52 above). However, in those cases the damage had arisen out of facts posterior to the refusal of abortion. No examples of case ‑ law have been adduced before the Court whereby the civil courts acknowledged and redressed damage caused to a pregnant woman by the anguish, anxiety and suffering entailed by her efforts to obtain access to abortion.", "The Court finds that in the present case civil litigation did not constitute an effective and accessible procedure allowing the applicants to vindicate their rights in the context of the determination of access to a lawful abortion. The Court therefore dismisses the Government’s preliminary objection concerning civil litigation as an effective remedy.", "111. The Court is of the view that effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent ( Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I; R.R. v. Poland, cited above, § 180). The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. The uncertainty which arose in the present case despite a background of circumstances in which under Article 4 (a) 1.5 of the 1993 Family Planning Act there was a right to lawful abortion resulted in a striking discordance between the theoretical right to such an abortion on the grounds referred to in that provision and the reality of its practical implementation ( Christine Goodwin v. the United Kingdom [GC], cited above, §§ 77-78; S.H. and Others v. Austria, cited above, § 74, mutatis mutandis; and A, B and C v. Ireland [GC], cited above).", "112. Having regard to the circumstances of the case, the Court concludes that the authorities failed to comply with their positive obligation to secure to the applicants effective respect for their private life. There has therefore been a breach of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DISCLOSURE OF THE APPLICANTS’ PERSONAL AND MEDICAL DATA", "113. The applicants complained that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning their case to the general public.", "A. Admissibility", "114. The Government submitted that the applicants should have had recourse to civil litigation against the persons involved in their case, claiming a breach of their personal rights within the meaning of Articles 23 and 24 of the Civil Code.", "115. The applicants argued that there were no effective remedies in Poland for the violations complained of. Where criminal law could be used, such measures had been resorted to in the present case, but to no avail. Civil litigation would have led to the subsequent disclosure of the applicants’ identities and to further victimisation. It should not be overlooked that all the criminal proceedings instituted at the applicants’ request against various persons had eventually been discontinued. In any event, the applicants had not known the identity and addresses of the perpetrators of certain of the offences concerned. As under the Polish law names and addresses of defendants were necessary in order to bring a civil case before the civil court, the applicants had not been in a position to pursue civil litigation. As a result, the applicants’ rights could not be vindicated under the civil law. It was the responsibility of the State to establish the identity of the perpetrators of any criminal offences.", "116. The aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts (see, among many other authorities, Egmez v. Cyprus, no. 30873/96, § 64, ECHR 2000-XII). Where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant’s position so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see, among many other authorities, Wiktorko v. Poland, no. 14612/02, § 36, 31 March 2009, and Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5 July 2005). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports 1998-VIII; Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III; and Günaydin v. Turkey (dec.), no. 27526/95, 25 April 2002).", "117. The Court notes that the applicants complained to the prosecution authorities, which opened criminal investigations into a number of alleged offences, including two sets of investigations concerning specifically the allegations of disclosure of information about the case to the general public (see paragraphs 50 ‑ 51 above). The Court does not find the applicants’ choice of procedure unreasonable. The applicants tried to have the persons they believed to be guilty of criminal conduct towards them identified and punished. The authorities found that the persons concerned had no case to answer. In particular, the Lublin District Court considered it normal that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations (see paragraph 51 above). Having regard to the fact that the applicants’ efforts to have the disclosure of their personal information examined in criminal proceedings were unsuccessful, the Court considers that the applicants could not be required to embark on civil proceedings which, in the light of the findings made by the authorities, did not offer good prospects of the authorities finding that the conduct complained of was unlawful within the civil sense of that term.", "118. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies.", "119. The Court also considers that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "120. The Government were of the view that the applicants’ complaint about the disclosure of information concerning their situation, their personal data and their whereabouts had been examined in a number of domestic investigations, including the investigations initiated by the second applicant. However, the authorities had ultimately found that no criminal offence had been committed (see paragraphs 50 ‑ 51 above).", "121. The Government further submitted that the information concerning the case had been made public by the first applicant. She had informed her friend of her predicament by way of a text message sent to her friend during the night of 25 May 2008 and by instant messaging, asking for assistance and also thanking her for informing the school. Later on, the Family Court, when deciding on the first applicant’s deprivation of liberty, had had regard to correspondence from the first applicant’s school referring to this evidence (see paragraph 34 above). In the Government’s submission, this correspondence confirmed that she had taken the initiative and voluntarily provided information about her private life and her intention to have an abortion. Information made available voluntarily by the persons concerned was not subject to protection under Article 8 of the Convention (see N.F. v. Italy, no. 37119/97, § 39, 2 August 2001).", "122. The Government argued that actions taken by the medical staff of the Jan Boży hospital in Lublin had constituted a part of their routine functions. The first applicant had requested to see a priest and he had talked to her in the exercise of his ministry. The medical staff had not initiated any action with a view to making her change her mind as to the abortion. The hospital had not disclosed information about the first applicant’s stay, her family situation, her health, or about her personal details. That information had not been provided to the hospital in Warsaw.", "123. The Government further argued that the press release issued by the director of the Jan Boży Hospital in Lublin had never been published or announced to the public. No press conference had been organised to disseminate information about the case. Because of the media attention surrounding the case and pressure exerted by journalists, the media which had contacted the hospital’s management had received a comment that the doctors had invoked the “conscience clause”. The hospital managers had been obliged to comply with their duty of cooperating with the press in their capacity as persons exercising public function. The hospital had therefore not breached medical secrecy.", "124. To sum up, the Government were of the view that the applicants’ right to respect for their private life had not been violated.", "125. The applicants submitted that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning the first applicant’s pregnancy and their situation to priest K.P. and to the general public. They complained about the press release about the case issued by the management of the Lublin hospital, communication of information to the hospital in Warsaw concerning the first applicant’s identity, her situation and her and her mother’s wish to have the pregnancy terminated, and the disclosure of the applicants’ identity and whereabouts to the general public and the ensuing harassment by various third parties.", "126. The applicants complained that the medical staff of the Jan Boży hospital in Lublin had informed priest K.P. about their predicament without asking for their permission. As a result, he had been allowed to approach the first applicant without her or her family having asked to see him and without any thought having been given to the applicants’ wishes. Inappropriate and manipulative pressure had been exerted on the family by Dr. W.S. No proper respect had been shown for their own decisions and views. Information about the applicants’ case had been leaked to the public, including by way of a press release issued by that hospital. As a result, the applicants had found themselves in the midst of a public controversy and the subject of a heated media debate. A hospital in Warsaw where they had subsequently sought assistance had received information about the case from the Lublin hospital without requesting it. When the first applicant was in the hospital in Warsaw she had been harassed by anti-choice activists. The case had become national news and developments in it had been closely followed by many newspapers.", "127. The respondent State was liable for the above-mentioned violations of the applicants’ private and family life. Medical staff working for the public hospital and therefore considered to be agents of the State under Polish law had released sensitive information covered by the doctor ‑ patient privilege guaranteed under Polish law. The State was therefore responsible for the actions taken by medical personnel, individual doctors, and civil servants from the Ministry of Health.", "2. The Court’s assessment", "128. The Court has previously held that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for their private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may dramatically affect an individual’s private and family life, as well as his or her social and employment situation, by exposing that person to opprobrium and the risk of ostracism (see Z v. Finland, 25 February 1997, §§ 95 ‑ 96, Reports 1997 ‑ I). Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health (see Z v. Finland, cited above, § 95, and Biriuk v. Lithuania, no. 23373/03, § 43, 25 November 2008).", "129. The Court notes at the outset that it is not in dispute that the management of the Jan Boży hospital in Lublin issued a press release for the purposes of informing the press about the first applicant’s case, her pregnancy and the hospital’s refusal to carry out an abortion. The Government have also acknowledged that the journalists who contacted that hospital were given information about the circumstances of case. Nor is it in dispute that following the press release and information received by journalists from the hospital the case became the subject of a number of articles in the national press. The hospital was a public hospital for whose acts the State is responsible for the purposes of the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II, and I. v. Finland, no. 20511/03, § 35, 17 July 2008).", "130. The Court has noted the Government’s argument that the press release did not contain the applicants’ names or other details making it possible to establish their identity. However, the Court observes that after that communiqué the first applicant was contacted by various third parties who sent numerous text messages to her urging her to abandon her intention to have an abortion. The doctors at the Warsaw hospital informed the applicants that a lot of pressure had been put on the hospital with a view to discouraging it from carrying out the abortion. That hospital had received numerous e-mails from persons criticising the applicants for their intention to have recourse to an abortion. In the evening of 4 June 2008 an unidentified woman went to the first applicant’s room and tried to convince her to continue with the pregnancy. When the applicants were leaving that hospital on 5 June 2008 they were accosted by anti-abortion activists. Hence, the Court has no choice but to conclude that the information made available to the public must have been detailed enough to make it possible for third parties to establish the applicants’ whereabouts and to contact them, either by mobile phone or personally.", "131. In so far as the Government appear to argue that the first applicant, by contacting a friend via text messages and disclosing her predicament to her, had wished to make her case public, the Court notes that this can reasonably be regarded as a call for assistance, addressed to that friend and possibly also to her close environment, such as the school, by a vulnerable and distraught teenager in a difficult life situation. By no means can it be equated with an intention to disclose information about her pregnancy, her own views and feelings about it and about her family’s attitude towards it to the general public and to the press.", "132. The Court finds that there was thus an interference with the applicants’ right to respect for their private life. Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2, and was “necessary in a democratic society” to attain them.", "133. It is true that a State enjoys a certain margin of appreciation in deciding what “respect” for private life requires in particular circumstances (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62 ‑ 63, Reports 1996 ‑ IV, and X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91). However, the fact that the issue of the availability of legal abortion in Poland is a subject of heated debate does not confer on the State a margin of appreciation so wide as to absolve the medical staff from their uncontested professional obligations regarding medical secrecy. It has not been argued, let alone shown, that in the present case there were any exceptional circumstances of such a character as to justify public interest in the first applicant’s health (compare and contrast, Editions Plon v. France, no. 58148/00, ECHR 2004 ‑ IV, mutatis mutandis, where the Court held that a permanent ban on distribution of a book disclosing health information about a public person was not necessary in a democratic society). The Court fails to see how the disclosure of information about the first applicant’s unwanted pregnancy and about the refusal to carry out an abortion could be justified by media interest in the case. In the Court’s view it cannot be regarded as compatible either with the Convention standards as to the State’s obligation to secure respect for one’s private or family life, or with the obligations of the medical staff to respect patients’ rights laid down by Polish law. It did not therefore pursue a legitimate aim. That of itself is sufficient to ground a breach of Article 8 of the Convention.", "134. However, the Court considers that it is also appropriate to address the lawfulness requirement. The Government referred in this connection to the general obligation of the hospital managers to co-operate with the press in their capacity as persons exercising a public function. However, no provision of domestic law has been cited on the basis of which information about individual patients’ health issues, even non-nominate information, could be disclosed to the general public by way of a press release. It further observes that the first applicant was entitled to respect for her privacy regarding her sexual life, whatever concerns or interest her predicament generated in the local community. The national law expressly recognised the rights of patients to have their medical data protected, and imposed on health professionals an obligation to abstain from disclosing information about their patients’ conditions. Likewise, the second applicant was entitled to the protection of information concerning her family life. Yet, despite this obligation, the Lublin hospital made information concerning the present case available to the press.", "135. In the light of the foregoing considerations, the Court considers that the disclosure of information about the applicants’ case was neither lawful nor served a legitimate interest.", "136. In the absence of a legitimate aim or legal basis for the interference complained of, it is not necessary to ascertain whether it was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention.", "137. There has therefore been a violation of Article 8 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "138. The applicants complained of the unlawful removal of the first applicant from the custody of her mother, and her placement in a juvenile shelter and later in a hospital. They referred to Article 5 of the Convention, which, in so far as relevant, provides as follows:", "“1. ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;", "...”", "A. The parties’ observations", "139. The Government submitted that deprivation of liberty pursuant to Article 5 § 1 (d) of the Convention was allowed in most of the States Parties for the purpose of supervision of a minor’s education or to bring him or her before a relevant authority, in the minor’s interest, and also where the minor was not charged with a punishable act, but his or her development was endangered.", "140. The provision of Polish law applied in the present case empowered a family court to place a minor with a foster family or in an educational care centre. A court could interfere with parental authority as soon as a potential threat to the interests of the child came to light in order to prevent its negative consequences. Such an interference was not conditional on the inadequate performance of the parents, because a restriction of parental authority was not a measure of repression against parents, but a measure for the protection of the child which at the same time provided assistance to parents who were not coping adequately with their educational responsibilities.", "141. In the present case the domestic court had had evidence at its disposal that had led it to reasonably believe that the second applicant’s interests – not only her development, but also her health and life – were seriously threatened. She had been deprived of her liberty on the basis of a lawful decision designed to guarantee her interests.", "142. In the Government’s view, the procedure under which the first applicant had been deprived of her liberty had been fair. The decision had been taken promptly after the court learned about the first applicant’s situation. Likewise, the decision had been lifted as soon as the grounds on which she had been deprived of her liberty had ceased to exist. The authorities could not be accused of having acted arbitrarily.", "143. The applicants submitted that, considering the first applicant’s age, her distress and her unwanted pregnancy, the decision to deprive her of her liberty had been manifestly unjustified, excessive and extremely stressful for both applicants.", "B. The Court’s assessment", "144. It is not in dispute between the parties that the first applicant was “deprived of [her] liberty” within the meaning of Article 5 § 1. The Court reiterates that the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 must be interpreted strictly (see Guzzardi v. Italy, 6 November 1980, §§ 96, 98 and 100, Series A no. 39).", "145. It is further noted that detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect an individual from arbitrariness (see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114). In this regard, there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention (see Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references).", "146. The Court observes that the first applicant was placed in the juvenile shelter pursuant to Article 109 of the Family and Custody Code. It can therefore accept that the decision of the Family Court was lawful in terms of domestic law.", "147. As to Convention lawfulness, the Government justify her detention on the grounds of “educational supervision” within the meaning of Article 5 § 1 (d). The Court has therefore considered whether the detention complied with the conditions imposed by that subsection. The Court has accepted that, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching: in the context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned (see Koniarska v. the United Kingdom, (dec.), no. 33670/96, 12 October 2000).", "148. The Court observes that the Family Court imposed detention on the first applicant, having regard to her pregnancy and referring to the doubts as to whether she was under pressure to have an abortion. The Court has already acknowledged, in the context of Article 8 of the Convention, that there was a difference in the way in which the pregnancy affected the situation and life prospects of the first and second applicants (see paragraph 110 above). It was therefore legitimate to try to establish with certainty whether the first applicant had had an opportunity to reach a free and well ‑ informed decision about having recourse to abortion. However, the essential purpose of the decision on the first applicant’s placement was to separate her from her parents, in particular from the second applicant, and to prevent the abortion. The Court is of the view that by no stretch of the imagination can the detention be considered to have been ordered for educational supervision within the meaning of Article 5 § 1 (d) of the Convention if its essential purpose was to prevent a minor from having recourse to abortion. Furthermore, the Court is of the opinion that if the authorities were concerned that an abortion would be carried out against the first applicant’s will, less drastic measures than locking up a 14 ‑ year old girl in a situation of considerable vulnerability should have at least been considered by the courts. It has not been shown that this was indeed the case.", "149. Accordingly, the Court concludes that the first applicant’s detention between 4 and 14 June 2008, when the order of 3 June 2008 was lifted, was not compatible with Article 5 § 1 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "150. The applicants further complained that the facts of the case had given rise to a breach of Article 3 of the Convention in respect of the first applicant. This provision, in so far as relevant, reads as follows:", "“No one shall be subjected to ... inhuman or degrading treatment ...”", "151. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "A. The parties’ submissions", "152. In the Government’s view, the first applicant had not been subjected to treatment constituting a breach of Article 3 of the Convention. The applicant may have experienced stress or felt uncomfortable, but the treatment she complained about had not attained the minimum level of severity to consider it a breach of the said article of the Convention. On 9 April 2008 the second applicant had been offered psychological support for the first applicant, who had been given contraception counselling (the offer of post ‑ coital contraception). When the first applicant experienced pain and vaginal bleeding at the juvenile shelter on 6 June 2008, she had been given medical assistance.", "153. The purpose of the first applicant’s trip to the hospital in Gdańsk had been to help her in exercising her right to have an abortion. It had not been the intention of the authorities to subject her to debasing or inhuman treatment. Any discomfort that she might have felt had been connected with normal travel circumstances. The national authorities had taken it upon themselves to organise the travel and to provide means of transport.", "154. In the Government’s assessment, the situation in which the first applicant had found herself could in no way be compared to the situation of the applicant in the case of Tysiąc, referred to above, or that of the applicants in the case of A, B and C v. Ireland [GC], cited above. It should be noted that she had obtained the medical service she requested within the time ‑ limit provided for by the law.", "155. The first applicant complained that she had been subjected to physical and mental suffering amounting to inhuman and degrading treatment by the medical and law-enforcement authorities. Following the decision of the Lublin District Court, the first applicant had been taken from her mother’s custody, put in a police car, and driven around for hours without proper food, water or access to a toilet. In the shelter she had been locked up and not given prompt medical assistance despite vaginal bleeding and intense pain.", "156. When the first applicant had finally been allowed to have a legal termination of pregnancy, she had been driven in secret by the Ministry of Health to a hospital approximately 500 kilometers from her home. The applicant had not been provided with information on post-abortion care and immediately after the abortion she had been driven back home. The first applicant had been unnecessarily and repeatedly questioned about the circumstances concerning the rape, which had been traumatic for her. The circumstances of the case, seen as a whole, had exposed the first applicant to serious uncertainty, fear and anguish. The case had become national news; she, along will her mother, had been harassed by various persons driven by their own agenda who had no regard whatsoever for their dignity or the difficulty and vulnerability of their situation.", "B. The Court’s assessment", "157. According to the Court’s well ‑ established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Kupczak v. Poland, no. 2627/09, § 58, 25 January 2011; Wiktorko v. Poland, no. 14612/02, §§ 44 and 54, 31 March 2009 and R.R. v. Poland, cited above, § 148).", "158. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical and mental suffering (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV).", "159. Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Iwańczuk v. Poland, no. 25196/94, § 51, 15 November 2001, and Wiktorko v. Poland, cited above).", "160. Although the purpose of such treatment is a factor to be taken into account, in particular, whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3. Moreover, it cannot be excluded that acts and omissions on the part of the authorities in the field of health-care policy may in certain circumstances engage their responsibility under Article 3 (see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V). The Court has also made findings of a breach of this provision in the context of reproductive rights (see V.C. v. Slovakia, no. 18968/07, §§ 106-120, ECHR 2011 (extracts).", "161. For the Court’s assessment of this complaint it is of a cardinal importance that the first applicant was at the material time only fourteen years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse. The Court cannot overlook the fact that the medical certificate issued immediately afterwards confirmed bruises on her body and concluded that physical force had been used to overcome her resistance.", "162. In the light of the above, the Court has no choice but to conclude that the first applicant was in a situation of great vulnerability.", "163. However, when the applicant was admitted to Jan Boży hospital in Lublin pressure was exerted on her by the chief doctor who tried to impose her own views on the applicant. Furthermore, the applicant was obliged to talk to a priest without being asked whether she in fact wished to see one. Considerable pressure was put on her and on her mother. Dr W.S. made the mother sign a declaration acknowledging that an abortion could lead to the first applicant’s death. The Court has already noted that no cogent medical reasons have been put forward to justify the strong terms of that declaration (see paragraph 102 above). The first applicant witnessed the argument between the doctor and the second applicant, the doctor accusing the second applicant that she was a bad mother.", "164. The Court has already found that information about the case was relayed by the press, also as a result of the press release issued by the hospital. The first applicant received numerous unwanted and intrusive text messages from people she did not know. In the hospital in Warsaw the authorities failed to protect her from being contacted by various persons who tried to exert pressure on her. The applicant was harassed. The authorities not only failed to provide protection to her, having regard to her young age and vulnerability, but further compounded the situation. The Court notes, in particular, that after the first applicant requested protection from the police when she was accosted by anti-abortion activists after leaving hospital in Warsaw, protection was in fact denied her. She was instead arrested in the execution of the court’s decision on her placement in the juvenile centre.", "165. The Court has been particularly struck by the fact that the authorities decided to institute criminal investigation on charges of unlawful intercourse against the first applicant who, according to the prosecutor’s certificate and the forensic findings referred to above should have been considered to be a victim of sexual abuse. The Court considers that this approach fell short of the requirements inherent in the States’ positive obligations to establish and apply effectively a criminal ‑ law system punishing all forms of sexual abuse (see, M.C. v. Bulgaria, no. 39272/98, § 184, ECHR 2003 ‑ XII). The investigation against the applicant was ultimately discontinued, but the mere fact that they were instituted and conducted shows a profound lack of understanding of her predicament.", "166. On the whole, the Court considers that no proper regard was had to the first applicant’s vulnerability and young age and her own views and feelings.", "167. In the examination of the present complaint it is necessary for the Court to assess the first applicant’s situation as a whole, having regard in particular to the cumulative effects of the circumstances on the applicant’s situation. In this connection, it must be borne in mind that the Court has already found, having examined the complaint under Article 8 of the Convention about the determination of the first applicant’s access to abortion, that the approach of the authorities was marred by procrastination, confusion and lack of proper and objective counselling and information (see § 108 above). Likewise, the fact that the first applicant was separated from her mother and deprived of liberty in breach of the requirements of Article 5 § 1 of the Convention must be taken into consideration.", "168. The Court concludes, having regard to the circumstances of the case seen as a whole, that the first applicant was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention.", "169. The Court concludes that there has therefore been a breach of that provision.", "VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "170. The Court notes at the outset that the applicants also made various other complaints under several Articles of the Convention.", "171. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "172. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "173. The first applicant requested the Court to award her just satisfaction in the amount of 60,000 euros (EUR) in respect of non ‑ pecuniary damage. She submitted that the impact on the events concerned in the case had been extremely severe on her. She had been the object of comments expressed in public, in the media and directly to her. A book on the case by an anti-choice activist had been published, describing the events in a malicious and distorted manner. Her true identity and details of her private life had leaked to the media. She had suffered because her mother who had tried to protect and help her, was vilified in public. She had also been deprived of liberty. Her suffering during the summer of 2008 when the main events took place was intense, but she also suffered later when, for example, her teachers had made inappropriate comments and disclosed to her classmates what had happened to her.", "174. The second applicant requested the Court to award her just satisfaction in the amount of EUR 40,000. She argued that she had suffered immense stress and anxiety caused by the treatment to which her daughter was subjected. She herself had fallen victim of hostility and hateful comments on the part of the hospital staff, anti ‑ choice activists, the police, the general public and certain media. As the story leaked to the media and their identity had been disclosed, she had been unable to protect her child. Her own identity had been disclosed as well. She had to appear before the courts several times and was subjected to humiliating interrogations.", "175. The Government did not comment.", "176. The Court, having regard to the applicants’ submissions, is of the view that in the circumstances of the case they must have experienced considerable anguish and suffering, not only in respect of the difficulties which arose in the determination of access to a lawful abortion, in so far as the 1993 Act allowed it, but also because of the unlawful disclosure of information about their case to the public and the unwelcome publicity it caused. The Court, having regard to the circumstances of the case seen as a whole, to the differences in the applicants’ situations and deciding on equitable basis, awards EUR 30,000 to the first and EUR 15,000 to the second applicant.", "B. Costs and expenses", "177. The applicants claimed reimbursement of costs and expenses incurred in the domestic proceedings as well as in the proceedings before the Court itself, in the total amount of EUR 26 445,10. They referred to invoices which they had submitted.", "178. Ms Gąsiorowska and Ms Kotiuk claimed EUR 16,445, comprising EUR 13,370 in fees plus VAT of 22 per cent) in respect of legal fees for work which they had carried out in the domestic proceedings and representing the applicants before the Court. The legal fees corresponded to 191 hours spent in preparation of the applicants’ case for the purposes of representation before the domestic courts and the case before the Court, at an hourly rate of EUR 70. The time spent on the case included 50 hours of advising the applicants, helping them to respond to various letters and in helping them in filing appeals and motions, 5 hours of representing the applicants before the Lublin courts, 10 hours of representing them before the Warsaw courts, 25 hours of drafting criminal motions and appeals, two working days of meetings with the applicants, 15 hours consulting with assisting counsel and 20 hours spent in preparation of a response to the Court’s questions.", "179. Furthermore, the lawyers assisting the Polish lawyers on behalf of the Centre for Reproductive Rights, Ms Zampas and later Ms Westeson, claimed EUR 10,000 in respect of legal fees, corresponding to 100 hours at a hourly rate of EUR 100. They listed the following items: 70 hours spent in preparation of the case, 10 hours spent in communicating with Polish lawyers and 20 hours spent in drafting a response to the Court’s questions.", "180. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX).", "181. In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred.", "182. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicants a global sum of EUR 16,000 in respect of fees and expenses, plus any tax on that amount that may be chargeable to the applicants.", "C. Default interest", "183. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1993 and 1974 respectively and live in Lublin.", "6. On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in Lublin. She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant’s parents.", "7. Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no. 4 in Lublin, accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14 April 2008.", "8. The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education.", "9. On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator’s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance.", "10. On 20 May 2008 the District Prosecutor, referring to section 4 (a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (“the 1993 Act”) (see paragraph 54 below) issued a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age.", "A. Attempts to obtain an abortion in Lublin hospitals", "11. The second applicant went to the Ministry of Internal Affairs and Administration Hospital in Lublin to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary.", "12. The second applicant also went to another public hospital in Lublin (the Jan Boży hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused.", "13. The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to “get her daughter married”. She left his office, but returned shortly afterwards as she was afraid that without the doctor’s referral it would not be possible to obtain an abortion. He told her to report to the Jan Boży hospital.", "14. On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital.", "15. On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2 June. She then called the second applicant separately to her office and asked her to sign the following statement: “ I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter’s death .” On the same day the first applicant was discharged from the hospital for the weekend.", "16. On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working.", "17. The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it.", "18. The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest.", "19. During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest.", "20. When the second applicant arrived later, the priest spoke to her. She told him that it was the family’s decision to terminate the pregnancy. Dr W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby.", "21. Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion.", "22. The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning ( Federacja na rzecz Kobiet i Planowania Rodziny - hereinafter, “the Federation”) in Warsaw for help, as after their experience in Lublin she was afraid that no one in that town would perform an abortion.", "23. On an unspecified date the Jan Boży hospital issued a press release to the effect that it would not perform an abortion in the applicants’ case. Journalists who contacted the hospital were informed of the circumstances of the case.", "24. The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet.", "B. Attempts to obtain an abortion in Warsaw", "25. On 3 June 2008 the applicants went to Warsaw and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in Warsaw. She submitted to the hospital the certificate issued by the prosecutor (see paragraph 10 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the Lublin hospital that the first applicant did not wish to have an abortion.", "26. On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the Warsaw hospital later in the day together with Ms H.W., an anti ‑ abortion activist. They were allowed to see the first applicant. They talked to her in her mother’s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her.", "27. On the same day the first applicant’s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant’s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant’s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion.", "28. On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station.", "C. The first applicant’s placement in a juvenile shelter", "29. At the police station the applicants were questioned on the same day, from approximately 4 p.m. until 10 p.m. No food was offered to them. The officers showed the applicants the family court decision which the police had received by fax at about 7 p.m. from the Warsaw hospital. That decision, given by the Lublin Family Court, restricted the second applicant’s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below).", "30. Subsequently the police took the first applicant to a car. She was driven around Warsaw in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to Lublin, where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6 June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother’s home run by the Catholic church.", "31. A psychologist and an education specialist talked to her. She summarised the conversation thus:", "“They wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.”", "32. Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Boży hospital in Lublin. She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her.", "D. Proceedings before the Family and Custody Court", "33. On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a non ‑ identified authority, apparently a court supervisor ( kurator ), also on 3 June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights.", "In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother’s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist.", "Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor’s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene.", "34. On the same date that court, sitting in camera, ordered the first applicant’s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant’s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Boży hospital, which had refused to carry out an abortion having regard to the first applicant’s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to Warsaw with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article 109 para 1 (5) of the Family Code.", "35. On 6 June 2008 the second applicant appealed against that decision. On 9 June 2008 she filed with the court a written consent to her daughter’s abortion, which she also submitted to the Lublin hospital. On 10 June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it.", "36. On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant’s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14 June 2008 she was discharged from the hospital.", "37. On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant’s placement in the shelter.", "38. On 18 February 2009 the Lublin Family and Custody Court, relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant’s parents of their parental rights. It discontinued the proceedings.", "E. The applicants’ contact with the Ministry of Health", "39. Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor’s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised.", "40. On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gdańsk, in northern Poland, approximately 500 kilometers from their home in Lublin.", "41. On 17 June 2008 the Ministry of Health sent a car for the applicants and they were driven to Gdańsk. The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to Gdansk and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gdańsk had been put on the Internet by the Catholic Information Agency that day at 9 a.m.", "F. Various sets of criminal proceedings", "1. Against the first applicant", "42. On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 § 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25 September 2008.", "43. On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator.", "2. Against the perpetrator of the alleged rape", "44. On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10 June 2011.", "3. Against the second applicant, the first applicant’s father and two other persons", "45. On 14 July 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings against the second applicant, the first applicant’s father, Mrs W. N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the Warsaw hospital, that she had a right to a lawful abortion.", "4. Against other persons", "46. A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and Warsaw, Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used.", "47. The second applicant appealed against that decision.", "5. Against Ms H.W. and Mr M.N.-K.", "48. On 21 November 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in Warsaw on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19 September 2009 the Warsaw ‑ Śródmieście District Court dismissed the applicants’ appeal.", "6. Against the police officers", "49. On 17 September 2009 the Warsaw-Śródmieście District Court dismissed the first applicant’s appeal against a decision given on 26 May 2009 by the Warsaw-Sródmieście District Prosecutor to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer.", "7. Against various persons on charges of disclosure of confidential information", "50. On 31 October 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants’ personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the Warsaw hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31 March 2009 the Lublin Regional Court dismissed the appeal, finding that the prosecutor’s decision was lawful and correct.", "51. On 12 November 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, ²by the director of the hospital who had spoken to the press about the applicants’ case and by priest K.P. The applicants appealed submitting that information about the applicants’ situation had been disclosed to the general public.", "On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "52. The applicable provisions of domestic law are extensively summarised in the judgments of Tysiąc v. Poland, no. 5410/03, 20 March 2007, and R.R. v. Poland, no. 27617/04, 26 May 2011.", "53. In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time: “every human being shall have an inherent right to life from the moment of conception”.", "54. Section 4(a) of the 1993 Act reads, in its relevant part:", "“1. An abortion can be carried out only by a physician and where", "1) pregnancy endangers the mother’s life or health;", "2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life ‑ threatening ailment;", "3) there are strong grounds for believing that the pregnancy is the result of a criminal act.", "2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy.", "3. In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital.", "...", "5. The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor.. ”", "THE LAW", "I. THIRD PARTIES’ SUBMISSIONS", "55. The Court will first set out the submissions received from the third parties who were granted leave to intervene in the case. It will then examine the admissibility and merits of the applicants’ complaints under Articles 3 and 8 of the Convention.", "A. The Polish Helsinki Foundation for Human Rights", "56. In cases of sexual violence against women and girls, distress suffered by the victims is exacerbated by the risk of unwanted pregnancy or by actual pregnancy resulting from rape. A denial of timely access to necessary medical treatment for female victims of sexual assault, including legal abortion, exposes them to additional suffering and may constitute an act of inhuman or degrading treatment. The distress of a female victim of rape may also be amplified by the unauthorised release of confidential information concerning a rape-induced pregnancy.", "57. In the intervenor’s view, it is the State’s obligation, stemming from Article 3 of the Convention, to adopt detailed guidelines for the criminal justice system and health-care practitioners in order to prevent additional suffering for the victim. Therefore, developing a specialised procedure regulating conduct towards victims of sexual abuse would not only assist in collecting the necessary evidence but also, more importantly, validate and address sexual assault patients’ concerns, minimise the trauma they may experience and promote their healing.", "58. In theory, the 1993 Act grants women a broad array of reproductive health services, for instance, medical, social and legal assistance, easy access to information and pre-natal testing, methods of family planning and oral contraceptives, and the possibility to terminate a pregnancy. However, despite the statutory wording, Polish women and girls face significant barriers when seeking these medical services in practice. Problems with effective access to legal abortion are reflected in governmental statistics on the execution of the Act: the official number of legal abortions carried out in Poland is very low. In 2009 there were only 538 procedures of legal abortion nationwide. In 510 of those cases the termination was caused by embryopathological factors; 27 procedures were conducted in order to protect the life and health of the pregnant woman, and only 1 abortion was carried out on grounds of the registered pregnancy having been caused by a criminal act. No comprehensive analysis has been presented to explain such a small number of abortions. The third party considers the data collected by the Government highly unreliable and doubts whether they reflect the real situation. The data should be seen against the background of police statistics to the effect that 1,816 cases of rape were reported in 2009. The low figures for lawful abortions in connection with the enforcement of the 1993 Act prove only that women find it less complicated to terminate pregnancies illegally than under the provisions of that statute.", "59. Furthermore, in practice the “conscience” clause is often misused. Apart from being used by individual doctors, who fail to refer the patient to another hospital, it is also invoked by entire healthcare facilities, including public ones. Although the problem of such abuse is widely recognised, no effective monitoring mechanism has been put in place to ensure that women’s right to abortion is respected.", "B. The Rule of Law Institute, Lublin, Poland", "60. Issues involving the legal definition of and protection of human life, the determination of the conditions for its acceptable termination, and the understanding of privacy and freedom of conscience are issues of fundamental importance deeply rooted in the culture of each society. The definition of the temporal limits of human life falls within the margin of appreciation of the States Parties. It is not the Court’s task to question the doctors’ and State authorities’ decisions on the acceptability of abortion. It has been acknowledged in the Court’s case-law that the acceptance of termination of pregnancy should be left to decisions given by the democratically elected national authorities. This approach is based on the values underpinning the Convention, such as respect for individual freedom and dignity. Understanding of notions of life and parenthood is so strongly linked to personal freedom and dignity and also to the spiritual values common to the nation that their protection cannot be taken out of the national sphere. In the examination of any case the Court should also have regard to the social and cultural specificity of Poland.", "61. The notion of private life within the meaning of Article 8 of the Convention is not unlimited. Termination of pregnancy cannot be said to belong exclusively to the sphere of the mother’s private life. When a woman becomes pregnant her life becomes closely bound up with the developing child. It is not open to doubt that each decision on abortion is seriously harmful to the mother. It has long-lasting effects on her body and psyche. A woman who has decided to have an abortion for whatever dramatic reason must be treated with the utmost care and protection so as to avoid her dignity being threatened any further. This obligation of assistance rests in particular on the State officials responsible for handling such cases.", "C. The Coram Children’s Legal Centre, London", "62. The unique, special position of children has been expressly recognised in many international human rights instruments. The best interests of the child shall be a primary consideration in proceedings touching on its situation. The best interests of the child can only be assessed properly by reference to the views, wishes and feelings of the child. Failure to establish the child’s views may render any decision as to what those best interests are, and how they are best met, unsafe and unlawful. This principle applies irrespective of the type of decision or subject matter of the decision to be taken and is applicable to judicial decision-making and to administrative proceedings. The United Nations Committee on the Rights of the Child (CRC) has emphasised the need to provide appropriate child-sensitive procedural accommodation to enable children to take part in decision-making and legal proceedings.", "63. The rights protected by Article 8 of the Convention encompass protection of health and other personal information. Children are entitled to the same, if not higher, protection against non ‑ consensual disclosure of their health and other personal information to third parties, in view of their vulnerability. The CRC observed that confidential medical information concerning adolescents may only be disclosed with the consent of the person concerned or in the same situation applied to adults. Confidentiality is essential to promote the use of health services by adolescents. Other international bodies have consistently recognised the need to respect children’s privacy in matters of health as well as when they are victims of crime.", "64. Separation by public authorities amounts to an interference with the family’s rights. While authorities enjoy a wide margin of appreciation in assessing the need to take a child into care, the court must still be satisfied that genuine emergency circumstances existed justifying a child’s abrupt removal from her parents’ care without consultation. The State has the burden of demonstrating that it has engaged in a careful assessment of the impact of the separation on the family and of the available alternatives.", "65. In the context of a child’s placement in a juvenile centre there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention. A care order resulting in placing a child in a locked room in a juvenile shelter can only be made when the child is in such danger that it is impossible for him or her to remain in the family environment. Care orders do not fall into the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 of the Convention.", "D. European Centre for Law and Justice, Strasbourg", "66. The principle of the sanctity of life has been recognised by the Court. The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights. Life is not merely a private good and right; it is also a public good, which explains why it should by protected by criminal law. Moreover, pregnancy does not concern merely the mother’s private life.", "67. The Convention does not formulate any limitations as to the temporal scope of the protection of the right to life; it protects “everyone”. Every human life forms a continuum which begins at conception and advances towards death. Developments in in vitro fertilisation, abortion and euthanasia give rise to situations where the legal protection of life does not coincide with the natural temporal limits of life. The Court has accepted, referring to their margin of appreciation, that States are entitled to determine the moment from which that protection is accorded to a foetus. The Court has also accepted that a foetus belongs to the human race and should be protected as such.", "68. Abortion amounts to an exception or derogation from the principle that human life should be protected. There is no right to abortion as such; it must be regarded only as an exception to the rule. The Convention itself does not guarantee a right to abortion. Its Article 8 does not confer such a right on women. The Convention and its Protocols must be interpreted in the light of present-day conditions; however, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate.", "69. Where a State allows for legal abortion, it remains under a positive obligation to protect life and to strike a balance between competing interests. Such legitimate interests must be taken into account adequately and in accordance with the obligations deriving from the Convention. Making abortion lawful does not exempt the State from its responsibility to limit recourse to it and to restrict its consequences for the exercise of fundamental rights. The fundamental rights to life and to health cannot be put on the same footing as the alleged right to abortion. These rights cannot be balanced against each other. The obligation of the State is even stronger where vulnerable persons are concerned who need to be protected against pressure exerted on them, including by their own family environment. The State should be obliged to help pregnant women respect and nurture life. When a pregnant woman envisages abortion, it is the responsibility of the State to ensure that such a decision has not been taken as a result of external pressure.", "70. Medical professionals are entitled to refuse to provide medical services. This entitlement originates in their moral obligation to refuse to carry out immoral orders. The Court in its case-law has confirmed the supremacy of moral sense over positive law. Respect for the life of a human being underpins the right to conscientious objection in the medical sphere. Medical practitioners should not be obliged to perform abortion, euthanasia or in vitro fertilisation against their will and against their principles. A possible solution for this dilemma would be to establish a register of physicians qualified and willing to perform lawful abortions.", "E. Amnesty International", "71. The United Nations Committee on the Rights of the Child has emphasised most strongly that the term “violence” must not be interpreted in such a way as to minimise the impact of, and the need to address, non ‑ physical and/or non-intentional forms of harm, such as, inter alia, neglect and psychological maltreatment. That Committee defined inhuman or degrading treatment as “violence in all its forms against children in order to extract a confession, [or] to extrajudicially punish children for unlawful or unwanted behaviours”. Unwanted behaviour in this regard may be understood broadly to include a child’s desire to terminate an unwanted pregnancy and to exercise the right to freedom of conscience.", "72. The Inter-American Commission on Human Rights has remarked that victims of sexual violence cannot fully exercise their human rights unless they have access to comprehensive health-care services and information. Providing such care to victims of sexual violence should be treated as a policy priority.", "73. The United Nations Special Rapporteur on Violence against Women has noted that certain violations entail different harms for men and women and therefore require different reparation regimes to remedy the wrongdoing. Unwanted pregnancies are part of this gender-specific harm. Where States fail to take a comprehensive and gender-based approach to remedying sexual violence, this may cause additional suffering.", "74. The United Nations Committee on the Elimination of Discrimination against Women has recommended that States take measures to prevent coercion in regard to fertility and reproduction and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of a lack of appropriate services in regard to fertility control. Denial of available and legal means to prevent or terminate an unwanted pregnancy would constitute coercion.", "75. The Human Rights Committee has pointed out that the extent to which a State provides rape victims with access to safe abortion is of particular relevance to an assessment of that State’s compliance with the prohibition of cruel, inhuman and degrading treatment. Given the fact that the mental distress caused by unwanted pregnancy is likely to grow over time, substantial delay in the provision of voluntary abortion services after rape may cause severe suffering. It is not enough for the State to decriminalise abortion on paper; adequate procedures must be put in place to ensure the provision of legal medical services so that both law and practice are in conformity with the international legal obligations of the State under the UN Convention against Torture.", "76. Unauthorised release of confidential information about patient care and health violates the patient’s right to privacy. It may, in addition, deter women from seeking advice and treatment they need, thereby adversely affecting their health and well-being. The United Nations Committee on the Elimination of Discrimination against Women has held that breaches of confidentiality are particularly likely to render women “less willing to seek medical care ... for incomplete abortion and in cases where they have suffered sexual or physical violence”. Indeed, the general stigma attached to abortion and to sexual violence has been shown to deter women from seeking medical care, causing much distress and suffering, both physically and mentally.", "77. States have an obligation to ensure that their policies favour the best interests of the child, and to give due weight to the views of the child in all matters affecting him or her, in accordance with the age and maturity of the child. The United Nations Committee on the Rights of the Child has clarified that children’s rights to be heard and to have their views given due weight must be respected systematically in all decision-making processes, and their empowerment and participation should be central to child care ‑ giving and protection.", "When medical personnel subjects a child to sustained and aggravated harassment with a view to getting her to continue an unwanted pregnancy she has already and repeatedly asked to terminate, this constitutes mental violence, applied by persons who have power over the child, for the purposes of forcing her to engage in an activity against her will and, potentially, punishing her for unwanted behaviour.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DETERMINATION OF ACCESS TO LAWFUL ABORTION", "78. The applicants complained that the facts of the case gave rise to a breach of Article 8 of the Convention. They submitted that their right to due respect for their private and family life and for the first applicant’s physical and moral integrity had been violated by the absence of a comprehensive legal framework guaranteeing her timely and unhindered access to abortion under the conditions set out by the applicable laws.", "Article 8 of the Convention, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The first applicant’s status as a victim", "79. The Government submitted that the first applicant could not claim to be the victim of a breach of the Convention. The national authorities had fulfilled their positive obligation of not only ensuring a legal framework for carrying out an abortion, but, first and foremost, of guaranteeing effective measures leading to the implementation of that right. Therefore, the procedures applied by the national authorities had to be recognised as guaranteeing rights which were not only theoretical or illusory, but also practical and effective, and thus met the standards laid down in the Convention and the Court’s case ‑ law.", "80. The applicants submitted that the first applicant remained a victim of a breach of Article 8 of the Convention, despite ultimately, after long and protracted efforts, having undergone an abortion. The applicants had never claimed that the first applicant’s rights had been violated because she had not been allowed access to an abortion. The core of her complaint was that the State’s actions and systemic failures in connection with the circumstances concerning the determination of her access to abortion, seen as a whole, as well as the clandestine nature of the abortion, had resulted in a violation of Article 8.", "81. The unwillingness of numerous doctors to provide a referral for abortion or to carry out the lawful abortion as such constituted evidence of the State’s failure to enforce its own laws and to regulate the practice of conscientious objection. Both applicants had been misled by the doctors and the authorities as to the applicable procedure and requirements for lawful abortion. The first applicant had been given unwanted counselling by a priest, harassed by doctors and bullied by persons informed of her situation by the doctors and the priest. She had also been unlawfully torn from her mother’s custody and put into detention. When she had finally been allowed to obtain the abortion that she lawfully sought, that abortion had been performed in a clandestine manner, in a hospital five hundred kilometres from her home town.", "82. The State had failed to take appropriate measures to address the systemic and deliberate violations which had breached the applicants’ right to respect for their private life. The set of circumstances surrounding the applicants’ efforts to secure a lawful abortion for the first applicant had not been remedied by the fact that she had ultimately obtained it. The first applicant had not lost her victim status because the State had not acknowledged any of the alleged violations, nor had it provided redress.", "83. The Court observes that the scope of the present complaint is not limited to the mere question of access to abortion: the applicants neither challenged the Polish abortion legislation as such nor complained that the first applicant had been denied access to an abortion. Rather, the Court’s task is to examine the issues arising in connection with the procedural and practical modalities for the determination of the lawfulness of such access and, in particular, whether due regard for the applicants’ right to respect for their private and family life was had by the authorities throughout the events concerned. The fact that the first applicant ultimately obtained access to an abortion does not, by itself, deprive the applicants of their status of victims of the alleged breach of the Convention. To that extent the Government’s preliminary objection must therefore be dismissed.", "84. The Court considers that the issue of the applicants’ status as victims of the alleged violation of the Convention is closely linked to the substance of their complaint under Article 8 of the Convention, and should be joined to the merits of the case.", "2. Exhaustion of domestic remedies", "85. The Government submitted that the applicants had failed to exhaust relevant domestic remedies. The Polish legal system provided for legal avenues which made it possible by means of civil compensation claims under Articles 417, 444 and 448 of the Civil Code, or Articles 23 and 24 of that Code, to establish liability on the part of the doctors concerned for any damage caused by medical malpractice. The Government referred to judgments given by the Supreme Court in the cases of V CK 167/03 and V CJ 161/05, given on 21 November 2003 and 13 October 2005 respectively.", "86. The applicants submitted that they had had no legal means at their disposal in order to challenge the individual doctors or the decisions made by the hospital. Likewise, no remedy had been available to them in order to contest the failure to provide them with appropriate information in respect of the determination of access to abortion. The applicants had exhausted all possible effective domestic criminal-law remedies. Given the intentional nature of the acts and omissions by the State in this case, and the resulting serious impact on the applicants’ personal integrity and fundamental values, the remedy most appropriate in the circumstances of this case was a criminal ‑ law remedy (see M.C. v. Bulgaria, no. 39272/98, §§ 148 ‑ 53, ECHR 2003-XII, and X and Y v. the Netherlands, cited above, §§ 23-24).", "87. The first applicant submitted that civil proceedings in this case would not have provided her with sufficient and effective remedies to vindicate her right to respect for her private life. She was a young and vulnerable rape victim, whose identity would have been disclosed to the public during civil proceedings. This would have resulted in double victimisation. She had been in a weak position and completely dependent on the doctors. The Court in M.C. v. Bulgaria stressed that “[children and other vulnerable individuals, in particular, are entitled to effective [criminal-law] protection.” ( M.C. v. Bulgaria, cited above, § 150). Applicants should therefore not be required, in the absence of a successful criminal prosecution, to obtain redress by bringing a civil action for damages.", "88. The Court considers that the Government’s objection concerning the alleged failure to exhaust domestic remedies by way of pursuing a compensation claim before the civil courts in respect of this part of the application is closely linked to the substance of the applicants’ complaints under Article 8 of the Convention, and should therefore be joined to the merits of the case.", "89. The Court further notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "90. The Government submitted that decisions concerning the carrying out of abortions belonged to the sphere of private, not family, life. Hence, solely women were able to make the relevant decisions, within the limits set by the national legal framework. They referred to the case of Boso v. Italy, where the Court had held that Article 8 of the Convention did not give a potential father any right to participate in the decision-making as to whether or not to carry out an abortion (see Boso v. Italy (dec.), no. 50490/99, 5 September 2002). Therefore this provision could not be regarded as conferring such a right on the mother of the woman seeking an abortion.", "91. The fact that at the material time the first applicant was a minor did not confer on her mother, the second applicant, any rights under Article 8 of the Convention. While parental authority was a necessary element of family life, the scope and imperative nature of parental authority changed as the child developed and the functioning of the family had to be subordinated to the child’s interests. Therefore, there had been no violation of the second applicant’s rights guaranteed by Article 8 of the Convention.", "92. As regards the second applicant, the Government argued that the instant case differed fundamentally from the case of Tysiąc v. Poland, because ultimately the applicant had had access to an abortion within the time ‑ limit provided for by the statute. The legal conditions for a lawful abortion had existed in the present case and there had never been any dispute between the first applicant and the doctors whether the conditions for a legal abortion obtained. The refusal to perform an abortion at the Lublin hospital had resulted from the statutory right of a doctor to refrain from performing medical services contrary to his or her conscience, the so-called “conscience clause” provided for under Article 39 of the Doctor and Dentist Professions Act. That Act obliged a doctor to refer the patient to another physician. The doctors in that hospital had failed to refer the applicants to another medical practitioner, but that had not been to the first applicant’s detriment because she had ultimately obtained access to an abortion in a public hospital within the time limit provided for by law. Hence, it could not be said that in the circumstances of the present case there had been no procedural mechanism available with a view to determining access to a lawful abortion.", "93. The applicants submitted that the absence of a comprehensive legal framework governing the practice of conscientious objection and ensuring access to lawful termination of pregnancy in medical facilities had allowed the doctors to deny the first applicant her right to terminate her pregnancy in a respectful, dignified and timely manner. The applicants had been given contradictory and inaccurate information about the legal conditions that had to be met to obtain a lawful abortion (the waiting time, the necessary documents, the formal requirements which such documents had to meet, the necessity for parental consent by both parents). They had thus been hindered in taking a free decision on the matter of an abortion.", "2. The Court’s assessment", "(a) General principles", "94. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to the Court’s settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see, among other authorities, Olsson v. Sweden (No. 1), 24 March 1988, § 67, Series A no. 130).", "95. In addition, there may also be positive obligations inherent in effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91).", "96. The Court has previously found States to be under a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, among many other authorities, Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-...; Carlo Dossi and others v. Italy, (dec.), no. 26053/07, 12 October 2010; Yardımcı v. Turkey, no. 25266/05, 5 January 2010; §§ 55-56; Gecekuşu v. Turkey (dec.), no. 28870/05, 25 May 2010). These obligations may involve the adoption of measures including the provision of an effective and accessible means of protecting the right to respect for private life (see, among other authorities, McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X).", "While the Court has held that Article 8 cannot be interpreted as conferring a right to abortion, it has found that the prohibition of abortion when sought for reasons of health and/or well ‑ being falls within the scope of the right to respect for one’s private life and accordingly of Article 8 (see A, B and C v. Ireland [GC], no. 25579/05, § 245, 16 December 2010, § 214). In particular, the Court held in this context that the State’s obligations include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures ( Tysiąc v. Poland, cited above, § 110; A, B and C v. Ireland [GC], cited above, § 245; and R.R. v. Poland, cited above, § 184).", "97. The Court has already found that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion (see ( A, B and C v. Ireland [GC], cited above, §§ 235 and 237). In the absence of such a common approach regarding the beginning of life, the examination of national legal solutions as applied to the circumstances of individual cases is of particular importance for the assessment of whether a fair balance between individual rights and the public interest has been maintained (see also, for such an approach, A, B and C v. Ireland, cited above, § 229-241).", "98. Since the nature of the right to decide on the termination of a pregnancy is not absolute, the Court is of the view that the circumstances of the present case are more appropriately examined from the standpoint of the respondent State’s positive obligations arising under Article 8 of the Convention (see, mutatis mutandis, Tysiąc v. Poland, cited above, § 108).", "99. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). The Court has already found in the context of similar cases against Poland that once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion ( Tysiąc v. Poland, cited above, § 116 ‑ 124, R.R. v. Poland, cited above, § 200). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” ( A, B and C v. Ireland [GC], cited above, § 249). Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by that provision that the relevant decision ‑ making process is fair and such as to afford due respect for the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case, and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121). The Court has already held that in the context of access to abortion the relevant procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision (see Tysiąc v. Poland, cited above, § 117).", "(b) Application of the principles to the circumstances of the present case", "100. The Court first notes that the 1993 Act provides for the possibility of lawful abortion in certain narrowly defined situations. In its judgments referred to above the Court has already highlighted the importance of procedural safeguards in the context of the implementation of the 1993 Act when it comes to determining whether the conditions for lawful abortion provided for by that Act obtain. It held that Polish law did not contain any effective procedural mechanisms capable of determining whether these conditions were fulfilled in an individual case, either in the context of a dispute between a pregnant woman and doctors as to whether the conditions for lawful abortion on grounds of a threat to the woman’s health were met (see Tysiąc v. Poland, cited above, §§ 119–124), or in the context of possible foetal malformation confirmed by an initial diagnosis (see R.R. v. Poland, cited above, § 200 and 207).", "The present case differs from those two cases in that it concerns an unwanted pregnancy resulting from rape. Under Article 4 (a) 1 (5) of the 1993 Act abortion can lawfully be carried out where there are strong grounds for believing that the pregnancy was the result of a criminal act, certified by a prosecutor.", "101. The Court now has to examine how the legal framework was applied to the applicants’ case.", "102. In this connection, the Court observes that the first applicant received from the public prosecutor the certificate referred to above (see paragraph 10 above). However, the applicants contacted public hospitals in Lublin considerable difficulties arose in obtaining access to an abortion. They received contradictory information as to whether they needed a referral in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with. Ultimately, after an argument with the second applicant, a head of the gynaecological ward at the Lublin Jan Boży hospital refused to allow the abortion to be performed in her ward, relying on her personal views. The Court notes that the second applicant was requested to sign a consent form to the first applicant’s abortion which warned that the abortion could lead to her daughter’s death (see paragraph 15 above). No cogent reasons have been advanced to show that there were special grounds on which in the circumstances of the case an abortion could entail such danger.", "103. The applicants subsequently travelled to Warsaw, where the first applicant was admitted to another hospital. She was told there that she could have an abortion on the basis of the certificate issued by the prosecutor (see paragraph 10 above) and a medical certificate issued by the national consultant in gynaecology to the effect that she had a right to an abortion. However, the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. A psychologist spoke with the first applicant’s parents and with the first applicant. She apparently prepared an opinion on the case, to which the second applicant was not allowed access. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital had received numerous e-mails from persons criticising the applicants for the decision to have an abortion.", "104. Further, when the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, a Ministry official told her that the daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant told him that that statement had in fact been signed in the presence of three witnesses, he informed her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised.", "105. Ultimately, the applicants were notified by the Ministry of Health that to have an abortion the first applicant would have to go to a public hospital in Gdansk. The Court notes that that hospital was approximately 500 kilometres from the applicant’s home. The Court fails to see any justification for such an arrangement in respect of the provision of a lawful medical service. It has not been argued, let alone shown, that such a service was not available in a medical establishment closer to the applicants’ normal address.", "106. In so far as the Government referred in their submissions to the right of physicians to refuse certain services on grounds of conscience, relying on Article 9 of the Convention, the Court reiterates that the word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief (see, among many other authorities, Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation (see R.R. v. Poland, cited above, no. 27617/04, § 206).", "107. In this connection, the Court notes that Polish law has acknowledged the need to ensure that doctors are not obliged to carry out services to which they object, and put in place a mechanism by which such a refusal can be expressed. This mechanism also includes elements allowing the right to conscientious objection to be reconciled with the patient’s interests, by making it mandatory for such refusals to be made in writing and included in the patient’s medical record and, above all, by imposing on the doctor an obligation to refer the patient to another physician competent to carry out the same service. However, it has not been shown that these procedural requirements were complied with in the present case or that the applicable laws governing the exercise of medical professions were duly respected.", "108. On the whole, the Court finds that the staff involved in the applicants’ case did not consider themselves obliged to carry out the abortion expressly requested by the applicants on the strength of the certificate issued by the prosecutor. The events surrounding the determination of the first applicant’s access to legal abortion were marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness.", "109. As to the second applicant, the Court is fully aware that the issues involved for her in the case were different from those of the first applicant. The Court acknowledges that in a situation of unwanted pregnancy the mother of a minor girl is not affected in the same way. It is of the view that legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere. This consideration applies also in a situation where abortion is envisaged as a possible option. However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter. Hence, the difference in the situation of a pregnant minor and that of her parents does not obviate the need for a procedure for the determination of access to a lawful abortion whereby both parties can be heard and their views fully and objectively considered, including, if necessary, the provision of a mechanism for counselling and reconciling conflicting views in favour of the best interest of the minor. It has not been shown that the legal setting in Poland allowed for the second applicant’s concerns to be properly addressed in a way that would respect her views and attitudes and to balance them in a fair and respectful manner against the interests of her pregnant daughter in the determination of such access.", "110. In so far as the Government relied on the instruments of civil law as capable of addressing the applicants’ situation, the Court has already held, in the context of the case of Tysiąc v. Poland, cited above, that the provisions of the civil law as applied by the Polish courts did not make available a procedural instrument by which a pregnant woman seeking an abortion could fully vindicate her right to respect for her private life. The civil ‑ law remedy was solely of a retroactive and compensatory character. The Court was of the view that such retrospective measures alone were not sufficient to provide appropriate protection of the personal rights of a pregnant woman in the context of a controversy concerning the determination of access to lawful abortion, and emphasised the vulnerability of the woman’s position in such circumstances (see Tysiąc v. Poland, no. 5410/03, § 125, ECHR 2007 ‑ IV, and R.R. v. Poland, cited above, § 209, ECHR 2011 (extracts)). Given the retrospective nature of compensatory civil law, the Court fails to see any grounds on which to reach a different conclusion in the present case.", "The Court is fully aware of examples from the case ‑ law of the Polish civil courts where damages in tort were awarded to women complaining of a breach of their personal rights in various situations connected with unwanted pregnancies and access to abortion (see R.R. v. Poland, cited above, § 79-80, see also paragraph 52 above). However, in those cases the damage had arisen out of facts posterior to the refusal of abortion. No examples of case ‑ law have been adduced before the Court whereby the civil courts acknowledged and redressed damage caused to a pregnant woman by the anguish, anxiety and suffering entailed by her efforts to obtain access to abortion.", "The Court finds that in the present case civil litigation did not constitute an effective and accessible procedure allowing the applicants to vindicate their rights in the context of the determination of access to a lawful abortion. The Court therefore dismisses the Government’s preliminary objection concerning civil litigation as an effective remedy.", "111. The Court is of the view that effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent ( Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I; R.R. v. Poland, cited above, § 180). The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. The uncertainty which arose in the present case despite a background of circumstances in which under Article 4 (a) 1.5 of the 1993 Family Planning Act there was a right to lawful abortion resulted in a striking discordance between the theoretical right to such an abortion on the grounds referred to in that provision and the reality of its practical implementation ( Christine Goodwin v. the United Kingdom [GC], cited above, §§ 77-78; S.H. and Others v. Austria, cited above, § 74, mutatis mutandis; and A, B and C v. Ireland [GC], cited above).", "112. Having regard to the circumstances of the case, the Court concludes that the authorities failed to comply with their positive obligation to secure to the applicants effective respect for their private life. There has therefore been a breach of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE DISCLOSURE OF THE APPLICANTS’ PERSONAL AND MEDICAL DATA", "113. The applicants complained that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning their case to the general public.", "A. Admissibility", "114. The Government submitted that the applicants should have had recourse to civil litigation against the persons involved in their case, claiming a breach of their personal rights within the meaning of Articles 23 and 24 of the Civil Code.", "115. The applicants argued that there were no effective remedies in Poland for the violations complained of. Where criminal law could be used, such measures had been resorted to in the present case, but to no avail. Civil litigation would have led to the subsequent disclosure of the applicants’ identities and to further victimisation. It should not be overlooked that all the criminal proceedings instituted at the applicants’ request against various persons had eventually been discontinued. In any event, the applicants had not known the identity and addresses of the perpetrators of certain of the offences concerned. As under the Polish law names and addresses of defendants were necessary in order to bring a civil case before the civil court, the applicants had not been in a position to pursue civil litigation. As a result, the applicants’ rights could not be vindicated under the civil law. It was the responsibility of the State to establish the identity of the perpetrators of any criminal offences.", "116. The aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts (see, among many other authorities, Egmez v. Cyprus, no. 30873/96, § 64, ECHR 2000-XII). Where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant’s position so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see, among many other authorities, Wiktorko v. Poland, no. 14612/02, § 36, 31 March 2009, and Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5 July 2005). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports 1998-VIII; Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III; and Günaydin v. Turkey (dec.), no. 27526/95, 25 April 2002).", "117. The Court notes that the applicants complained to the prosecution authorities, which opened criminal investigations into a number of alleged offences, including two sets of investigations concerning specifically the allegations of disclosure of information about the case to the general public (see paragraphs 50 ‑ 51 above). The Court does not find the applicants’ choice of procedure unreasonable. The applicants tried to have the persons they believed to be guilty of criminal conduct towards them identified and punished. The authorities found that the persons concerned had no case to answer. In particular, the Lublin District Court considered it normal that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations (see paragraph 51 above). Having regard to the fact that the applicants’ efforts to have the disclosure of their personal information examined in criminal proceedings were unsuccessful, the Court considers that the applicants could not be required to embark on civil proceedings which, in the light of the findings made by the authorities, did not offer good prospects of the authorities finding that the conduct complained of was unlawful within the civil sense of that term.", "118. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies.", "119. The Court also considers that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "120. The Government were of the view that the applicants’ complaint about the disclosure of information concerning their situation, their personal data and their whereabouts had been examined in a number of domestic investigations, including the investigations initiated by the second applicant. However, the authorities had ultimately found that no criminal offence had been committed (see paragraphs 50 ‑ 51 above).", "121. The Government further submitted that the information concerning the case had been made public by the first applicant. She had informed her friend of her predicament by way of a text message sent to her friend during the night of 25 May 2008 and by instant messaging, asking for assistance and also thanking her for informing the school. Later on, the Family Court, when deciding on the first applicant’s deprivation of liberty, had had regard to correspondence from the first applicant’s school referring to this evidence (see paragraph 34 above). In the Government’s submission, this correspondence confirmed that she had taken the initiative and voluntarily provided information about her private life and her intention to have an abortion. Information made available voluntarily by the persons concerned was not subject to protection under Article 8 of the Convention (see N.F. v. Italy, no. 37119/97, § 39, 2 August 2001).", "122. The Government argued that actions taken by the medical staff of the Jan Boży hospital in Lublin had constituted a part of their routine functions. The first applicant had requested to see a priest and he had talked to her in the exercise of his ministry. The medical staff had not initiated any action with a view to making her change her mind as to the abortion. The hospital had not disclosed information about the first applicant’s stay, her family situation, her health, or about her personal details. That information had not been provided to the hospital in Warsaw.", "123. The Government further argued that the press release issued by the director of the Jan Boży Hospital in Lublin had never been published or announced to the public. No press conference had been organised to disseminate information about the case. Because of the media attention surrounding the case and pressure exerted by journalists, the media which had contacted the hospital’s management had received a comment that the doctors had invoked the “conscience clause”. The hospital managers had been obliged to comply with their duty of cooperating with the press in their capacity as persons exercising public function. The hospital had therefore not breached medical secrecy.", "124. To sum up, the Government were of the view that the applicants’ right to respect for their private life had not been violated.", "125. The applicants submitted that there had been a breach of Article 8 of the Convention as a result of the disclosure of information concerning the first applicant’s pregnancy and their situation to priest K.P. and to the general public. They complained about the press release about the case issued by the management of the Lublin hospital, communication of information to the hospital in Warsaw concerning the first applicant’s identity, her situation and her and her mother’s wish to have the pregnancy terminated, and the disclosure of the applicants’ identity and whereabouts to the general public and the ensuing harassment by various third parties.", "126. The applicants complained that the medical staff of the Jan Boży hospital in Lublin had informed priest K.P. about their predicament without asking for their permission. As a result, he had been allowed to approach the first applicant without her or her family having asked to see him and without any thought having been given to the applicants’ wishes. Inappropriate and manipulative pressure had been exerted on the family by Dr. W.S. No proper respect had been shown for their own decisions and views. Information about the applicants’ case had been leaked to the public, including by way of a press release issued by that hospital. As a result, the applicants had found themselves in the midst of a public controversy and the subject of a heated media debate. A hospital in Warsaw where they had subsequently sought assistance had received information about the case from the Lublin hospital without requesting it. When the first applicant was in the hospital in Warsaw she had been harassed by anti-choice activists. The case had become national news and developments in it had been closely followed by many newspapers.", "127. The respondent State was liable for the above-mentioned violations of the applicants’ private and family life. Medical staff working for the public hospital and therefore considered to be agents of the State under Polish law had released sensitive information covered by the doctor ‑ patient privilege guaranteed under Polish law. The State was therefore responsible for the actions taken by medical personnel, individual doctors, and civil servants from the Ministry of Health.", "2. The Court’s assessment", "128. The Court has previously held that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for their private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may dramatically affect an individual’s private and family life, as well as his or her social and employment situation, by exposing that person to opprobrium and the risk of ostracism (see Z v. Finland, 25 February 1997, §§ 95 ‑ 96, Reports 1997 ‑ I). Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health (see Z v. Finland, cited above, § 95, and Biriuk v. Lithuania, no. 23373/03, § 43, 25 November 2008).", "129. The Court notes at the outset that it is not in dispute that the management of the Jan Boży hospital in Lublin issued a press release for the purposes of informing the press about the first applicant’s case, her pregnancy and the hospital’s refusal to carry out an abortion. The Government have also acknowledged that the journalists who contacted that hospital were given information about the circumstances of case. Nor is it in dispute that following the press release and information received by journalists from the hospital the case became the subject of a number of articles in the national press. The hospital was a public hospital for whose acts the State is responsible for the purposes of the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II, and I. v. Finland, no. 20511/03, § 35, 17 July 2008).", "130. The Court has noted the Government’s argument that the press release did not contain the applicants’ names or other details making it possible to establish their identity. However, the Court observes that after that communiqué the first applicant was contacted by various third parties who sent numerous text messages to her urging her to abandon her intention to have an abortion. The doctors at the Warsaw hospital informed the applicants that a lot of pressure had been put on the hospital with a view to discouraging it from carrying out the abortion. That hospital had received numerous e-mails from persons criticising the applicants for their intention to have recourse to an abortion. In the evening of 4 June 2008 an unidentified woman went to the first applicant’s room and tried to convince her to continue with the pregnancy. When the applicants were leaving that hospital on 5 June 2008 they were accosted by anti-abortion activists. Hence, the Court has no choice but to conclude that the information made available to the public must have been detailed enough to make it possible for third parties to establish the applicants’ whereabouts and to contact them, either by mobile phone or personally.", "131. In so far as the Government appear to argue that the first applicant, by contacting a friend via text messages and disclosing her predicament to her, had wished to make her case public, the Court notes that this can reasonably be regarded as a call for assistance, addressed to that friend and possibly also to her close environment, such as the school, by a vulnerable and distraught teenager in a difficult life situation. By no means can it be equated with an intention to disclose information about her pregnancy, her own views and feelings about it and about her family’s attitude towards it to the general public and to the press.", "132. The Court finds that there was thus an interference with the applicants’ right to respect for their private life. Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2, and was “necessary in a democratic society” to attain them.", "133. It is true that a State enjoys a certain margin of appreciation in deciding what “respect” for private life requires in particular circumstances (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62 ‑ 63, Reports 1996 ‑ IV, and X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91). However, the fact that the issue of the availability of legal abortion in Poland is a subject of heated debate does not confer on the State a margin of appreciation so wide as to absolve the medical staff from their uncontested professional obligations regarding medical secrecy. It has not been argued, let alone shown, that in the present case there were any exceptional circumstances of such a character as to justify public interest in the first applicant’s health (compare and contrast, Editions Plon v. France, no. 58148/00, ECHR 2004 ‑ IV, mutatis mutandis, where the Court held that a permanent ban on distribution of a book disclosing health information about a public person was not necessary in a democratic society). The Court fails to see how the disclosure of information about the first applicant’s unwanted pregnancy and about the refusal to carry out an abortion could be justified by media interest in the case. In the Court’s view it cannot be regarded as compatible either with the Convention standards as to the State’s obligation to secure respect for one’s private or family life, or with the obligations of the medical staff to respect patients’ rights laid down by Polish law. It did not therefore pursue a legitimate aim. That of itself is sufficient to ground a breach of Article 8 of the Convention.", "134. However, the Court considers that it is also appropriate to address the lawfulness requirement. The Government referred in this connection to the general obligation of the hospital managers to co-operate with the press in their capacity as persons exercising a public function. However, no provision of domestic law has been cited on the basis of which information about individual patients’ health issues, even non-nominate information, could be disclosed to the general public by way of a press release. It further observes that the first applicant was entitled to respect for her privacy regarding her sexual life, whatever concerns or interest her predicament generated in the local community. The national law expressly recognised the rights of patients to have their medical data protected, and imposed on health professionals an obligation to abstain from disclosing information about their patients’ conditions. Likewise, the second applicant was entitled to the protection of information concerning her family life. Yet, despite this obligation, the Lublin hospital made information concerning the present case available to the press.", "135. In the light of the foregoing considerations, the Court considers that the disclosure of information about the applicants’ case was neither lawful nor served a legitimate interest.", "136. In the absence of a legitimate aim or legal basis for the interference complained of, it is not necessary to ascertain whether it was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention.", "137. There has therefore been a violation of Article 8 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "138. The applicants complained of the unlawful removal of the first applicant from the custody of her mother, and her placement in a juvenile shelter and later in a hospital. They referred to Article 5 of the Convention, which, in so far as relevant, provides as follows:", "“1. ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;", "...”", "A. The parties’ observations", "139. The Government submitted that deprivation of liberty pursuant to Article 5 § 1 (d) of the Convention was allowed in most of the States Parties for the purpose of supervision of a minor’s education or to bring him or her before a relevant authority, in the minor’s interest, and also where the minor was not charged with a punishable act, but his or her development was endangered.", "140. The provision of Polish law applied in the present case empowered a family court to place a minor with a foster family or in an educational care centre. A court could interfere with parental authority as soon as a potential threat to the interests of the child came to light in order to prevent its negative consequences. Such an interference was not conditional on the inadequate performance of the parents, because a restriction of parental authority was not a measure of repression against parents, but a measure for the protection of the child which at the same time provided assistance to parents who were not coping adequately with their educational responsibilities.", "141. In the present case the domestic court had had evidence at its disposal that had led it to reasonably believe that the second applicant’s interests – not only her development, but also her health and life – were seriously threatened. She had been deprived of her liberty on the basis of a lawful decision designed to guarantee her interests.", "142. In the Government’s view, the procedure under which the first applicant had been deprived of her liberty had been fair. The decision had been taken promptly after the court learned about the first applicant’s situation. Likewise, the decision had been lifted as soon as the grounds on which she had been deprived of her liberty had ceased to exist. The authorities could not be accused of having acted arbitrarily.", "143. The applicants submitted that, considering the first applicant’s age, her distress and her unwanted pregnancy, the decision to deprive her of her liberty had been manifestly unjustified, excessive and extremely stressful for both applicants.", "B. The Court’s assessment", "144. It is not in dispute between the parties that the first applicant was “deprived of [her] liberty” within the meaning of Article 5 § 1. The Court reiterates that the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 must be interpreted strictly (see Guzzardi v. Italy, 6 November 1980, §§ 96, 98 and 100, Series A no. 39).", "145. It is further noted that detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect an individual from arbitrariness (see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114). In this regard, there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention (see Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references).", "146. The Court observes that the first applicant was placed in the juvenile shelter pursuant to Article 109 of the Family and Custody Code. It can therefore accept that the decision of the Family Court was lawful in terms of domestic law.", "147. As to Convention lawfulness, the Government justify her detention on the grounds of “educational supervision” within the meaning of Article 5 § 1 (d). The Court has therefore considered whether the detention complied with the conditions imposed by that subsection. The Court has accepted that, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching: in the context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned (see Koniarska v. the United Kingdom, (dec.), no. 33670/96, 12 October 2000).", "148. The Court observes that the Family Court imposed detention on the first applicant, having regard to her pregnancy and referring to the doubts as to whether she was under pressure to have an abortion. The Court has already acknowledged, in the context of Article 8 of the Convention, that there was a difference in the way in which the pregnancy affected the situation and life prospects of the first and second applicants (see paragraph 110 above). It was therefore legitimate to try to establish with certainty whether the first applicant had had an opportunity to reach a free and well ‑ informed decision about having recourse to abortion. However, the essential purpose of the decision on the first applicant’s placement was to separate her from her parents, in particular from the second applicant, and to prevent the abortion. The Court is of the view that by no stretch of the imagination can the detention be considered to have been ordered for educational supervision within the meaning of Article 5 § 1 (d) of the Convention if its essential purpose was to prevent a minor from having recourse to abortion. Furthermore, the Court is of the opinion that if the authorities were concerned that an abortion would be carried out against the first applicant’s will, less drastic measures than locking up a 14 ‑ year old girl in a situation of considerable vulnerability should have at least been considered by the courts. It has not been shown that this was indeed the case.", "149. Accordingly, the Court concludes that the first applicant’s detention between 4 and 14 June 2008, when the order of 3 June 2008 was lifted, was not compatible with Article 5 § 1 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "150. The applicants further complained that the facts of the case had given rise to a breach of Article 3 of the Convention in respect of the first applicant. This provision, in so far as relevant, reads as follows:", "“No one shall be subjected to ... inhuman or degrading treatment ...”", "151. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "A. The parties’ submissions", "152. In the Government’s view, the first applicant had not been subjected to treatment constituting a breach of Article 3 of the Convention. The applicant may have experienced stress or felt uncomfortable, but the treatment she complained about had not attained the minimum level of severity to consider it a breach of the said article of the Convention. On 9 April 2008 the second applicant had been offered psychological support for the first applicant, who had been given contraception counselling (the offer of post ‑ coital contraception). When the first applicant experienced pain and vaginal bleeding at the juvenile shelter on 6 June 2008, she had been given medical assistance.", "153. The purpose of the first applicant’s trip to the hospital in Gdańsk had been to help her in exercising her right to have an abortion. It had not been the intention of the authorities to subject her to debasing or inhuman treatment. Any discomfort that she might have felt had been connected with normal travel circumstances. The national authorities had taken it upon themselves to organise the travel and to provide means of transport.", "154. In the Government’s assessment, the situation in which the first applicant had found herself could in no way be compared to the situation of the applicant in the case of Tysiąc, referred to above, or that of the applicants in the case of A, B and C v. Ireland [GC], cited above. It should be noted that she had obtained the medical service she requested within the time ‑ limit provided for by the law.", "155. The first applicant complained that she had been subjected to physical and mental suffering amounting to inhuman and degrading treatment by the medical and law-enforcement authorities. Following the decision of the Lublin District Court, the first applicant had been taken from her mother’s custody, put in a police car, and driven around for hours without proper food, water or access to a toilet. In the shelter she had been locked up and not given prompt medical assistance despite vaginal bleeding and intense pain.", "156. When the first applicant had finally been allowed to have a legal termination of pregnancy, she had been driven in secret by the Ministry of Health to a hospital approximately 500 kilometers from her home. The applicant had not been provided with information on post-abortion care and immediately after the abortion she had been driven back home. The first applicant had been unnecessarily and repeatedly questioned about the circumstances concerning the rape, which had been traumatic for her. The circumstances of the case, seen as a whole, had exposed the first applicant to serious uncertainty, fear and anguish. The case had become national news; she, along will her mother, had been harassed by various persons driven by their own agenda who had no regard whatsoever for their dignity or the difficulty and vulnerability of their situation.", "B. The Court’s assessment", "157. According to the Court’s well ‑ established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Kupczak v. Poland, no. 2627/09, § 58, 25 January 2011; Wiktorko v. Poland, no. 14612/02, §§ 44 and 54, 31 March 2009 and R.R. v. Poland, cited above, § 148).", "158. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical and mental suffering (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV).", "159. Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Iwańczuk v. Poland, no. 25196/94, § 51, 15 November 2001, and Wiktorko v. Poland, cited above).", "160. Although the purpose of such treatment is a factor to be taken into account, in particular, whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3. Moreover, it cannot be excluded that acts and omissions on the part of the authorities in the field of health-care policy may in certain circumstances engage their responsibility under Article 3 (see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V). The Court has also made findings of a breach of this provision in the context of reproductive rights (see V.C. v. Slovakia, no. 18968/07, §§ 106-120, ECHR 2011 (extracts).", "161. For the Court’s assessment of this complaint it is of a cardinal importance that the first applicant was at the material time only fourteen years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse. The Court cannot overlook the fact that the medical certificate issued immediately afterwards confirmed bruises on her body and concluded that physical force had been used to overcome her resistance.", "162. In the light of the above, the Court has no choice but to conclude that the first applicant was in a situation of great vulnerability.", "163. However, when the applicant was admitted to Jan Boży hospital in Lublin pressure was exerted on her by the chief doctor who tried to impose her own views on the applicant. Furthermore, the applicant was obliged to talk to a priest without being asked whether she in fact wished to see one. Considerable pressure was put on her and on her mother. Dr W.S. made the mother sign a declaration acknowledging that an abortion could lead to the first applicant’s death. The Court has already noted that no cogent medical reasons have been put forward to justify the strong terms of that declaration (see paragraph 102 above). The first applicant witnessed the argument between the doctor and the second applicant, the doctor accusing the second applicant that she was a bad mother.", "164. The Court has already found that information about the case was relayed by the press, also as a result of the press release issued by the hospital. The first applicant received numerous unwanted and intrusive text messages from people she did not know. In the hospital in Warsaw the authorities failed to protect her from being contacted by various persons who tried to exert pressure on her. The applicant was harassed. The authorities not only failed to provide protection to her, having regard to her young age and vulnerability, but further compounded the situation. The Court notes, in particular, that after the first applicant requested protection from the police when she was accosted by anti-abortion activists after leaving hospital in Warsaw, protection was in fact denied her. She was instead arrested in the execution of the court’s decision on her placement in the juvenile centre.", "165. The Court has been particularly struck by the fact that the authorities decided to institute criminal investigation on charges of unlawful intercourse against the first applicant who, according to the prosecutor’s certificate and the forensic findings referred to above should have been considered to be a victim of sexual abuse. The Court considers that this approach fell short of the requirements inherent in the States’ positive obligations to establish and apply effectively a criminal ‑ law system punishing all forms of sexual abuse (see, M.C. v. Bulgaria, no. 39272/98, § 184, ECHR 2003 ‑ XII). The investigation against the applicant was ultimately discontinued, but the mere fact that they were instituted and conducted shows a profound lack of understanding of her predicament.", "166. On the whole, the Court considers that no proper regard was had to the first applicant’s vulnerability and young age and her own views and feelings.", "167. In the examination of the present complaint it is necessary for the Court to assess the first applicant’s situation as a whole, having regard in particular to the cumulative effects of the circumstances on the applicant’s situation. In this connection, it must be borne in mind that the Court has already found, having examined the complaint under Article 8 of the Convention about the determination of the first applicant’s access to abortion, that the approach of the authorities was marred by procrastination, confusion and lack of proper and objective counselling and information (see § 108 above). Likewise, the fact that the first applicant was separated from her mother and deprived of liberty in breach of the requirements of Article 5 § 1 of the Convention must be taken into consideration.", "168. The Court concludes, having regard to the circumstances of the case seen as a whole, that the first applicant was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention.", "169. The Court concludes that there has therefore been a breach of that provision.", "VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "170. The Court notes at the outset that the applicants also made various other complaints under several Articles of the Convention.", "171. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "172. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "173. The first applicant requested the Court to award her just satisfaction in the amount of 60,000 euros (EUR) in respect of non ‑ pecuniary damage. She submitted that the impact on the events concerned in the case had been extremely severe on her. She had been the object of comments expressed in public, in the media and directly to her. A book on the case by an anti-choice activist had been published, describing the events in a malicious and distorted manner. Her true identity and details of her private life had leaked to the media. She had suffered because her mother who had tried to protect and help her, was vilified in public. She had also been deprived of liberty. Her suffering during the summer of 2008 when the main events took place was intense, but she also suffered later when, for example, her teachers had made inappropriate comments and disclosed to her classmates what had happened to her.", "174. The second applicant requested the Court to award her just satisfaction in the amount of EUR 40,000. She argued that she had suffered immense stress and anxiety caused by the treatment to which her daughter was subjected. She herself had fallen victim of hostility and hateful comments on the part of the hospital staff, anti ‑ choice activists, the police, the general public and certain media. As the story leaked to the media and their identity had been disclosed, she had been unable to protect her child. Her own identity had been disclosed as well. She had to appear before the courts several times and was subjected to humiliating interrogations.", "175. The Government did not comment.", "176. The Court, having regard to the applicants’ submissions, is of the view that in the circumstances of the case they must have experienced considerable anguish and suffering, not only in respect of the difficulties which arose in the determination of access to a lawful abortion, in so far as the 1993 Act allowed it, but also because of the unlawful disclosure of information about their case to the public and the unwelcome publicity it caused. The Court, having regard to the circumstances of the case seen as a whole, to the differences in the applicants’ situations and deciding on equitable basis, awards EUR 30,000 to the first and EUR 15,000 to the second applicant.", "B. Costs and expenses", "177. The applicants claimed reimbursement of costs and expenses incurred in the domestic proceedings as well as in the proceedings before the Court itself, in the total amount of EUR 26 445,10. They referred to invoices which they had submitted.", "178. Ms Gąsiorowska and Ms Kotiuk claimed EUR 16,445, comprising EUR 13,370 in fees plus VAT of 22 per cent) in respect of legal fees for work which they had carried out in the domestic proceedings and representing the applicants before the Court. The legal fees corresponded to 191 hours spent in preparation of the applicants’ case for the purposes of representation before the domestic courts and the case before the Court, at an hourly rate of EUR 70. The time spent on the case included 50 hours of advising the applicants, helping them to respond to various letters and in helping them in filing appeals and motions, 5 hours of representing the applicants before the Lublin courts, 10 hours of representing them before the Warsaw courts, 25 hours of drafting criminal motions and appeals, two working days of meetings with the applicants, 15 hours consulting with assisting counsel and 20 hours spent in preparation of a response to the Court’s questions.", "179. Furthermore, the lawyers assisting the Polish lawyers on behalf of the Centre for Reproductive Rights, Ms Zampas and later Ms Westeson, claimed EUR 10,000 in respect of legal fees, corresponding to 100 hours at a hourly rate of EUR 100. They listed the following items: 70 hours spent in preparation of the case, 10 hours spent in communicating with Polish lawyers and 20 hours spent in drafting a response to the Court’s questions.", "180. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX).", "181. In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred.", "182. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicants a global sum of EUR 16,000 in respect of fees and expenses, plus any tax on that amount that may be chargeable to the applicants.", "C. Default interest", "183. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1997 and lives in Deva.", "A. Alleged sexual abuse of the applicant", "6. At the time of the events, the eleven-year-old applicant was living with her family in a small village and often used to go to play with two girls from a neighbouring family at their house. The girls, F. C. B. and M.S.B., were about the same age as the applicant. The neighbours ’ family (the B. family) had ten children and were also accommodating a relative of theirs, J.V., a fifty-two - year - old man who was unemployed and lived in the family ’ s vacant cattle stable.", "7. According to the statement made by the applicant later to the police, in August 2008 and then again in December 2008, J.V. had dragged her by force while she was playing with her girlfriends at the neighbours ’ house, had taken her to an empty room in the house or into the barn and had raped her while holding her down and keeping his hand over her mouth in order to prevent her from screaming. The applicant also stated to the police that between August 2008 and February 2009 she had been raped in similar circumstances by four of the neighbours ’ sons and their friend G.I.", "8. On 10 March 2009 the applicant ’ s mother noticed that the applicant did not get her monthly period and had a talk with her. She told her mother that she had been sexually abused by J.V. and the other boys. She said that she had been ashamed to talk about what happened and also afraid to tell her parents sooner because J.V. had threatened that he would beat her if she told anyone.", "9. As a result of the sexual abuse, the applicant became pregnant and, with her parents ’ approval, she later underwent a surgical termination of the pregnancy.", "B. Criminal investigation and trial", "10. On 10 March 2009 the applicant ’ s parents lodged a complaint against the alleged perpetrators with the local police and an investigation was started against J.V. and the four brothers F.B., A.B., G.B. and P.B. No proceedings were opened with respect to G.I., who was under fourteen and hence not criminally liable.", "11. On the same day the five suspects were called into the police station for questioning. F.B. declared that on 22 December 2008, when the applicant was visiting her friends, he had asked her to have sex with him and she had accepted. P.B. declared that it had been J.V. who insistently told him to have sex with the applicant.", "12. On 11 March 2009 a forensic report found that no traces of violence had been detected on the applicant ’ s body.", "13. During the investigation J.V. declared that the applicant had provoked him to have sex with her as she was always scantily dressed. He further stated that it was she who had come to him and had asked him to have sex with her the first time, in August or September 2008. He alleged that the applicant had told him that she had had sex before with the boys from the B. family.", "14. The applicant declared before the police that she had been forced by J.V. to have sex with him on several occasions, alleging that he had threatened that he would beat her if she told anyone. The other boys had also forced her to have sex with them, telling her that it was J.V. who had told them what to do.", "15. On 22 April 2009 the Deva Police sent the file to the Prosecutor ’ s Office of the Hunedoara County Court in order to pursue the investigation into rape. The judiciary police officer making the request held that, even if the perpetrators ’ statements were to be accepted as truthful, the victim ’ s age (eleven at the time of the first sexual act) precluded the existence of legally valid consent as she could not have freely expressed her will.", "16. On 7 July 2009, at the request of the Hunedoara County Police, the Hunedoara County Forensic Institute issued a forensic psychiatric report on the applicant. The report held that the applicant was suffering from post-traumatic stress and stated that:", "“Concerning the specific circumstances in which the criminal acts were committed, the minor speaks with shame about what happened. She has a vivid memory of the events. ... She says that she did not tell anyone about the incidents sooner because she feared for her safety and the safety of her family members .”", "The report concluded that the applicant had difficulties in foreseeing the consequences of her actions and had insufficient discernment due to her age.", "17. F.B. declared before the prosecutor that he had had sex with the applicant once on 22 December 2008. A.B. declared that he had had sex with the applicant in the autumn of 2008. G.B. declared that he had had sex with the applicant once in April and then again in October 2008. P.B. stated that he had had sex with the applicant on one occasion in the autumn of 2008. The applicant had asked him to have sex with her, and when he had refused - because he had never done this before - it was she who got undressed and climbed onto him. He further mentioned that he had used a condom that he had in his pocket. They all declared that it was the applicant who had taken the initiative each time and that it had happened because she displayed a provocative attitude, being scantily dressed most of the time. Each brother stated that the applicant had told him that she had had sex before, either with one of the other brothers or with J.V.", "18. When questioned during the investigation, F.C.B. and M.S.B. declared that the applicant had told them she had had an intimate relationship with J.V. and that they had never seen him taking the applicant by force while they were playing. They also stated that the applicant often came to their house scantily dressed and that their brothers C.B. and A.B. had told them that the applicant had provoked them and “jumped onto them”.", "19. On 10 December 2009 the Prosecutor ’ s Office of the Hunedoara County Court issued an indictment decision with respect to J.V. for the crime of sexual intercourse with a minor on repeated occasions. F.B., A.B., G.B. and P.B. were given administrative fines for the same crime. From the statements of the perpetrators and the two sisters, the prosecutor held as proved the fact that the applicant had gone to the neighbours ’ house scantily dressed and had had a sexual relationship with J.V. The prosecutor therefore concluded that from the documents in the file it was not proved beyond doubt that the applicant had not given her consent to the sexual acts.", "20. The applicant ’ s complaint against the prosecutor ’ s decision concerning the four brothers and G.I. was rejected by the superior prosecutor and subsequently by the courts.", "21. On 20 April 2010 J.V. was found guilty by the Deva District Court of sexual intercourse with a minor and was sentenced to three years ’ imprisonment. The applicant was awarded 10, 000 Romanian lei (ROL) by way of compensation in respect of non-pecuniary damage (approximately 2,000 euros (EUR) ).", "22. During the proceedings the applicant ’ s representative requested the perpetrator ’ s conviction for rape. She submitted to the file a copy of a judgment issued on 10 November 2009 by the Bacău Court of Appeal which held that a girl aged ten years and eight months could not understand what a sexual act meant sufficiently well to give her consent to it.", "23. The applicant declared before the court that J.V. had forced her to have sex with him and had threatened to beat her if she told anyone. She was afraid of him because he could become violent when he was drunk. The other boys had also threatened to beat her and once A.B. had threatened her with a knife.", "24. In reaching its decision, after also hearing statements from J.V. and the witnesses F.C.B. and M.S.B., the Deva District Court firstly observed that the forensic certificate stated that no signs of violence had been detected on the victim ’ s body. The court further noted that it was apparent from the statements of J.V. and the other perpetrators who had not been indicted by the prosecutor that the applicant had always taken the initiative for the sexual acts and she had been in the habit of provoking both J.V. and the other boys to have sex with her. As regards the content of the above-mentioned statements, the court considered “relevant” the fact that the applicant was scantily dressed and that even after she had allegedly been sexually abused she went on playing with her girlfriends. The court considered that:", "“If sexual intercourse had taken place by force or by taking advantage of the victim ’ s lack of capacity to defend herself or to express her will, it is certain that [she] would not have continued her previous practice [going to play with the neighbours ’ daughters]”.", "25. The applicant, represented by her lawyer, appealed against the judgment of the Deva District Court, requesting that J.V. be convicted of rape and that the amount of compensation in respect of non-pecuniary damage be increased to ROL 50, 000. The applicant ’ s representative submitted that the decision of the first instance court had not been impartial since it had been based only on the statement of the accused, together with statements by the other perpetrators and two witnesses – all related to the accused. Furthermore, since the minimum age of consent to a sexual act was set by law at fifteen, the applicant ‒ who was only eleven at the time of the incidents ‒ could not have expressed valid consent and the sexual abuse committed against her could therefore only be classified as rape. In addition, the applicant ’ s representative complained that the forensic psychiatric report of 7 July 2009, which declared that the victim lacked capacity to express valid consent and was suffering from post-traumatic stress, had not been taken into consideration by the first instance court.", "26. The Hunedoara County Court decided to allow the applicant ’ s appeal, holding that:", "“According to the provisions of Article 197 of the Criminal Code, the crime of rape is ‘ Sexual intercourse of any kind with a person ... taking advantage of the [person ’ s] lack of capacity to defend herself or to express her will [original emphasis]... ’.", "At the time when the accused had sexual intercourse with the victim, she was eleven years old. In Romanian law, there is an absolute presumption that any person below fourteen completely lacks capacity. Therefore, before the age of fourteen, the minor cannot express a valid consent, being in a position of inability to express [his/her] will in a valid manner ... ”", "27. Taking these arguments into account, on 4 November 2010 the Hunedoara County Court convicted J.V. of rape and sentenced him to four years ’ imprisonment. The court applied a sentence below the minimum provided for by law for the crime of rape against a person under fifteen, finding mitigating circumstances due to the defendant ’ s good behaviour prior to the commission of the crime on trial. The court also held that it was not necessary to increase the amount of compensation in respect of non-pecuniary damage awarded by the first instance court.", "28. The applicant ’ s representative submitted an appeal on points of law ( recurs ) against the judgment of 4 November 2010, requesting an increase in the amount of compensation for non-pecuniary damage and that a more severe sentence be imposed on the defendant. J.V. also contested the judgment, requesting a conviction for the crime to which he had confessed, namely sexual intercourse with a minor.", "29. On 21 March 2011 the Alba Iulia Court of Appeal allowed the appeal on points of law submitted by J.V. and upheld with final effect the judgment of the Deva District Court of 20 April 2010. The Alba Iulia Court of Appeal based its verdict on the statements given by J.V., F.C.B. and M.S.B. as well as the account of the events given by the other perpetrators. Based on these testimonies and the fact that the victim had not told her parents about the alleged abuse, the court drew the conclusion that the instances of sexual intercourse had always been initiated by the applicant and dismissed the theory that the victim might have lacked capacity to express her will. The findings of the forensic psychiatric report of 7 July 2009 were not mentioned or discussed in any way by the court.", "The court of appeal explained as follows:", "“The court considers that the crime of rape is committed by constraint - physical or moral - or by taking advantage of the victim ’ s lack of capacity to express his/her will, more specifically rape is a sexual intercourse committed without consent. On the other hand, the crime of sexual intercourse with a minor, as provided by Article 198 of the Criminal Code, means engaging in a sexual intercourse with a minor under 15, but with the minor ’ s consent. ...", "“The presumption of lack of capacity applies only to minors who are under fourteen and have committed a crime, but with respect to the crime provided by Article 198 of the Criminal Code, the minor [the applicant] is the victim and not the perpetrator.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant domestic legal provisions", "30. The relevant articles of the Criminal Code in force at the time of the events read as follows:", "Article 99", "The limits of criminal responsibility", "“ (1) A minor who is less than 14 years old does not have criminal responsibility.”", "Article 197", "Rape", "“(1) Sexual intercourse of any kind, with a person of a different sex or of the same sex, by constraint or by taking advantage of the victim ’ s lack of capacity to express [his/her] will, is punishable with imprisonment from 3 to 10 years and the withdrawal of certain rights. ...", "(3) The punishment is imprisonment from 10 to 25 years and the withdrawal of certain rights if the victim is under 15, ... ”", "Article 198", "Sexual intercourse with a minor", "“ (1) Sexual intercourse of any kind, with a person of a different sex or of the same sex, who is under 15, is punishable with imprisonment from 3 to 10 years and the withdrawal of certain rights.”", "31. The relevant provisions of Decree No. 31/1954 on natural and legal persons read as follows:", "Article 5", "“ (3) The capacity of exercise is the capacity of a natural person to exercise his/her rights and to undertake obligations ... ”", "Article 11", "“ (1) The following persons do not have the capacity of exercise :", "a) the minor under 14; ”", "B. Examples of domestic case-law submitted by the Government", "32. The Government submitted a large number of judgments in order to illustrate the practice of the domestic courts in the matter of the crime of sexual intercourse with a minor, as set forth below :", "33. Twelve domestic court judgments (adopted between 2009 and 2013) follow the approach that the capacity to express valid consent on the part of a victim of sexual abuse who is a minor was to be determined in accordance with the particular circumstances of each case. In the majority of these cases, victims aged between eleven and fourteen years old were considered to have agreed to sexual acts with older men – including anal and oral sex – based on elements such as the fact that they had not told their parents, they had not screamed for help or that they had agreed to accompany the perpetrators to various places where the acts had taken place. In some of the cases discrepancies between the statements given by the victims at various stages of the proceedings were also considered to constitute an element proving their consent. In the two most recent judgments, the courts ordered psychiatric expert reports on responses to specific questions formulated in advance by the judges in order to assess the victim ’ s capacity to express valid consent to the sexual act.", "34. In four domestic court judgments (adopted in 2012 and 2013) the courts stressed the fact that victims of six, eight, nine and twelve years old could not express valid consent to sexual acts due to their young age, and convicted the perpetrators of rape. For example, in the case of a twelve - year - old girl raped by her uncle, the Olt County Court stated “ Even assuming that the victim ... agreed to the sexual acts, her consent was not valid because of her young age ... ”.", "35. The remaining sixteen judgments submitted by the Government concerned convictions of rape in cases where the perpetrators had used physical violence ( in ten cases victims were hit or knives were held to their throat) or threatened the victims ( in six cases there were threats that they would be killed or that their parents would be told that the victims allegedly agreed to have sex with the perpetrators ). In four of these cases the victims ’ young age (between eleven and fourteen years old) was an additional element taken into consideration by the judges in determining the lack of valid consent to the sexual acts. In only five cases had the courts requested forensic or neuro -psychiatric evaluations of the victims.", "C. Examples of domestic case-law submitted by the applicant", "36. The applicant submitted three domestic court judgments issued in cases involving victims between ten and fourteen years old where the perpetrators had been convicted of rape. In these cases the courts based their decisions on expert reports such as psychological evaluations and reports by the social services, and on statements from the individuals involved and from witnesses. In one judgment adopted by the Târgu Mureş Court of Appeal it was held that “In addition, it must not be overlooked that the [victim] was twelve, an age at which she could not objectively understand what was about to happen to her and, under these conditions, it cannot be held that she consented to have sex with the defendant .. .”.", "D. Reports by non-governmental organisations", "37. In May 2015 the Romanian non-governmental organisation Center for Legal Resources ( Centrul de Resurse Juridice ) issued a report on the situation of children in the Romanian justice system ( “ Justice in the interest of the child – perspectives and experiences of specialists from Romania, 2012 ” ). The report was drawn up following research and interviews conducted between 2013 and 2014 with people working within the justice system and concluded that children ’ s rights were not adequately protected within the justice system in Romania. The report stated that children were often re-victimised and confronted face-to-face with the perpetrators, were not offered any psychological counselling, and their vulnerability and individual needs were not taken into consideration. Cases of humiliation of girl victims and offensive attitudes towards them during hearings were also reported. In this respect the report quoted : “Numerous specialists from the social services reported cases in which adolescent victims of trafficking or sexual violence had been treated in a humiliating and aggressive manner by the prosecutors, the employees of the forensic institutes, or in court”. Later in the report it was suggested that some of the judges sitting on the panels in the courts for minors had not necessarily had special training on how to deal with cases involving children.", "The report also underlined the following :", "“The majority of those interviewed complained that the legal provisions are not strong enough, leaving the protection of the child to the discretion of the judge and failing to provide for compulsory procedures to be followed. The research produced worrying evidence that not even the existing legal provisions were being fully respected. Hence, situations were described when the child victim or witness was asked to reply to questions ‒ sometimes humiliating ones ‒ addressed directly to them by the defendant ’ s lawyer or even by the defendant himself, even though such questions should always be addressed through the intermediary of the judge. It is not surprising that in such circumstances some children change their statements or even refuse to continue to take part in the proceedings.”", "III. RELEVANT INTERNATIONAL MATERIALS", "A. Council of Europe Sources", "38. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse obliges its signatories to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children. The Convention entered into force on 1 July 2010. Romania ratified the Convention on 28 June 2013. The relevant parts of Chapter VI, “Substantive criminal law” read:", "Article 18 – Sexual abuse", "“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised :", "a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;", "b. engaging in sexual activities with a child where: - use is made of coercion, force or threats; or - abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or - abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.", "2. For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child.", "3. The provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors.”", "39. The Explanatory Report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, of which the Committee of Ministers of the Council of Europe took note on 12 July 2007, provides as follows in its relevant parts:", "“3. ... It is also recognised that children usually experience extreme difficulties in telling anyone about being sexually abused because very often they are violated by a person in their close social or family circle or because they are threatened. ...", "7. Compliance with the CRC [UN Convention on the Rights of the Child] and its Protocols is monitored by the Committee on the Rights of the Child, which has come to the conclusion that children in Europe are not sufficiently protected against sexual exploitation and abuse. In particular the Committee underlines the lack of exhaustive national criminal legislation in this field in the State Parties, ... ”", "40. On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014. The Convention was signed by Romania on 27 June 2014, but has not yet been ratified. The Convention provides as follows in its relevant parts:", "Article 36 – Sexual violence, including rape", "“1 Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised :", "a engaging in non ‐ consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;", "b engaging in other non ‐ consensual acts of a sexual nature with a person;", "c causing another person to engage in non-consensual acts of a sexual nature with a third person.", "2 Consent must be given voluntarily as the result of the person ’ s free will assessed in the context of the surrounding circumstances. ... ”", "Article 49 – General obligations", "“ 1 Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.", "2 Parties shall take the necessary legislative or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences established in accordance with this Convention.”", "Article 54 – Investigations and evidence", "“ Parties shall take the necessary legislative or other measures to ensure that, in any civil or criminal proceedings, evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary.”", "Article 56 – Measures of protection", "“2 A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.”", "41. The Guidelines of the Committee of Ministers of the Council of Europe on child - friendly justice adopted on 17 November 2010 provide the following:", "“1. Member States should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them ....", "17. A common assessment framework should be established for professionals working with or for children (such as lawyers, psychologists, physicians, police, immigration officials, social workers and mediators) in proceedings or interventions that involve or affect children to provide any necessary support to those taking decisions, enabling them to best serve children ’ s interests in a given case.”", "42. Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence recommends that member States adopt and implement, in the manner most appropriate to each country ’ s national circumstances, a series of measures to combat violence against women. Paragraph 35 of the appendix to the recommendation states that, in the field of criminal law, member States should, inter alia :", "“ – penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance; ...", "– penalise any abuse of the position of a perpetrator, and in particular of an adult vis- à -vis a child.”", "B. Other European Sources", "43. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography provides as follows in its preamble:", "“(6) Serious criminal offences such as the sexual exploitation of children and child pornography require a comprehensive approach covering the prosecution of offenders, the protection of child victims, and prevention of the phenomenon. The child ’ s best interests must be a primary consideration when carrying out any measures to combat these offences in accordance with the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child.”", "The Directive also provides in Article 20 paragraph 3 letter c) that interviews with the child victim of sexual abuse are to be carried out by or through professionals trained for this purpose.", "44. A detailed description of the legal provisions and practice in certain European countries concerning the notion of consent in the context of the crime of rape can be found in M.C. v. Bulgaria ( no. 39272/98, §§ 88-100, 4 March 2004 ).", "C. United Nations Sources", "45. The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. The Convention was ratified by Romania on 28 September 1990. The relevant Articles read:", "Article 19", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "Article 34", "“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:", "(a) The inducement or coercion of a child to engage in any unlawful sexual activity;", "(b) The exploitative use of children in prostitution or other unlawful sexual practices; ... ”", "46. The United Nations Committee on the Rights of the Child in its General comment No. 13 (2011) on the right of the child to freedom from all forms of violence recommends that:", "“Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. ( ... ) Towards this end, all parties are obliged to invite and give due weight to the child ’ s views.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "47. Relying on Articles 3, 8 and 6 § 1 of the Convention, the applicant complained that the Romanian authorities had breached their positive obligation to protect her from inhuman and degrading treatment and to protect her right to respect for her private life.", "48. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by an applicant. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Guerra and Others v. Italy [GC], 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). Therefore, having regard to the nature and the substance of the applicant ’ s complaints in this particular case, the Court finds that they fall to be examined primarily under Articles 3 and 8 of the Convention (see M.C. v. Bulgaria, cited above, § 148), which read as follows in their relevant parts:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private ... life ... ”", "A. Admissibility", "49. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "50. The applicant alleged that Romanian law and practice did not provide effective protection of children against rape and sexual abuse. In particular, since the crime of rape required a lack of consent on the victim ’ s part, the applicant complained that, in the absence of any traces of violence on her body and because of the authorities ’ refusal to take into consideration that her attitude regarding the incidents was related to her young age, it had been impossible for her to prove her lack of consent. The applicant maintained that the existence of legislation ‒ open to interpretation ‒ which permitted consideration of the possibility that an eleven-year-old girl might have expressed valid consent to a sexual act with a man forty-one years older than her amounted to a failure of the State to abide by its obligation to undertake measures to protect her integrity and private life. She also stated that, by setting at fifteen the age of consent for sexual intercourse and at the same time limiting the prosecution of rape to cases where the victims had offered resistance, the authorities had left children insufficiently protected against rape.", "51. The applicant further alleged that the investigation conducted by the authorities into her case had lacked effectiveness, since they had based their decisions solely on the statements of the alleged perpetrators and members of their family and had disregarded essential evidence such as her psychiatric examination. No consideration had been given to important factors such as the applicant ’ s young age, her vulnerability, or the special psychological aspects of rape committed against a minor. The applicant emphasised that the domestic courts had attributed greater importance to the forensic medical certificate stating that the applicant had had no signs of violence on her body and had failed to even mention the findings of the psychiatric examination which had concluded that she had showed signs of post-traumatic stress and did not have the capacity to foresee the consequences of her acts.", "( b) The Government", "52. The Government contended that the investigation had been thorough and effective. All possible steps had been taken to gather the necessary evidence and to establish the facts, and in the absence of “direct” proof of rape, the national authorities had taken into consideration all the circumstances of the case. The Government further alleged that, from the examples of domestic practice submitted, certain general principles might be derived. First, when the victim is so young that it is impossible to establish his/her consent to the sexual act, the act is to be classified as rape – for example in cases where the victims are between six and nine years old. Secondly, when the victim is not so young for the act to be automatically classified as rape, but is not yet fifteen and gives her/his consent to the sexual act, the law provides that her/his will is not valid because of the victim ’ s young age and classifies the act as the crime of sexual intercourse with a minor. The domestic courts have made a distinction between the two crimes, holding that the victim ’ s failure to defend herself /himself or to express her /his will must be established on a case - by - case basis and it is possible that a fourteen - year - old girl may find herself unable to express her consent, while a much younger victim may have the capacity to defend herself and express her will.", "53. The Government concluded that, even if domestic law did not specifically set an age limit for a minor ’ s capacity to express valid consent to a sexual act, such a limit was established through the clear practice of the domestic courts. Moreover, even at international level there were no binding instruments setting such an age limit.", "2. The Court ’ s assessment", "( a) General principles", "54. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V; M. and Others v. Italy and Bulgaria, no. 40020/03, § 99, 31 July 2012; and O ’ Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts) ).", "55. Furthermore, positive obligations on the State are also inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State ’ s margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see C.A.S. and C.S. v. Romania, no. 26692/05, § 71, 20 March 2012 ).", "56. In respect of children who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include not only reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge but also effective deterrence against such serious breaches of personal integrity (see M. P. and Others v. Bulgaria, no. 22457/08, § 108, 15 November 2011). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see C.A.S. and C.S. v. Romania, cited above, § 82).", "57. Regarding, more specifically, serious acts such as rape and the sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls to the member States to ensure that efficient criminal law provisions are in place (see, M.C. v. Bulgaria, cited above, § 15 3 ). This obligation also stems from a number of international instruments, such as Chapter VI, “Substantive criminal law”, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse or Articles 19 and 34 of the United Nations Convention on the Rights of the Child (see paragraphs 38 and 45 above).", "58. Concerning such serious acts, the State ’ s positive obligation under Articles 3 and 8 to safeguard the individual ’ s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, among other authorities, C.A.S. and C.S. v. Romania, cited above § 72; M.P. and Others v. Bulgaria, cited above, §§ 109 ‑ 10; and M.C. v. Bulgaria, cited above, § 152) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, C.A.S. and C.S. v. Romania, cited above § 72), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007, and Szula v. the United Kingdom (dec.), no. 18727/06, 4 January 2007).", "59. On the basis of the above principles, the Court has previously found that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions that effectively punish rape and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria, cited above, § 153). In addition, in accordance with contemporary standards and trends in the area, the member States ’ positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim (ibid., § 166).", "( b) Application of the above-mentioned principles to the present case", "60. In the light of the above, the Court ’ s task is to examine whether or not the practice of the domestic courts and the application of the impugned legislation in the case at hand, combined with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State ’ s positive obligations under Articles 3 and 8 of the Convention (see M.C. v. Bulgaria, cited above, § 167).", "61. The issue before the Court is limited to the above. The Court is not concerned with allegations of errors or isolated omissions in the investigation; it cannot replace the domestic authorities in the assessment of the facts of the case, nor can it decide on the alleged perpetrator ’ s criminal responsibility ( ibid., § 168).", "62. The applicant alleged that the authorities ’ attitude in her case was rooted in defective legislation and a predominant practice of not making a context - sensitive assessment of the evidence, more specifically failing to take into account age - specific behaviours, and generally prosecuting perpetrators for rape against minors only where there is evidence of physical resistance.", "63. The Court observes that Article 197 of the Romanian Criminal Code does not mention any requirement of physical resistance by the victim and defines rape in a manner which does not differ significantly from the wording found in statutes of other member States as the Court described them in M.C. v. Bulgaria (cited above, §§ 74 and 88 – 100).", "64. What is decisive, therefore, is the meaning given by the investigative authorities and the courts to words such as “constraint” and “the victim ’ s lack of capacity to express his/ her will” in cases where the victim is under fifteen, the legal age of consent to sexual intercourse.", "65. The Court notes from the examples of case-law submitted by the parties in the present case that the Romanian courts were united in the opinion that a minor victim ’ s consent to sexual intercourse must be determined on a case - by - case basis. However, the issue lies with the courts ’ practice in analysing the existence of consent and their difficulties to adopt a child - sensitive approach in the assessment of the facts of the cases before them. More specifically, the majority of the convictions for rape were adopted in cases involving violence (see paragraph 35 above). In a significant number of cases, the victim ’ s consent to the sexual acts was inferred from facts which were more akin to child - specific reactions to trauma, such as the fact that the victims did not tell their parents or did not scream for help (see paragraph 33 above). In less than half of the examples had the judges ordered psychiatric or psychological examinations of the victims in order to verify the existence of their capacity to give valid consent to the sexual acts (see paragraphs 33, 35 and 36 above). In very few of the cases submitted as examples ‒ four, to be precise ‒ did the courts consider that victims could not have expressed valid consent due to their very young age, ranging from six to twelve years old (see paragraph 34 above). In view of the above, it cannot be concluded that a settled and consistent practice had been developed by the national courts in order to clearly differentiate between cases of rape and those of sexual intercourse with a minor.", "66. Turning to the particular facts of the applicant ’ s case, the Court notes that the Romanian authorities were confronted with two conflicting versions of the events and little direct evidence. The Court does not underestimate the efforts made by the investigators and the prosecutors in their work on the case.", "67. After the primary phase of the investigation, the police forwarded the case to the prosecutor ’ s office for continued investigations into rape. A few months later, the conclusions of a psychiatric evaluation of the applicant ordered by the police were made available to the prosecutor. The report found that the applicant had difficulties in foreseeing the consequences of her acts and, due to her young age, had insufficient discernment. However, based on the statements of the accused, the other four perpetrators and two witnesses who were about the same age as the applicant and were, in addition, related to all the perpetrators, it was assumed that the applicant had given her consent to the sexual acts and J.V. was indicted only for the crime of sexual intercourse with a minor.", "68. The Court further observes that the domestic courts, more specifically the court of first instance and the court of final appeal, endorsed the reasoning put forward by the prosecutor without analysing the conclusions of the psychiatric report ordered during the preliminary investigation. In addition, without explaining why, the domestic courts chose to attach more weight to the statements given by J.V., F.B., P.B. and A.B. and by the two witnesses from their family, thereby concluding that it was the applicant who had provoked J.V. to have sex with her. The other alleged perpetrators were never heard as witnesses before the courts and hence the applicant ’ s allegations that they had threatened to beat her and also threatened her with a knife, or that they might have had an interest in testifying for J.V. had never been examined (see paragraphs 23 and 25 above).", "69. Furthermore, no consideration was given by the courts to the difference in age between the applicant and J.V. or the obvious physical difference between them. The courts also failed to examine whether any reasons existed for the applicant to falsely accuse J.V. of rape.", "70. In addition, the domestic courts failed to demonstrate a child - sensitive approach in analysing the facts of the case and held against the applicant facts that were, in reality, consistent with a child ’ s possible reaction to a stressful event, such as not telling her parents. This approach was aggravated by the fact that no psychological evaluation was ever ordered by the domestic courts for the purposes of obtaining a specialist analysis of the applicant ’ s reactions from the point of view of her age and to determine the existence of possible psychological consequences of the alleged abuse against her.", "71. The Court thus considers that the authorities failed to explore the available possibilities for establishing all the surrounding circumstances and did not assess sufficiently the credibility of the witnesses who had themselves been accused in the case or were related to those accused.", "72. The Court considers that, while in practice it may sometimes be difficult to prove lack of consent in the absence of “direct” proof of rape, such as traces of violence or direct witnesses, the authorities must nevertheless explore all the facts and decide on the basis of an assessment of all the surrounding circumstances. The investigation and its conclusions must be centred on the issue of non-consent (see M.C. v. Bulgaria, cited above, § 181).", "73. That was not done in the applicant ’ s case. Like in the similar case of M.C. v. Bulgaria, cited above, the Court finds in the current case too that the authorities ’ failure to investigate sufficiently the surrounding circumstances was the result of their having attached little or no weight at all to the particular vulnerability of young persons and the special psychological factors involved in cases concerning the rape of minors (ibid. § 183).", "74. To summarise, without expressing an opinion on the guilt of J. V ., the Court finds that the investigation of the applicant ’ s case and, in particular, the approach taken by the national courts, in the context of a lack of a consistent national practice in the field, fell short of the requirements inherent in the States ’ positive obligations to apply effectively a criminal-law system punishing all forms of rape and sexual abuse against children.", "75. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the respondent State ’ s positive obligations under both Articles 3 and 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "77. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. Documents such as a school report and an evaluation of the applicant ’ s emotional state by the child protection services were submitted in support of the allegation that the abuse and the subsequent investigation caused the applicant emotional suffering and negatively affected her school performance. The applicant also mentioned that her suffering had been further aggravated by the fact that she had become pregnant as a result of the abuse.", "78. The Government submitted that the amount claimed was excessive.", "79. The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities ’ approach in the present case. Making an assessment on an equitable basis, the Court awards her EUR 9, 0 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "80. The applicant also claimed EUR 790 for the costs and expenses incurred before the Court. More specifically, EUR 630 (2,860 Romanian lei (ROL) ) in lawyer ’ s fee and EUR 160 (720 ROL ) in translation fees. She submitted invoices in support of these amounts and a contract signed with her lawyer for legal representation before the Court.", "81. The Government stated that the applicant had failed to submit a detailed hourly time sheet in order to justify her lawyer ’ s fee.", "82. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). In the circumstances of the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the lawyer ’ s fee is not excessive. Accordingly, it awards the sum of EUR 790 in respect of costs and expenses.", "C. Default interest", "83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1992 and lives in Cotiglet, Romania. At the time of the events complained of, she was aged fourteen years and four months.", "A. The events of 13 January 2007", "6. On 13 January 2007 the applicant was attending a funeral wake in her village. At around 8 p.m. she went with two girlfriends, P.A. ( ten years old) and Z.F.D. ( fourteen years old) to fetch some drinking water at a neighbour ’ s house. On their way, three boys, M. I. C. ( fifteen years old), M.S. ( fifteen years old) and M.C.S. ( sixteen years old), approached the girls. M. I. C. pulled the applicant ’ s arm behind her back, grabbed her head and told her to go with him. The boys took her into the garden of a nearby deserted building, where a man, M. C. ( twenty-two years old), was waiting.", "7. The three boys left and M. C. pushed the applicant to the ground, partially undressed her and had sexual intercourse with her. In the meantime, another man, A.C.L. ( twenty-six years old), arrived at the scene and tried to have sex with the applicant, but was physiologically incapable. A third man, V.F. ( thirty years old) was also there. He had also intended to have sexual intercourse with the applicant but finally decided to help her get up, clean and dress herself, and accompanied her back to the house where the funeral wake was being held. Twenty minutes later the applicant ’ s father came looking for her and she told him that she had been raped. He immediately alerted the police.", "B. The applicant ’ s subsequent medical condition", "8. The applicant underwent a forensic examination by a doctor on 14 January 2007. According to the subsequent forensic medical report, there were no signs of traumatic lesions on the applicant ’ s body and no sperm could be found either. The forensic doctor found signs of pathology which could have resulted from sexual intercourse. Lastly, the doctor mentioned that the applicant was in a state of anxiety and fear, and he recommended psychological counselling and possibly a neuropsychiatric examination.", "9. On 15 February 2007 the applicant was admitted to the Oradea Psychiatric Hospital. The hospital observation sheet stated that the applicant had sought treatment because she had been raped. She was diagnosed with stress-related anxiety, irritability, a sleep disorder, slight intellectual disability (an IQ of 68) and lice infestation. She was prescribed treatment with anxiolytics and anti-depressives, and was discharged from hospital in a slightly improved condition on 20 February 2007.", "10. On 5 March 2007 an additional forensic medical report was issued at the request of the applicant ’ s father. It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on 13 January 2007. The doctor held that, according to the documents presented by the Oradea Psychiatric Hospital, the applicant ’ s condition had required fourteen days of medical care. No signs of pregnancy had been detected.", "11. On 24 April 2007 the applicant was readmitted to the Oradea Psychiatric Hospital. According to the hospital observation sheet, her state of health was slightly improving but she had started to have headaches. She was discharged from hospital the following day, having been told to continue the initial treatment and to return for further tests at the end of May.", "12. In July 2007 the applicant was again hospitalised in the Oradea Psychiatric Hospital for fourteen days with symptoms including frontal headaches, depression, tearfulness and feelings of social isolation. She was diagnosed with an emotional disorder, a sleep disorder and anaemia, among other conditions. She received treatment with neurotropic drugs, anxiolytics and vitamins. The doctors prescribed further treatment with neurotropic drugs and anxiolytics until a follow-up examination scheduled for September.", "C. The criminal investigation", "13. On 14 January 2007 the applicant, accompanied by her father, lodged a formal complaint with the police. On the same day she made a written statement about the events of the previous day, accusing the three adult men involved in the incident of rape. She also mentioned that, all the way to the deserted house, M.I.C. and M.S. had held her by her arms and neck, not allowing her to leave, and had threatened to beat her if she screamed for help. The police accompanied the applicant and her father to the scene of the incident and took photographs. No objects or other evidence were found.", "14. Later the same day, written statements were given to the police by M.C. and M.I.C. M.C. stated that he had not forced the applicant in any way and he had not been aware that she was under fifteen. He alleged that he had seen the applicant during the wake and had invited her to go with him to the deserted house, which she had done voluntarily. After he had had consensual sex with the applicant, he had left her in the company of M.C.S. and had returned to the wake. M.I.C. denied any involvement in the events, stating that he had not left the house where the wake had been held.", "15. On 15 January 2007 A.C. L., V.F. and M.C.S. gave statements to the police.", "16. A.C.L. stated that on the evening of 13 January 2007 he had been passing by the deserted house when he had heard noises coming from the garden. He decided to go inside to see what was happening. There he met V.F., who told him that M.C. was there with a girl. He saw M.C. on top of the applicant, having sex. After he had finished, M.C. called him to do the same thing. He tried, but was physiologically incapable of having sex so he stood up and put his clothes back on. He left together with M.C., who was waiting for him nearby.", "17. M.C.S. stated that he had seen how M.I.C. had grabbed and twisted the applicant ’ s arm and had left with her from the wake. He had followed them together with M.S., but received a phone call and continued on a separate road.", "18. In his statement, V.F. claimed that he had been at the wake when the applicant ’ s brothers had asked him to help them look for their sister. He left alone and went to the deserted house where he found the applicant with M.C. A.C.L. was also there. At that moment his phone rang so he did not pay attention to the three people. When he finished on the phone he heard the applicant calling him and went to her. She was alone, lying on the ground, undressed from the waist down. He asked her what had happened but she did not say anything. When she asked him to come closer, he started kissing her and wanted to have sex with her, but felt uneasy about it, so he helped her get dressed and clean up the mud on her coat, and accompanied her back to the wake.", "19. On 17 January 2007 the applicant ’ s two girlfriends made statements to the police. They mentioned that M.I.C., M.S. and M.C.S. had approached the applicant, twisted her arm to her back and taken her with them. When she returned to the wake, the applicant did not tell them where she had been. P.A. also stated that she had heard the applicant shouting at the three boys to leave her alone. Z.F. had also seen the three boys surround the applicant and take her with them.", "20. The applicant gave another detailed account of the facts in a statement drafted on 18 January 2007. She repeated that the three boys had forced her to go with them without saying where they were taking her, so she had not known what was going on. Once they arrived at the deserted house, there was M.C. who threatened to beat her if she would not accept to have sex with him. She further clarified that M.C.S. had kept her there by force until M.C. had raped her a second time. Then A.C.L. and V.F. came around and tried to rape her but failed and it was V.F. who had finally helped her leave the scene of the incident. Lastly, she mentioned that she had never had sex before the incident of 13 January and that M.C., A.C.L. and V.F. had known her and had been aware of her age.", "21. M.S. stated to the police on 22 January 2007 that he had heard M.C. asking M.I.C. to take the applicant to the deserted house without telling her why. When the girls came out of the house where the wake was being held, he saw M.I.C. going after them and grabbing the applicant ’ s head, twisting her arm to her back and taking her in the direction of the deserted house. He denied having touched or spoken to the applicant. He had just walked behind her and continued on his way past the deserted house. M.C.S. gave the same account of the facts.", "22. M.I.C. was questioned again on 22 January 2007, when he re ‑ considered his initial statement and told the police that M.C. had asked him, M.S. and M.C.S. to “grab” the applicant and take her to the deserted house. He then admitted having grabbed her by the arms, but claimed that afterwards she had walked along with him voluntarily.", "23. On 6 February 2007 the police took another round of statements from those involved in the events, who reiterated their previous statements. In addition, all the men questioned stated that they knew for a fact that the applicant had had sex before with other men and that they had been unaware of her age at the time.", "24. On 2 March 2007 the case was transmitted to the prosecutor ’ s office attached to the Bihor County Court in order for it to pursue the investigation into the crime of sexual intercourse with a minor.", "25. On 26 April 2007 the applicant gave a statement before the prosecutor and requested that M.C., A.C.L., M.I.C., M.C.S. and M.S. be investigated for rape and complicity to rape.", "26. M.C. and A.C.L. also gave brief statements before the prosecutor. M.C. claimed on this occasion that the applicant was the one who had sent word through M.I.C. that she wished to meet with him. A.C.L. stated that he knew the applicant had already had sex before and she had poor school results.", "27. On 23 May 2007 the prosecutor indicted M.C. for the crime of sexual intercourse with a minor and A.C.L. for attempt to commit the same crime. The prosecutor based the decision on the following facts: the two men declared that they had not forced the applicant in any way; the forensic medical certificate attested to no signs of violence on the applicant ’ s body; and after returning to the wake she had not told her girlfriends what had happened to her. In view of those elements it was considered that the applicant had consented to have sex with M.C. and A.C.L. The witnesses, M.I.C., M.C.S. and M.S., did not know about M.C. ’ s intentions and therefore it was considered that they had no criminal responsibility in the case. The criminal proceedings were discontinued with respect to V.F. because he had not had sexual intercourse with the applicant.", "D. The trial", "28. The Beiuş District Court scheduled a first hearing in the case on 15 June 2007. The applicant stressed before the court that M.C. had twice had sexual intercourse with her without her consent. In support of her allegations, she submitted copies of the medical reports referred to in paragraphs 8 - 11 above. She also claimed civil damages for the suffering caused by the actions of the two defendants.", "29. M.C. testified before the court that, once he had arrived at the funeral wake, M.I.C. had told him that the applicant was waiting for him at the deserted house. When he reached the meeting point, the applicant started kissing him and asked him to go with her to the back of the garden, away from the road. They then lay down on his coat and the applicant started undressing herself. They had sexual intercourse once, which was consensual. He did it because V.F. had told him once that he had had sex with the applicant in the past. Lastly, M.C. mentioned that he had done this before with other girls at other funeral wakes.", "30. A.C.L. reiterated the statements he had given during the investigation. He concluded his testimony before the court with the remark:", "“ ... I was asked by someone in the village whether it was true what happened and whether I was not ashamed of what I had done, but I replied that it was not safe to leave girls alone on the streets.”", "31. On 31 August and 28 September 2007 the court heard statements from the applicant ’ s two girlfriends, as well as from M.I.C. and M.C.S. In her testimony Z.F. claimed that the applicant had been scared when she had returned to the wake. She also mentioned that the applicant was a well ‑ behaved girl who did not go out with boys or go to bars. M.C.S. stated that he had heard the applicant asking M.I.C. to let go of her hand, but the latter had refused.", "32. In his testimony M. I.C. also stated as follows:", "“The next morning we went to the police to give statements and afterwards I asked M.C. what had really happened. He then told me that he had raped her [the applicant]. He did not seem too happy about his actions. We have played this game before at another wake : you must take the girl to a secluded place where she must be kissed by the boy she chooses. When the defendant [M.C.] told me he had raped the victim, he also mentioned that he had kissed her. ”", "33. On 12 October 2007 the Beiuş District Court convicted M. C. of sexual intercourse with a minor and gave him a suspended sentence of one year and four months. A.C.L. was convicted of attempted sexual intercourse with a minor and given a suspended sentence of one year.", "34. In reaching its decision the court firstly observed that the forensic medical report indicated that no signs of violence had been detected on the victim ’ s body. The court further established the course of the events on the evening of 13 January 2007 as described by M.I.C., M.C.S. and M.S. It cited the parts of the statements given by the applicant ’ s two girlfriends in which they had mentioned that the applicant had not cried for help. Lastly, the court concluded that the two defendants ought to have known that the injured party was under the age of fifteen. The court did not address the applicant ’ s statement, the medical reports attesting to her medical condition or her requests for the incident to be examined as rape. It rejected her claim for civil damages, considering that the medical conditions described in the forensic reports had no connection with the incident at issue. In addition, it had come to light from witness statements that the applicant had had sex before the impugned incident.", "35. All parties to the trial, including the applicant represented by her lawyer, appealed against the decision of the Beiuş District Court. In her reasons for appeal the applicant claimed that the sexual abuse committed against her could only be classified as rape. She asked the court to extend the examination of the case to M.I.C., M.C.S. and M.S., whom she considered accomplices to rape. Lastly, the applicant considered that the medical reports submitted clearly attested to the suffering she had endured and therefore the court had erred in rejecting her claim for damages.", "36. On 27 February 2008 the Bihor County Court decided to increase the sentences imposed on the two defendants to three years ’ imprisonment for M.C. and eighteen months ’ imprisonment for A.C.L. The decision of the Beiuş District Court concerning the classification of the crime and the suspension of the execution of the sentences was upheld. The County Court also decided to award the applicant 2,000 Romanian lei (RON ) ( approximately 600 euros (EUR) ) in respect of non-pecuniary damage. In reply to the applicant ’ s reasons for appeal, the court reasoned :", "“It must be mentioned that the victim tried to convince the court that, in fact, she had not agreed to have sexual intercourse with the two defendants and that she had been the victim of a rape, but these allegations had not been proved in any way. Hence, the witnesses Z.F. and P.A. ... stated that ... the injured party had not cried for help ... and had not told them what had happened. ...", "It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape, since she displayed no signs of post ‑ traumatic injury on her body .”", "37. An appeal on points of law ( recurs ) lodged by the applicant against that judgment was rejected as ill-founded on 8 May 2008 by the Oradea Court of Appeal. The court declared briefly that by corroborating the victim ’ s statement with the forensic medical report of 14 January 2007, the existence of a crime of rape had been excluded in the case." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "38. Excerpts of the relevant legal provisions, as well as the relevant practice of the domestic courts, are detailed in M.G.C. v. Romania (no. 61495/11, §§ 30-37, 15 March 2016, not final ).", "39. In addition, the Government submitted Decision no. 1037 of 5 April 2012 taken by the High Court of Cassation and Justice in the case of the sexual abuse of a fourteen- year - old girl by three men in conditions similar to the ones in the current case. The High Court upheld the defendants ’ conviction for rape, reasoning as follows:", "“In order to establish the facts, the court took into account the following evidence: the statements given by the victim, the defendant B.A., the witnesses ...; the statements given by P.D., R.C., and A.F. as defendants; the report on the examination carried out on the victim and on the material evidence as revealed in judicial photographs; the examination of the crime scene in the presence of the defendants accompanied by photographs and an orientation plan; the forensic medical certificate ...; the investigation conducted by the social services and the school report; the psychiatric forensic examination; the report about the examination of the crime scene in the presence of the witness P.D. with photographs; the polygraph test report ...", "Based on the evidence produced before the first - instance court, it has been correctly held that there had been no direct coercion of the victim. However, this situation is irrelevant for the verdict on the existence of the crime of rape. The defendant took advantage of the victim ’ s inability to defend herself, since any possibility of riposte was annihilated by the actions of the other aggressors [who had sexual intercourse with the victim before the defendant] ...", "The victim ’ s young age and psychological vulnerability [limited intellectual capacity] ... in the context of the events, namely during the night, in a secluded area, in a low temperature, the victim being scantily dressed, were all elements capable of placing her in a situation in which any opposition would have failed.”", "III. RELEVANT INTERNATIONAL MATERIAL", "40. A detailed description of the relevant international material concerning sexual violence against children and women can be found in M. G. C. v. Romania (cited above, §§ 3 8- 46 ).", "41. As regards people with disabilities, on 2 February 2005 the Committee of Ministers of the Council of Europe adopted the Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse. The Resolution recognizes that abuse against people with disabilities may also take the form of sexual abuse and exploitation, including rape, sexual aggression, indecent assault or indecent exposure. In this respect it reads as follows:", "“These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘ abuse ’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners. ...", "They should encourage cooperation between authorities and organisations in finding measures to prevent abuse, to improve detection and reporting of abuse, and to support the victims.”", "42. The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society read as follows:", "“Persons with disabilities constitute a varied population group, but all have in common ... the need for additional safeguards in order to enjoy their rights to the full ... There are indicators that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population, and higher in women with disabilities ...", "While governments cannot guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards. .. Persons with disabilities who experience abuse or violence should have access to appropriate supports. They must have a system in which they can have sufficient confidence to report abuse and expect follow-up action, including individual support. Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse.”", "43. The United Nations Special Rapporteur on Disability stated the following in her 2006 report on the question of monitoring the situation of people with disabilities :", "“2. People with developmental disabilities are particularly vulnerable to human rights violations. Also, people with disabilities are rarely taken into account, they have no political voice and are often a sub group of already marginalized social groups, and therefore, have no power to influence governments. They encounter significant problems in accessing the judicial system to protect their rights or to seek remedies for violations; and their access to organizations that may protect their rights is generally limited. While non-disabled people need independent national and international bodies to protect their human rights, additional justifications exist for ensuring that people with disabilities and their rights be given special attention through independent national and international monitoring mechanisms.”", "44. In the context of the Convention on the Rights of Persons with Disabilities the United Nations had published the following relevant findings:", "“Persons with disabilities are more likely to be victims of violence or rape, according to a 2004 British study, and less likely to obtain police intervention, legal protection or preventive care.", "Research indicates that violence against children with disabilities occurs at annual rates at least 1.7 times greater than for their non-disabled peers.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "45. The applicant complained that the Romanian authorities had not investigated her allegations of rape effectively and had breached their positive obligation to protect her from inhuman and degrading treatment.", "The relevant Convention provisions read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private ... life ... ”", "A. Admissibility", "46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "47. The applicant submitted that the authorities had not investigated her allegations of rape effectively. As there had been no physical evidence of assault, the criminal justice system had been more inclined to believe the perpetrators, showing no concern for the need to protect her as a minor. Discrepancies in the evidence had been disregarded and undue emphasis placed on the absence on her body of any signs of physical violence and on her lack of resistance to the perpetrators. The authorities failed to take into consideration her young age and her physical and psychological condition or the fact that six adult men had participated in her abuse. This approach intensified her feelings of humiliation, anguish and frustration without rendering an effective conviction.", "48. The severe consequences of this situation on the applicant ’ s state of mind had been documented by the medical reports submitted during the domestic proceedings, as well as before the Court.", "49. The Government contended that the investigation had been thorough and effective. All possible steps had been taken to gather the necessary evidence and to establish the facts, and in the absence of “direct” proof of rape, the national authorities had taken into consideration all the circumstances of the case. The authorities had not found it established that rape had been committed. The applicant had given conflicting testimony while the perpetrators had presented a constant position throughout the investigation. She had agreed to accompany the boys to the deserted house and had not asked for help. In addition, the difference in age between the applicant and the perpetrators was not significant.", "50. The Government further argued that from the examples of domestic practice as already submitted in the case of M.G.C. v. Romania (cited above), it was obvious that the domestic courts were not requiring proof of physical violence in order to establish the existence of rape and that the victim ’ s resistance was not considered an important element in the analysis of such cases. When a victim was not young enough for the act to be automatically classified as rape, but was under the age of fifteen and gave her/his consent to the sexual act, the law provided that the victim ’ s will was not valid because of her young age and classified the act as the crime of sexual intercourse with a minor. The domestic courts have made a distinction between the two crimes, holding that the victim ’ s failure to defend herself/himself or to express her/his will must be established on a case-by-case basis. A fourteen-year-old girl might find herself unable to express her consent, whereas a much younger victim might have the capacity to defend herself and express her will.", "2. The Court ’ s assessment", "(a) General principles", "51. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see I.G. v. Moldova, no. 53519/07, § 40, 15 May 2012). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see M.C. v. Bulgaria, cited above, § 150 ). In the case of people in a vulnerable position, including people with disabilities, the Court held that the authorities must show particular vigilance and afford increased protection in view of the fact that such individuals ’ capacity or willingness to pursue a complaint will often be impaired (see B. v. Romania, no. 42390/07, § 50, 10 January 2012).", "52. On that basis, the Court considers that States have a positive obligation inherent in Article 3 of the Convention to enact criminal-law provisions that effectively punish rape and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria, no. 39272/98, § 153, 4 December 2003 ). In addition, in accordance with contemporary standards and trends in this area, member States ’ positive obligations under Articles 3 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim (ibid., § 166).", "(b) Application of the above-mentioned principles to the present case", "53. The Court notes that the authorities in the current case were confronted with two conflicting versions of the events. The applicant alleged that she had been raped on the evening of 13 January 2007. However, the six men involved in the incident claimed that she had consented to having sexual intercourse that evening. Therefore, the authorities ’ central task in this case was to determine whether the sexual intercourse had been consensual.", "54. In similar cases the Court has already held that the presence of two irreconcilable versions of the facts obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances (see M.C. v. Bulgaria, cited above, § 177). That could be done by questioning people known to the applicant and the perpetrators, such as friends, neighbours, teachers and others who could shed light on the trustworthiness of their statements or by seeking an opinion from a specialist psychologist (see I.G. v. Moldova, cited above, § 43). In this context, the authorities could also verify whether any reasons existed for the victim to make false accusations against the alleged perpetrators. However, the Court observes that none of the above was done at any stage of the investigation and trial in the current case.", "55. The Court further observes that international materials on the situation of people with disabilities point out that the rate of abuse and violence committed against people with disabilities is considerably higher than the rate for the general population (see paragraphs 42-44 above). According to medical documents dated 15 February 2007 the applicant had been diagnosed with slight intellectual disability. In this context, the nature of the sexual abuse against her was such that the existence of useful detection and reporting mechanisms were fundamental to the effective implementation of the relevant criminal laws and to the applicant ’ s access to appropriate remedies (see, mutatis mutandis, Juppala v. Finland, no. 18620/03, § 42, 2 December 2008). Indeed the Court is of the view that failure to properly investigate or provide appropriate judicial response to complaints of sexual abuse against children or other vulnerable persons such as persons with intellectual disabilities creates a background of impunity which may be in breach of the State ’ s positive obligations under Article 3 of the Convention.", "56. In such circumstances, the Court considers that the applicant ’ s intellectual disability, confirmed by medical documents, placed her in a heightened state of vulnerability and required both the investigative authorities and the domestic courts to show increased diligence in analysing the applicant ’ s statements (compare B v. Romania, cited above, § 57). Moreover, particular attention should have been also focused on analysing the validity of the applicant ’ s consent to the sexual acts in the light of her intellectual capacity. However, it appears that none of the personal circumstances of the applicant, such as her age and her mental and physical development or the circumstances in which the incident took place – at night, in cold weather, as well as the number of men who took part in it – were considered by the prosecutors or the judges deciding on this case.", "57. The conclusions drawn by the prosecutor and the domestic courts appear to have been based only on the statements given by the alleged perpetrators, taken together with the fact that the applicant ’ s body showed no signs of violence and that she had not called for help or immediately told her girlfriends about the alleged abuse (see paragraphs 34 and 36 above). The Court notes in this context the multitude of investigative steps conducted in the example of domestic case-law submitted by the Government (see paragraph 39 above).", "58. In view of the above elements, the Court considers that the authorities put undue emphasis on the absence of proof of resistance from the applicant and they failed to take a context - sensitive approach in the current case (see M.C. v. Bulgaria, cited above, § 182). The authorities ’ conduct was aggravated by the fact that no psychological evaluation was ever ordered by the domestic courts for the purposes of obtaining a specialist analysis of the applicant ’ s reactions from the point of view of her age. At the same time, the extensive medical evidence of the trauma suffered by the applicant following the incident at issue was not considered by the authorities at all.", "59. Lastly, the Government claimed, among other arguments, that the applicant had given conflicting statements to the authorities. However, the Court notes that in the statements she gave throughout the investigation and trial, the applicant had merely clarified her initial statement, given immediately after the incident. The ones who appear to have re-considered their statements were M.C. and M.I.C. (see paragraphs 14, 22 and 26 above). Nevertheless, it is not clear from the case file whether the authorities took any steps to verify their credibility or the course of the events as described by the two men.", "60. In view of the above, without expressing an opinion on the guilt of M.C., A.C.L. and V.F., the Court finds that the investigation of the applicant ’ s case fell short of the requirements inherent in the States ’ positive obligations to apply effectively a criminal-law system punishing all forms of rape and sexual abuse.", "61. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. In view of this conclusion, the Court also holds that no separate issue arises under Article 8 of the Convention (see I.G. v. Moldova, cited above, § 45).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "62. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "63. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage.", "64. The Government submitted that the amount claimed was excessive.", "65. The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities ’ approach in the present case. Making an assessment on an equitable basis, the Court awards her EUR 12 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "66. The applicant did not claim costs or expenses. Accordingly, the Court does not make any award under this head.", "C. Default interest", "67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1971 and lives in Helsinki.", "6. The applicant and her partner began to cohabit in 2003. Their daughter was born in November 2004. In the spring of 2006 the applicant felt that, in her view, the child ’ s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child ’ s safety as the father was, in her view, violent. In May 2006 the applicant and her daughter left the child ’ s father.", "A. First set of proceedings concerning custody and contact rights", "7. In July 2006 the child ’ s father initiated custody and contact rights proceedings vis-à-vis his daughter.", "8. In August 2006 the Kouvola District Court ( käräjäoikeus, tingsrätten ) gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. This arrangement continued for about a year but was disrupted for some time in 2 007. According to the applicant, the child was often restless and talked strangely after the meetings with her father.", "9. On 15 June 2007 the Kouvola District Court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision.", "10. On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights.", "11. On 4 September 2007 the Kouvola District Court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. The meetings were, however, temporarily discontinued for the duration of the pre-trial investigation (see below). On 9 January 2008 the Kouvola Appeal Court upheld the District Court ’ s decision.", "B. First involvement of the child welfare authorities and the police", "12. The applicant claimed that after the third unsupervised visit with the father in August 2007, her almost three-year-old daughter ’ s behaviour changed radically and she was showing strong symptoms. The child was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. She kept repeating these issues and suffered from increasingly bad nightmares. The applicant contacted a child psychiatrist. On 16 August 2007 she contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse.", "13. On 29 August 2007 the child welfare authorities reported the matter to the police. They recommended that the meetings with the father be discontinued for the duration of the investigation.", "14. On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. On 14 September 2007 the Forensic Child and Adolescent Psychiatry Centre received an official request for assistance from the Helsinki Police Department. At the time the child was two years and ten months old. The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more.", "15. On 20 September 2007 a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. The pre-trial investigation was concluded on 15 October 2007 as there was no appearance of any crime.", "16. After having received information about the conclusion of the pre ‑ trial investigation, the applicant contacted the Forensic Child and Adolescent Psychiatry Centre on 18 October 2007 and expressed her surprise that no psychological assessment had been conducted in the matter.", "17. In a telephone conversation of 19 October 2007 the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised. The social worker in turn explained to the applicant that the pre ‑ trial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child. Moreover, concerning the visiting rights, the social worker explained that the decision of 4 September 2007 by the Kouvola District Court was still in force and that if the applicant was not satisfied with it, she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities. However, the applicant insisted on making the second report to the child welfare authorities, claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father. The father of the child received information about this report from the police.", "C. Further involvement of the child welfare authorities and the police", "18. On 18 January 2008 the applicant submitted another child welfare report and the second report to the police, insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child ’ s father. She also reported the matter to the social workers in Helsinki.", "19. On 25 and 28 January 2008 respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly. No somatic signs or symptoms of sexual abuse were found.", "20. The Kouvola Police Department started to investigate the matter. As the applicant had taken the child to a doctor on 25 and 28 January 2008, no new physical examination was carried out. The pre - trial investigation was concluded on 4 May 2008 as there was no appearance of any crime.", "D. Administrative complaints", "21. On 18 February 2008 the applicant lodged a complaint with the National Authority for Medico-legal Affairs ( Terveydenhuollon oikeusturvakeskus, Rättsskyddscentralen för hälsovården ) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office ( lääninhallitus, länsstyrelsen ).", "22. On 18 February 2008 the applicant also lodged a complaint with the Parliamentary Ombudsman ( eduskunnan oikeusasiamies, riksdagens justitieombudsman ), asking him to investigate why the police did not hear her child during the pre-trial investigation.", "23. On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police (see paragraph 20 above). He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals.", "24. On 24 November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year age ‑ limit for child psychiatric interviews was only a recommendation. The child had only been two years and ten months old at the time of the first police investigation. No new physical examination had been carried out during the second pre-trial investigation as such an examination had been carried out on 25 and 28 January 2008. The Office decided to take no action in the applicant ’ s case.", "E. Defamation proceedings", "25. On an unspecified date, the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on 19 October 2007, claiming that the child was in danger of being sexually abused by her father during their upcoming meetings (see paragraph 17 above). He claimed that these allegations were not true and that the applicant ’ s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child.", "26. On 17 February 2009 the Public Prosecutor pressed charges against the applicant for having insisted on 19 October 2007 that the child was in danger of being sexually abused by her father after the police had already investigated the matter and, on 15 October 2007, found no appearance of any crime.", "27. On 11 September 2009 the Helsinki District Court convicted the applicant of defamation and sentenced her to 45 day-fines, amounting to 630 euros (EUR). She was ordered to pay the father EUR 1,000 in non ‑ pecuniary compensation and his costs and expenses amounting to EUR 1,885.66. The court ’ s reasoning was the following:", "“ The insinuation made by M.P. and referred to in the charges cannot be understood to refer to any other person than [the father of the child] and it was made in a situation in which M.P. knew about the decision of the Helsinki Police Department to stop investigating the suspected sexual abuse of a child, which investigation had been initiated solely on the basis of the information submitted by her. According to the decision, the investigation did not reveal any such evidence on the basis of which the threshold of “ reason to suspect ” would have been attained. The decision refers to the somatic examination of the child, requested by the police and conducted on 20 September 2007 by a specialist in paediatrics at which M.P. was also present. According to the medical certificate, the girl ’ s somatic status was normal and there were no external signs of sexual abuse.", "From the medical certificate of 15 October 2008, which was admitted as written evidence, it appears that the meetings between the father and the child had been supervised until 16 June 2007 and that thereafter until the filing of the police report on 29 August 2007 and the freezing of the meetings, there had been unsupervised day meetings only three times, lasting four hours each. [The father of the child] stated that out of these few meetings one meeting had taken place in an amusement park, which was not disputed by M.P. M.P. stated that the sexually - coloured talk of the child had started already during the supervised visits. At that time the child was less than three years old.", "On the sole basis of the meeting circumstances and the medical examination, M.P. could not have had strong grounds to consider that her insinuation of the crime was true, even if the child had said what she was alleged to have said. Nor could the child ’ s other, more general symptoms have given sufficient confirmation of her insinuation.", "When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child ’ s father] and that its content, being almost of the worst kind, was bound to cause him suffering.", "...", "Ignorance of legal provisions does not eliminate the punishability of an act. Taking into account what has been said above about the circumstances of the case and the nature of the criminal insinuation, there is no basis for considering that M. P. ’ s act could be regarded as manifestly excusable due to a mistake.", "On the basis of the grounds expressed above, the District Court considers that M.P. did not have any such reasons to make an insinuation towards [the father of the child] that she would have had a reasoned ground to do so without defaming him. ”", "28. By letter dated 12 October 2009 the applicant appealed against the judgment of the District Court to the Helsinki Appeal Court ( hovioikeus, hovrätten ). She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre-trial investigation. Her concerns were not directed at the father but at the fact that a danger to the child ’ s health still existed. It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse. Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre - trial investigation. She considered this mistake to be so substantial that the danger to her child ’ s health still existed despite the outcome of the investigation. She also referred to the case Juppala v. Finland, no. 18620/03, 2 December 2008.", "29. On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. The court found the following:", "“ On the basis of the oral hearing held, the Appeal Court has no reason to assess the evidence differently than the District Court. The acts committed by M.P. [ ... ] fulfil the constituent elements of defamation, criminalised by Chapter 24, section 9, of the Penal Code. The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements, as appears from the Supreme Court precedent 2006:10. M.P. [ ... ] did not have sufficiently strong grounds to hold the information true in a situation where [she] knew that the pre- trial investigation into [the child ’ s father] had terminated. Although child protection considerations have to be taken into account, a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right. M.P. has considered that she is free from criminal liability under Chapter 4, section 2, of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials. The pre ‑ trial investigation had, however, been started solely on the basis of information given by M.P. and this investigation was already terminated, M.P. being aware of it, before the commission of the present act. Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act. Nor is there any reason to change the District Court judgment as far as the conviction is concerned.”", "30. By letter dated 7 March 2011 the applicant appealed to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already presented before the Appeal Court.", "31. On 14 December 2011 the Supreme Court refused the applicant leave to appeal.", "F. Second set of proceedings concerning custody and contact rights", "32. On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him.", "33. On 25 January 2011 the Helsinki District Court ordered that the child was to live with her father in Kouvola. This decision was upheld by the Helsinki Appeal Court on 2 December 2011. On 11 May 2012 the Supreme Court refused the applicant leave to appeal.", "34. The applicant has complained to the Court about these proceedings in a separate application (see application no. 71785/12 M.P. and E.B. v. Finland ) which was declared inadmissible on 17 April 2014.", "G. Most recent administrative appeals", "35. On an unspecified date the applicant asked the Ministry of the Interior ( sisäasiainministeriö, inrikesministeriet ) to investigate whether the decision not to hear the child was acceptable. On 7 May 2012 the Ministry of the Interior transferred the matter to the National Police Board ( Poliisihallitus, Polisstyrelsen ).", "36. On 3 August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre - trial investigation without leaving any issues unclarified." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "37. The Finnish Constitution ( Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:", "“Article 10 – The right to privacy", "Everyone ’ s private life, honour and the sanctity of the home are guaranteed. ...", "...", "Article 12 – Freedom of expression and right of access to information", "Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”", "38. Chapter 24, section 9, subsections 1 and 2, of the Penal Code ( rikoslaki, strafflagen, Act no. 531/2000) provided, at the relevant time, as follows :", "“A person who", "1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or", "2) disparages another person in a manner other than referred to in point 1", "shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months.", "Criticism that is directed at a person ’ s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.”", "39. The above-mentioned provision was amended in 2013 (Act no. 879/2013). The amended provision entered into force on 1 January 2014 and reads currently as follows:", "“ A person who", "1) spreads false information or a false insinuation of another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or", "2) disparages another in a manner other than referred to in point 1)", "shall be sentenced for defamation to a fine.", "Also a person who spreads false information or a false insinuation about a deceased person, so that the act is conducive to causing suffering to a person to whom the deceased was particularly close, shall be sentenced for defamation.", "Criticism that is directed at a person ’ s activities in politics, business, public office, public position, science, art or in comparable public activity and that does not obviously exceed the limits of propriety does not constitute defamation referred to in subsection 1, point 2).", "Presentation of an expression in the consideration of a matter of general importance shall also not be considered defamation if its presentation, taking into consideration its contents, the rights of others and the other circumstances, does not clearly exceed what can be deemed acceptable. ”", "40. The relevant provisions of the Child Welfare Act ( lastensuojelulaki; barnskyddslagen, Act no. 683/1983) and the domestic practice are outlined in the Court ’ s judgment in Juppala v. Finland, cited above, §§ 19-22.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "41. The applicant complained under Article 10 of the Convention of a violation of her freedom of expression.", "42. Article 10 of the Convention reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "43. The Government contested that argument.", "A. Admissibility", "44. The Court notes that the applicant ’ s complaint under Article 10 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "45. The applicant argued that she had been convicted on the basis of one telephone conversation with a social worker on 19 October 2007. She had been convicted of something that was not a crime in Finland, but a duty. The Juppala case (see Juppala v. Finland, cited above ) should have been taken into account in the domestic proceedings. The applicant had had an even greater duty to help her child than the grandmother in the Juppala case as, according to Finnish law, a parent had a duty to protect a child who was in their custody. In this case it had been the social authorities themselves who had made the first report to the police. When it had become clear that the child was not heard, the applicant had the duty to continue demanding a better examination of the case. This duty continued as long as there was a concern and no alternative explanation had been provided for the child ’ s symptoms, and no such explanation was ever provided in the present case. The social authorities had been the correct and only authorities to help the child.", "46. The applicant maintained that she had been communicating only with authorities acting under professional secrecy and that she had been correct with the child ’ s father. She could not have committed any crime simply by seeking help and proper examination of her child ’ s case, as that was her duty. She had acted in good faith and on the advice of a social worker. Therefore the applicant ’ s right to freedom of expression had been seriously violated when she was convicted of defamation.", "(b) The Government", "47. The Government found it uncontested that the applicant ’ s conviction for defamation and the liability to pay damages had amounted to an interference with her right to freedom of expression under Article 10 of the Convention. The impugned measures had had a basis in domestic law, namely in Article 12 of the Constitution and Chapter 24, section 9, of the Penal Code. The interference had thus been “prescribed by law”. The impugned measures had also pursued the legitimate aim of protecting the private life and reputation of the child ’ s father.", "48. The Government noted that, according to the Appeal Court, the applicant had not presented any evidence showing that she had reason to consider that the information she had disclosed about the child ’ s father to the child welfare authorities was true. This was especially so as the applicant had known that the pre-trial investigation had just been concluded and that this investigation had not found any evidence to support her allegations. The pre-trial investigation had been conducted only on the basis of the applicant ’ s allegations.", "49. The Government argued that the present case differed crucially from the case Juppala v. Finland. In the latter case the applicant had clearly seen the child ’ s bruised body, she had acted in good faith and was thus entitled to use the reporting system without any potential “chilling effect” of a criminal prosecution, whereas in the present case the applicant had already used the reporting system and a careful pre-trial investigation had been concluded in the matter with no results. The Government maintained that the applicant could not be considered as having acted in the same kind of good faith as the applicant in the Juppala case, as there were no veritable signs or symptoms supporting her allegations. Moreover, the Appeal Court had examined the case as a whole and taken into account the applicant ’ s particular status in sentencing. The national authorities were thus entitled, in the circumstances of the case, to interfere with the applicant ’ s right to freedom of expression and that interference was proportionate and necessary in a democratic society. There was thus no violation under Article 10 of the Convention.", "2. The Court ’ s assessment", "50. It is common ground between the parties that the applicant ’ s conviction constituted an interference with her right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Moreover, the Government argued that the impugned measures were “prescribed by law” as they had a basis in domestic law, namely in Article 12 of the Constitution and Chapter 24, section 9, of the Penal Code, and that the interference also pursued the legitimate aim of protecting the private life and reputation of the father of the child. The applicant did not submit any observations in this respect. The Court accepts that the applicant ’ s criminal conviction was based on a reasonable interpretation of the Penal Code, and that the interference was thus “prescribed by law” (see Juppala v. Finland, cited above, § 40; Nikula v. Finland, no. 31611/96, § 34, ECHR 2002 ‑ II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004; and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 ‑ X). It also pursued the legitimate aim of protecting the private life and reputation of the father of the child.", "51. The Court recalls that an interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In its assessment, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Nikula v. Finland, cited above, § 44). The Court recalls that the quality of judicial review in respect of the necessity of the measure is of particular importance in the context of the proportionality assessment under Article 10 of the Convention (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts) ). The margin of appreciation in this context is measured by reviewing the extent to which the reasoning of the national courts engages with the general principles under Article 10 and the extent to which the balance struck between the competing rights at the domestic level is satisfactory (see Erla Hlynsdόttir v. Iceland (no. 3), no. 54145/10, § 59, 2 June 201 5; and Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 67, ECHR 2012 ). In exercising its supervisory function, the Court must look at the impugned interference in the light of the case as a whole including, in this case, the content of the declarations held against the applicant and the context in which they were made.", "52. This case calls into consideration two countervailing interests, each of which are of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unwarranted interference with their right to respect for their private and family life or the risk of unjustified arrest and prosecution. The first of these interests involves protection of children as actual or possible victims of crime. The Court has emphasised that children and other vulnerable individuals in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 21 - 27, Series A no. 91; Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62 - 64, Reports of Judgments and Decisions 1996 ‑ IV; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37). The Court would refer, in particular, to the case of A. v. the United Kingdom (23 September 1998, § 22, Reports 1998 ‑ VI) where a stepfather had subjected a child to treatment contrary to Article 3 and was acquitted, having argued that the treatment amounted to “reasonable chastisement”. The Court held in that case that the obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, required States to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals.", "53. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. Child abuse is indeed a challenging form of criminal conduct to combat, because its existence is difficult to uncover. Babies and young children are unable to tell, older children are often too frightened. The issue in connection with the present application is about striking a proper balance between the need to protect children against the risk of potentially serious harm and the need to protect a parent against being wrongly suspected of having abused his or her child.", "54. The Court notes that the applicant first contacted the child welfare authorities and voiced her concerns about the child and her suspicions of sexual abuse while the parents were engaged in a dispute relating to the custody and contact rights in respect of the child. Following the applicant ’ s first contact in mid-August 2007, the child welfare authorities decided to report the matter to the police for investigation. A pre-trial investigation was conducted but it was concluded with the finding that there was no appearance of any crime. After having been informed of this conclusion, the applicant again contacted the child welfare authorities on 19 October 2007, insisting on another investigation. It was in respect of her second appeal to the authorities to pursue a criminal investigation against the father of her child that the applicant was later charged and convicted of defamation. The applicant ’ s third report regarding suspicions of sexual abuse of her child, addressed to the police on 18 January 2008, is not the subject of the present case.", "55. The seriousness of child abuse as a social problem requires that persons who act in good faith (see Juppala v. Finland, cited above, § 42; and, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008), in what they believe are the best interests of the child, should not be influenced by the fear of being prosecuted or sued when deciding whether and when their doubts should be communicated to health care professionals or social services. There is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. The duty toward the child in making these decisions should not be hampered by a risk of exposure to claims by a distressed parent if the suspicion of abuse proves unfounded. On the other hand, it is justified that acts motivated by a personal grievance or antagonism or an expectation of personal advantage be discouraged, including in the context of disputes relating to the custody or visiting rights concerning a child.", "56. In the Juppala case the Court noted that the possibility to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure, should be available to any individual without the potential “chilling effect” of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred (see Juppala v. Finland, cited above, § 43). In this connection, the Court notes and welcomes the amendment made by the Finnish authorities in Chapter 24, section 9, of the Penal Code by which the possibility of imposing imprisonment for defamation was removed from penal sanctions available under that provision (see paragraph 39 above).", "57. In the present case, the Court cannot overlook the fact that according to the findings of the domestic courts, the applicant did not – following the closure of the pre-trial investigation that had been carried out on the basis of her first report of suspicions of abuse – have a sufficient factual basis for allegations of criminal conduct by her child ’ s father. Nor can the Court disregard the fact that the applicant ’ s allegations had been raised while a dispute over the custody and visiting rights of the child was pending before the courts. While the Court is not in a position to enter into any assessment of its own regarding the facts of the case, nor is it its role to do so, or to speculate about the motives involved in the events that preceded the defamation proceedings which are the subject of the applicant ’ s complaint, the Court notes the following circumstances in particular.", "58. Firstly, the criminal charge against the applicant was based solely on statements made by her in a single telephone conversation with an official of the child welfare services, who herself was subject to obligations arising from professional secrecy. Secondly, while the charge and conviction were based on an unsubstantiated allegation that the child was at risk of being sexually abused by the father, the evidence as recorded in the judgment of the District Court does confirm, inter alia, that the applicant had expressed the concern that the pre-trial investigation had been inadequate as the child herself had not been interviewed because of her young age.", "59. The Court must look not only at the content of the interference complained but also at the context in which it was made (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 69, ECHR 2004 ‑ XI). Article 10 of the Convention protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Nikula v. Finland, cited above, § 46). In the present case, the context of the interference with the applicant ’ s Article 10 rights was the confidential telephone conversation with a public official. The Court does not find it irrelevant, as did the Appeal Court, that the insinuation was made to a public official who was bound by confidentiality but, on the contrary, finds that this fact is relevant to the assessment of the proportionality of the interference (see Yankov v. Bulgaria, no. 39084/97, § 141, ECHR 2003 ‑ XII (extracts) ).", "60. Moreover, the Court does not find that bringing criminal charges against the applicant and convicting her for defamation was a course of action that can be considered proportionate with a view to the requirements of Article 10 of the Convention. Although the applicant was only punished by a fine, the Court is unable to accept in the present case that there was any “pressing social need” to interfere with the applicant ’ s freedom of expression by imposing a criminal sanction on her.", "61. Under these circumstances, the Court finds that the reasons relied on by the domestic courts were not relevant and sufficient to show that in the present case the interference complained of was “necessary in a democratic society”. Having regard to all the foregoing factors, and taking into account the margin of appreciation afforded to the State in this area, the Court considers that the domestic authorities failed to strike a fair balance between the competing interests at stake.", "62. There has therefore been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "63. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "64. The applicant claimed 43, 182. 49 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.", "65. The Government considered that the pecuniary damage listed by the applicant as “other costs which were the direct consequences of the case” in the amount of EUR 35,180.63 should be rejected in full whereas the remaining pecuniary damage of EUR 8,001.86 plus interest could be accepted. As to the non-pecuniary damage, the Government considered that compensation in the special circumstances of the present case should not exceed the amount of EUR 2,500.", "66. The Court finds that there is a causal link between the violation found and the pecuniary damage alleged in the amount of EUR 8,001.86; it therefore accepts this claim and awards the applicant EUR 8,001.86 as compensation for pecuniary damage. As to non-pecuniary damage, it awards the applicant EUR 5,000.", "B. Costs and expenses", "67. The applicants also claimed EUR 19,040.63 for the costs and expenses incurred before the domestic courts and EUR 19,500 for those incurred before the Court.", "68. The Government considered that, as far as the costs and expenses incurred before the domestic courts were concerned, the applicant ’ s claim should be rejected in full by virtue of Rule 60 of the Rules of Court due to the lack of any itemisation. As to the costs and expenses incurred before the Court, the Government estimated the applicant ’ s claims as excessive as to quantum and considered that reasonable compensation should not exceed EUR 3,900 (inclusive of value-added tax).", "69. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings for the lack of itemisation and considers it reasonable to award the sum of EUR 6,000 (inclusive of value ‑ added tax) for the proceedings before the Court.", "C. Default interest", "70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1997.", "5. Following the death of her grandmother in 2010 the applicant, who was a minor at the time, began to show signs of distress. Her parents sought the opinion of a psychiatrist, who emphasised that their daughter was suffering from emotional instability, alternating between periods of anger and periods of agitation.", "6. On 19 April 2013 the applicant went to a party where there were drugs and alcohol. The police arrived, seized the drugs and alcohol and checked the identity of the minors who were present.", "A. The proceedings before the Youth Court and the minor ’ s placement", "7. On 23 April 2013 the prefect of Rome informed the public prosecutor at the Rome Youth Court (“the Youth Court”) of the police operation carried out on 19 April 2013 and of the presence of V.C., a minor, at the scene. A criminal investigation was opened and the public prosecutor at the Youth Court was informed.", "8. On 31 May 2013 the public prosecutor heard evidence from V.C. ’ s parents. They stated that their daughter had been having difficulties and that they were worried about her, saying that she was taking drugs and stealing money at home. They also told the prosecutor that, according to the psychiatrist who was treating the applicant, she suffered from a bipolar disorder and an attention deficit disorder caused by drug use and also showed signs of a borderline and anti-social personality.", "9. Subsequently, in June 2013, V. C. ’ s parents informed the prosecutor that they had discovered through their daughter ’ s Facebook page that she had been approached by a photographer to pose for pornographic photographs. The Government maintained that the parents had told the prosecutor on that occasion that their daughter did not want to be placed in a specialist institution.", "10. On 5 June 2013 the public prosecutor heard evidence from the applicant, who stated that she had started to take drugs when she was twelve but had since stopped. The applicant stated that she did not wish to be placed in a specialist institution or in a foster family.", "11. On 25 June 2013 the applicant ’ s mother informed the public prosecutor by telephone that the situation had not improved and that the applicant had been approached to pose for pornographic photographs.", "12. On 2 July 2013 the public prosecutor informed the Youth Court that it was clear from the statements made by the parents and the applicant, who had admitted stopping school and using drugs, and from the psychiatrist ’ s diagnosis, that V. C. was in danger as she was no longer attending school and there was a risk that she might be caught up in a child prostitution ring, given that she had been approached to pose for photographs. The public prosecutor therefore requested the Youth Court to institute urgent proceedings under Article 25 of Royal Decree no. 1404 of 1934 and to have the minor placed in a specialist institution and in the care of the social services.", "13. On 24 July 2013 the Youth Court appointed a judge ( giudice onorario ) to hear evidence from the applicant, her parents and the social services, in order to learn more about her environment and take the appropriate measures to protect her.", "14. On 14 October 2013, that is, almost three months later, the Youth Court gave the social services notice to appear before it. However, they did not appear.", "15. The Youth Court gave notice to the applicant ’ s parents to appear before it on 21 October 2013. The parents gave evidence without the social services being present and stated that their daughter did not want to give evidence.", "16. On 24 October 2013 the public prosecutor requested the judge to place the child in the care of the social services and in a specialist institution.", "17. On 9 December 2013 the Youth Court, after hearing evidence from the parents and adding to the file the conversations which the applicant, who had refused to give evidence, had had on Facebook, and taking into account the fact that the social services had not attended the hearing, decided that it was necessary to place the child in the care of the social services. The court ordered her placement in a specialist institution for an initial twelve-month period so that she could follow a specific programme designed to help her to amend her behaviour, which the court described as erratic, and thus to resume a normal life.", "18. On 11 December 2013 the social services received a copy of the Youth Court ’ s decision.", "19. On 17 December 2013 a first meeting was held between the social services and the applicant ’ s parents. During the meeting the parents told the social services that there was a risk that their daughter might be caught up in a prostitution ring. They informed the social services that a criminal investigation was in progress.", "20. On 18 December 2013 the social services contacted the psychiatrist who was treating the applicant and later met the applicant.", "21. On 19 December 2013 the public prosecutor at the District Court informed the public prosecutor at the Youth Court that a criminal investigation was in progress concerning two individuals for exploitation of the applicant for prostitution. The applicant had given evidence on 4 and 9 December 2013 (see paragraph 48 below).", "The public prosecutor stressed that the arrest of the two suspects was imminent, and requested the prosecutor at the Youth Court to inform him of the measures taken to implement the Youth Court ’ s decision of 9 December 2013 (see paragraph 17 above), given that the applicant was due to give evidence at the ad hoc hearing ( incidente probatorio ) ( see paragraph 51 below ).", "22. On 20 December 2013 the applicant reiterated that she did not wish to be placed in a specialist institution.", "23. However, in January 2014 she consented to such placement.", "24. On 30 January 2014 the social services contacted the regional drug addiction agency for advice on how to help the applicant withdraw from drugs.", "25. During the night of 30 January 2014 V.C. was the victim of a rape ( violenza sessuale ) committed by two individuals (see paragraph 54 below). On 31 January the applicant went to hospital with a police officer and her mother in order to be examined.", "26. On 6 February 2014 the social services told the Youth Court that they had had several meetings with V.C. ’ s parents and with the psychologist and psychiatrist whom she was seeing. They also informed the court that the girl had agreed to be placed in a specialist facility with a view to drug rehabilitation treatment.", "27. On 7 February 2014 the social services were informed of the assault on the applicant.", "28. On 19 February 2014 the President of the Youth Court made an urgent request to the social services to inform her of the measures taken to assist the applicant. She stressed that, in view of the applicant ’ s age, it was still possible for her to change her behaviour and that a programme should be put in place to protect her from the risks she was facing.", "29. On 25 February 2014, having received no information on the applicant ’ s situation, the Youth Court requested the competent social services departments to draw up a report on the measures taken to assist her.", "30. On 13 March 2014 the youth mental health department informed the Youth Court that the applicant had been diagnosed as being anti - social and drug - dependent and that she had agreed to being placed in a treatment centre ( comunità terapeutica ). The department had therefore requested the V. L. centre to admit her.", "31. On 17 March 2014 the department dealing with drug dependency issues informed the Youth Court that the applicant had not consented to her placement and that, in any event, a psychiatric expert opinion was required prior to placement.", "32. On 27 March 2014 the social services requested that the applicant be placed in a care facility as a temporary measure. On 31 March 2014 the care facility that been chosen stated that it did not have any places available.", "33. In a report of 3 April 2014 the department dealing with drug dependency issues informed the court that it had chosen a treatment centre where the applicant could undergo rehabilitation.", "34. On 3 April 2014 V. C. ’ s parents requested the Youth Court to enforce the decision of 9 December 2013 ordering their daughter ’ s placement in a specialist institution in order to help her. They also requested that a curator be appointed and that the court take urgent steps to protect their daughter.", "35. On 4 April 2014 the Youth Court ordered the child ’ s immediate placement in the Karisma treatment centre. The measure took effect on 14 April 2014.", "36. On 2 July 2014 the staff of the Karisma centre observed that the applicant ’ s behaviour was challenging owing to her drug and alcohol dependency.", "37. On 19 December 2014 the Karisma treatment centre informed the social services that the applicant ’ s problems persisted and that it did not have the necessary infrastructure to deal with them in view of the applicant ’ s drug addiction. They requested her transfer to a facility specialising in the treatment of minors with drug dependency problems.", "38. The social services did not respond to this request.", "39. On 7 September 2015 V. C. left the Karisma centre and returned to live with her parents.", "40. On 22 October 2015 the social services sent a report to the Youth Court stressing that two meetings had been held with the applicant ’ s parents and that a psychiatric expert assessment had been carried out. According to the expert, the applicant had problems with numeracy and was advised to follow a course of pharmacological treatment.", "41. On 19 May 2016 the Youth Court held a hearing that was not attended by the social services. The applicant gave evidence. She stated that she had gone back to school and was continuing to be monitored by the social services. She said that she had made new friends and had had a positive experience in the treatment centre.", "42. On 1 June 2016 the public prosecutor ’ s office approved the continuation of the programme that had been put in place. The applicant stated that no such programme had actually been in place.", "43. On 22 December 2016 the Youth Court gave notice to two representatives of the social services to appear before it in order to provide an update on the applicant ’ s situation. According to the social services, the applicant ’ s situation had improved and their involvement was thus no longer necessary.", "44. On 10 January 2017 the public prosecutor issued an opinion in favour of discontinuing the proceedings instituted on the basis of Article 25 of Royal Decree no. 1404 of 1934.", "45. In a decision of 17 January 2017 the Youth Court discontinued the proceedings.", "B. The criminal proceedings concerning the prostitution ring", "46. An investigation into the prostitution ring was opened in April 2013 and was concluded in December of that year.", "47. On 25 September 2013 the public prosecutor at the Youth Court reported on the applicant ’ s situation to his counterpart at the Rome District Court.", "48. The applicant gave evidence in the criminal investigation on 4 and 9 December 2013. She said that she had worked as a prostitute for two individuals.", "49. On 16 January and 6 February 2014 two suspects were arrested.", "50. On 21 January 2014 the prosecuting authorities again heard evidence from the applicant.", "51. On 26 March 2014, at the ad hoc hearing ( incidente probatorio ), the applicant reiterated that she had worked as a prostitute for the two suspects between August and December 2013.", "52. On 17 November 2014 the Rome District Court sentenced the two defendants to prison terms of five years and four years respectively for living on the earnings of prostitution. It also ordered them to pay damages to the applicant, who had applied to join the proceedings as a civil party. The court found that the two defendants had put pressure on the applicant to engage in prostitution, had benefited from the applicant ’ s prostitution and had shared the proceeds. In its decision the court stated that the applicant had been the victim of sexual exploitation from August to December 2013 and that the defendants had been aware of her age.", "On 4 February 2016 the Court of Appeal upheld the conviction.", "53. The applicant stated that she had not received the amount awarded by the courts in respect of damages.", "C. The criminal proceedings concerning the rape of the applicant", "54. An investigation into the gang rape ( violenza sessuale di gruppo ) of the applicant on the night of 30 January 2014 was opened concerning two suspects. The case was set down for preliminary hearing on 6 November 2015 before the Rome District Court. It appears from the file that a further hearing was held on 16 February 2016 and that the proceedings are still pending." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "55. Royal Decree no. 1404 of 20 July 1934, which later became Law no. 835 of 1935, set up the youth courts. The Law has since undergone various amendments.", "56. Article 25 of the 1 934 Royal Decree laid down the following provisions regarding cases of erratic behaviour ( irregolare condotta ) on the part of a minor :", "“Where a minor displays erratic behaviour or personality traits the public prosecutor, the head of the social services, the parents, the guardian or the child education, protection and support authorities may inform the Youth Court, which may carry out a detailed investigation into the minor ’ s personality and may order, by means of a reasoned decision, that the minor be placed in the care of the social services and in an institution.”", "Article 25 bis of the Royal Decree read as follows :", "“Any public official who is alerted to the fact that a minor is engaged in prostitution or is a victim of sexual abuse shall inform the public prosecutor at the Youth Court, who shall set the child protection procedures in motion and may propose that the court appoint a curator. The Youth Court shall take the necessary measures to provide the minor with psychological support and rehabilitation. In urgent cases the court may act of its own motion.”", "Article 27 read as follows:", "“Where the court has ordered the measure provided for under Article 25, a report shall be drawn up, which must contain the guidelines to be followed by the minor .... The report may order the minor ’ s removal from the family home and must indicate the place where [he or she] is to live. ...", "A member of the social services must monitor the minor ’ s conduct and help [him or her] overcome his or her problems, working together with the family ... He or she must also report regularly to the Youth Court, providing it with detailed updates on the minor ’ s conduct and the persons who have taken care of him or her. ..”", "THE LAW", "I. ADMISSIBILITY", "57. The Government argued that the applicant no longer had victim status. The authorities had taken all the necessary measures to protect the applicant by placing her in a specialist institution, where she had remained for one year. The criminal proceedings against her assailants had been concluded and her parents had been joined to the proceedings as civil parties.", "58. The Government further submitted that the applicant had not exhausted domestic remedies, as the domestic proceedings had still been pending when the application was lodged.", "59. The applicant contested the Government ’ s argument. She submitted, in particular, that the authorities ’ action had been ineffective and that her complaints did not relate to the criminal proceedings against the individuals prosecuted for rape and living on the earnings of prostitution.", "60. The Court considers at the outset, like the applicant, that her complaints do not relate to the criminal proceedings for sexual exploitation and rape. Next, as regards the Government ’ s preliminary objection alleging a lack of victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention ( see Eckle v. Germany, 15 July 1982, §§ 69 et seq., Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 ‑ X ). That rule applies even if the applicant obtains satisfaction after the proceedings before the Court have commenced, in accordance with the subsidiary nature of the Convention system of safeguards ( see, in particular, Mikheyeva v. Latvia (dec.), no. 50029/99, 12 September 2002). The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation ( see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006 ‑ V ).", "61. Turning to the facts of the present case, the Court considers that there has been neither implicit acknowledgement of the existence of a Convention violation nor any compensation for the period during which the applicant was in a vulnerable situation while she waited for the authorities to take practical steps to protect her.", "62. In the light of the foregoing, the Court considers that the applicant may still claim to be the victim of a violation of Articles 3, 8 and 13 of the Convention. It therefore dismisses the Government ’ s preliminary objection in that regard.", "63. As to the objection of failure to exhaust domestic remedies, the Court notes at the outset that the applicant lodged her application on 23 July 2014, while she was placed in a specialist institution, that her placement ended in September 2015 and that the proceedings were terminated in January 2017 (see paragraph 44 above). It observes that the proceedings in question, which were provided for by Royal Decree no. 1404 of 20 July 1934, were not capable of affording redress in respect of the applicant ’ s complaints concerning the failure of the social services to act and the delay in implementing protective measures. The Court also notes that the criminal proceedings for sexual exploitation and rape, which ended in 2016 and 2015 respectively, are not the subject of the present application. Accordingly, the Court considers that the application should not be rejected for failure to exhaust domestic remedies, despite the fact that the proceedings provided for by Royal Decree no. 1404 of 20 July 1934 were pending when the application was lodged. It follows that the Government ’ s preliminary objection must be dismissed.", "64. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It therefore declares it admissible.", "II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "65. The applicant alleged that, despite the fact that she had been a minor and the victim of a prostitution ring, the Italian authorities had not taken all the necessary measures to protect her. She relied on Articles 3 and 8 of the Convention, which provide:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private and family life ... ”", "A. The applicant ’ s submissions", "66. The applicant argued that, although she had been a vulnerable minor, the State had not taken the necessary measures to protect her. The authorities had not acted with the requisite diligence and had not taken account of the risks that she faced. She had been left in a vulnerable situation, without protection, from 20 April 2013 until her placement in the Karisma treatment centre on 14 April 2014.", "67. The applicant submitted that her protection had been of paramount importance and that the Youth Court and the competent social services had left her alone and defenceless for some time. During the period in which she had been in the care of the social services, the latter had not monitored her properly and she had been raped. In her submission, the risk of sexual assault had been foreseeable.", "68. The applicant pointed out that her parents had requested that protective measures be taken in July 2013, that the case had been set down for hearing before the Youth Court in October 2013 and that the order for her placement and care had been made in December 2013. In her view, this was a very long period of time.", "She added that she had been the victim of sexual exploitation between August and December 2013 and had been raped in January 2014.", "69. In the applicant ’ s submission, the authorities had not done all that could reasonably be expected of them to avoid a real and immediate risk to her life of which they had or ought to have had knowledge.", "70. In that connection the applicant argued that the authorities had adopted a passive attitude. The Youth Court had ordered her placement ten months after her parents had made a request to that effect and, once the decision had been adopted, the social services had not taken the necessary steps to have her placed promptly in a specialist institution. The judge had had to ask the social services twice to indicate what measures had been taken to protect her (see paragraphs 28 and 29 above).", "71. The applicant alleged that the social services had taken no further interest in her case after she had been placed in the specialist institution. Her return to live with her family had thus been decided solely by the staff in the treatment centre; the social services had never expressed a view on the subject and had not followed up on her case after she had returned to the family home.", "72. The applicant submitted that the authorities should have taken urgent action in accordance with the positive obligations arising out of Article 8 of the Convention. On the contrary, they had left her in a vulnerable situation despite being aware of the danger she faced. The initial inaction of the authorities and the subsequent inaction of the social services had thus deprived her of the protection she needed.", "73. Accordingly, the applicant was of the view that the authorities had not complied with their positive obligations under Articles 3 and 8 of the Convention.", "B. The Government ’ s submissions", "74. The Government stated that they had adopted all the necessary measures in order to find a solution in the present case. Given the complexity of the applicant ’ s situation, linked to a variety of problems including her drug addiction, it had not been easy to find an appropriate specialist institution capable of taking care of her.", "75. Once the Youth Court had been alerted by the applicant ’ s parents to the risks which she faced, including the risk of being caught up in a child prostitution ring, a criminal investigation had been opened and the perpetrators had been arrested in 2014.", "The authorities had therefore taken all the necessary measures to protect the applicant and prevent ill-treatment.", "76. As to the sexual assault on the applicant, the Government submitted that it could not have been foreseen by the authorities, especially since the applicant had not been under the sole supervision of the State at the time of the offence, but had been living with her family.", "77. Accordingly, in the Government ’ s submission, the sexual assault on the applicant could not be regarded as a consequence of the delay by the authorities in implementing the Youth Court ’ s decision.", "78. In the Government ’ s view, the sexual assault had resulted from unforeseeable conduct. Moreover, the authorities had done everything in their power to identify the perpetrators and bring them to trial.", "79. Furthermore, placing a child in the care of the social services was not in itself a protective measure but was to be regarded as assistance to the family, given the need to obtain the minor ’ s consent before placing him or her in an institution and arranging therapeutic support. The Government drew the Court ’ s attention in particular to the dual aim pursued by the measure laid down in Royal Decree no. 1404 of 1934, which later became Law no. 835 of 1935. That measure was designed, firstly, to secure the right to education to children in difficulty and, secondly, to prevent juvenile offending.", "80. As to the complaint under Article 8 of the Convention, the Government maintained that the authorities had taken all the necessary measures to protect the applicant as soon as they had become aware of the risks that she faced.", "81. The authorities had heard evidence from the applicant and her parents on several occasions in an attempt to find the most appropriate facility to take care of her; several of the facilities that were approached had been unable to admit her.", "82. The Government submitted that the authorities had taken all the necessary measures, as they had immediately opened an investigation into sexual exploitation and had convicted the perpetrators of that offence and identified the perpetrators of the sexual assault on the applicant. Referring to the Court ’ s judgment in the case of O ’ Keeffe v. Ireland ( [GC], no. 35810/09, §§ 191-92, ECHR 2014 (extracts) ), they argued that the complaint under Article 8 of the Convention did not raise a separate issue from that raised under Article 3 of the Convention.", "C. The Court ’ s assessment", "1. Applicability of Article 3 of the Convention", "83. In order for ill-treatment to fall within the scope of Article 3 of the Convention it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. The absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 ( see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999 ‑ IX ). Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (compare, for instance, Selmouni v. France [GC], no. 25803/94, § 104, ECHR 1999 ‑ V; see also, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010 ) and whether the victim was in a vulnerable situation ( see Khlaifia and Others v. Italy [GC], no. 16483/12, § 160, 15 December 2016 ).", "84. In the present case the Court observes that it is not disputed that the applicant was in a vulnerable situation. It therefore considers that the applicant may be regarded as falling into the category of “vulnerable individuals” who are entitled to State protection ( see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI). It takes note in that regard of the abuse to which the applicant was subjected, as the victim of sexual exploitation between late August and December 2013 and of rape in January 2014. It further observes that the abuse to which the applicant was subjected, and which took the form of physical assaults and psychological duress, was sufficiently serious to attain the degree of severity necessary to bring it within the scope of Article 3 of the Convention. Accordingly, that provision is applicable in the present case.", "2. Applicability of Article 8 of the Convention", "85. The Court notes that the applicability of Article 8 of the Convention is not disputed between the parties. It considers it beyond doubt that the abuse to which the applicant was subjected, and which interfered with her right to respect for her physical integrity ( see M.P. and Others v. Bulgaria, no. 22457/08, § 110, 15 November 2011 ), caused disruption to her daily life and had an adverse effect on her private life. The Court has previously found that the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. There appears, furthermore, to be no reason in principle why the notion of “private life” should be taken to exclude attacks on one ’ s physical integrity ( see M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII).", "86. It follows that this provision is applicable to the circumstances of the present case.", "3. Conclusion", "87. In view of the foregoing considerations and of the nature and substance of the complaints raised by the applicant in the present case, the Court considers that they should be examined from the standpoint of Articles 3 and 8 of the Convention.", "4. Violation of Articles 3 and 8 of the Convention", "( a) Applicable principles", "88. The Court would reiterate at the outset that the prohibition of inhuman or degrading treatment is a fundamental value in democratic societies (see, among many other authorities, Selmouni, cited above, § 95; Gäfgen, cited above, § 87; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 195, ECHR 2012; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 315, ECHR 2014 (extracts)). It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81 and 89-90, ECHR 2015). The prohibition in question is absolute, for no derogation from it is permissible even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime, irrespective of the conduct of the person concerned (see, among other authorities, Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts); Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts); and Bouyid, cited above, § 81).", "89. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom, cited above, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002; and M.C. v. Bulgaria, cited above, § 149 ). These measures must provide effective protection, in particular of children, who are particularly vulnerable to various forms of violence, and include reasonable steps to prevent ill ‑ treatment of which the authorities had or ought to have had knowledge, as well as effective deterrence protecting minors against such serious breaches of personal integrity ( see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII; E. and Others v. the United Kingdom, cited above, § 88; Z and Others v. the United Kingdom, cited above, § 73; and M.P. and Others, cited above, § 108). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012, and Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002-III).", "90. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of this positive obligation must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Article 8 of the Convention ( see Đorđević v. Croatia, no. 41526/10, §§ 139, ECHR 2012, and the case-law cited therein ).", "91. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see, among other authorities, Osman, cited above, §§ 128-30; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A v. Croatia, no. 55164/08, § 60, 14 October 2010; and Đorđević, cited above, §§141-43).", "92. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see Opuz v. Turkey, no. 33401/02, § 165, ECHR 2009). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Sandra Janković, cited above, § 46, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010). The question of the appropriateness of the authorities ’ response may raise a problem under the Convention (see Bevacqua and S., cited above, § 79).", "93. The positive obligation to protect a person ’ s physical integrity extends to matters concerning the effectiveness of a criminal investigation, which cannot be considered to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, cited above, § 151).", "94. This aspect of the positive obligation does not necessarily require a conviction, but effective implementation of the law, particularly criminal, in order to secure the protection of the rights guaranteed by Article 3 of the Convention ( see M.G. v. Turkey, no. 646/10, § 80, 22 March 2016 ).", "95. A requirement of promptness and reasonable expedition is implicit in the obligation to carry out an investigation. The protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to the authorities (see Opuz, cited above, §§ 150-51). The State ’ s obligation under Article 3 of the Convention will not be deemed to be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays.", "( b) Application of the above-mentioned principles to the present case", "96. In the present case there is no doubt that the abuse to which the applicant was subjected falls within the scope of application of Article 3 of the Convention and constitutes interference with her right to respect for her physical integrity as guaranteed by Article 8 of the Convention.", "97. The Court must ascertain whether the legislation and the manner in which it was implemented in the instant case, coupled with the alleged failure of the social services to take action, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Articles 3 and 8 of the Convention.", "98. The main issue which arises in the present case is therefore whether the authorities took all the necessary measures to prevent the abuse to which the applicant was subjected and to protect her physical integrity.", "99. The Court will examine first of all whether the competent authorities were or should have been aware of the vulnerable situation of the applicant.", "100. In that connection the Court notes that it is clear from the case file that the authorities were aware as of April 2013 of the erratic behaviour displayed by the applicant, who had been found in possession of alcohol and drugs, since the public prosecutor at the Youth Court had been alerted to the situation.", "101. It also notes that in May and June 2013 the minor ’ s parents informed the authorities of the state of distress of their daughter, who had a bipolar disorder and an attention deficit disorder and also showed signs of a borderline and anti-social personality (see paragraph 8 above). They also mentioned the risk, supported by documentary evidence, of her becoming caught up in a prostitution ring.", "102. In view of the above considerations, the Court is satisfied that the domestic authorities were aware of the applicant ’ s vulnerable situation and of the real and immediate risk that she faced. It will therefore examine whether, regard being had to the circumstances of the case, those authorities took all reasonable measures to protect the applicant as soon as they became aware of the risks facing her.", "103. The Court notes that the authorities immediately instituted a criminal investigation but that no measures were put in place to protect the applicant, who was aged 15 at the time. Although the public prosecutor requested on 2 July 2013 (see paragraph 12 above ) that urgent proceedings be instituted and that the applicant be placed in a specialist institution and in the care of the social services, the Youth Court took more than four months to reach a decision.", "104. The Court also notes that it emerged from the criminal proceedings concerning the prostitution ring that the applicant had been the victim of sexual exploitation during the period in question (see paragraph 52 above). The applicant was thus engaged in prostitution and part of her earnings stemmed from the actions of the two members of the prostitution ring.", "105. The Court observes that it took the social services more than four months following the Youth Court ’ s decision of December 2013 to implement the order for the applicant ’ s placement, notwithstanding the requests to that effect made by the applicant ’ s parents and two urgent requests for information from the Youth Court (see paragraphs 28 and 29 above).", "106. The Court notes that, in the meantime, the applicant was the victim of rape (see paragraph 25 above), that criminal proceedings for gang rape were instituted in that regard, that the alleged perpetrators were identified and that the proceedings are pending before the Rome District Court (see paragraph 54 above).", "107. The Court considers that in assessing the State ’ s compliance with its positive obligations under Articles 3 and 8 of the Convention, considerable weight should be attached to the social services ’ and/or child protection authorities ’ efforts to protect the minor in question ( see, mutatis mutandis, M.P. and Others v. Bulgaria, cited above, § 11 4 ).", "108. In the present case the Court observes that it took the Youth Court four months, from the date on which it became aware of the applicant ’ s difficult and dangerous situation (see paragraph 12 above), to adopt the protective measures provided for by law and requested by the public prosecutor, despite the fact that the applicant faced a known risk of sexual exploitation, given that a criminal investigation was under way and her parents had informed the authorities.", "109. The Court is not persuaded by the Government ’ s argument that, in the absence of her consent, the applicant ’ s placement in an institution, as ordered by the Youth Court in its decision of 9 December 2013 (see paragraph 17 above), was not possible. Even assuming this to have been the case, the Court notes in that connection that, while the applicant had refused such a placement in December 2013 (see paragraph 22 above), she gave her consent in January 2014 (see paragraph 23 above), that is, three months before she was admitted to the Karisma centre (see paragraph 35 above). The Court therefore concludes that the fact that at one point in time the applicant did not give her consent did not in itself exempt the State from acting rapidly to take appropriate and sufficient measures to protect a minor in such a way as to ensure compliance with the positive obligations imposed by Articles 3 and 8 of the Convention.", "In addition – and despite the urgent nature of the request made by the President of the Youth Court regarding the measures taken to assist the applicant, who was in a difficult situation – the Court finds that the conduct of the social services indicates a lack of real commitment on their part to implementing the Youth Court ’ s decision, in view of their failure to attend the hearings (see paragraphs 14 and 15 above) and the time they took to select an institution to admit the applicant.", "110. In the Court ’ s view, the national authorities had a duty to take account of the applicant ’ s particular psychological and physical vulnerability and to assess the situation accordingly by taking immediate and appropriate protective measures. That did not happen in the present case.", "111. The Court notes that, unlike the criminal courts, which acted rapidly, the competent authorities (the Youth Court and the social services) did not actually take any immediate protective measures, despite being aware that the applicant was vulnerable, that proceedings concerning her sexual exploitation were still pending and that an investigation into gang rape was ongoing. Accordingly, the authorities did not carry out any assessment of the risks faced by the applicant.", "112. In these circumstances the Court considers that the authorities cannot be said to have acted with the requisite diligence. It therefore finds that they did not take, in a timely manner, all reasonable measures to prevent the abuse of which the applicant was a victim.", "113. Accordingly, the Court finds a violation of Articles 3 and 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "114. The applicant alleged that she had not had a remedy in domestic law by which to complain of the violations of her rights. She relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "115. The Government contested that argument.", "116. Having regard to its finding of a violation of Articles 3 and 8 of the Convention (see paragraph 113 above), the Court considers that it has examined the main legal question raised in the present case. In view of all the facts of the case and the parties ’ submissions, it considers that there is no need to examine the same facts under Article 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the case-law cited therein ).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "117. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "118. The applicant claimed 150, 000 euros (EUR) in respect of non ‑ pecuniary damage.", "119. The Government contested that claim.", "120. The Court considers it appropriate to award the applicant EUR 30,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "121. Submitting documentary evidence, the applicant also claimed EUR 4,152 .1 0 for the costs and expenses incurred before the domestic courts and EUR 19,153.65 for costs and expenses before the Court.", "122. The Government contested the applicant ’ s claims, arguing that she had not demonstrated that she had incurred the costs and expenses claimed.", "123. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 10,000 for the proceedings before the Court.", "C. Default interest", "124. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant was born in 1984 and the second applicant in 2009.", "A. Background to the case", "7. A had a relationship with C and in 2009 their daughter, B, was born. The family lived together at the house of C ’ s parents until January 2014 when A and B moved out. B continued to see C regularly and spend two to three nights a week at the house he shared with his parents.", "8. According to A, on an unspecified date in June 2014 B, then four and a half years old, was playing with her genitals in front of A and told her that she had been playing like that with her father, C, every evening before going to bed.", "9. On 11 June 2014 A called “the Brave Telephone”, a children ’ s helpline, which advised her to contact the Polyclinic for the Protection of Children in X (hereinafter “the Polyclinic”). On the same evening, A took B to C ’ s house and left her there to spend the night with her father.", "10. The following day A called the Polyclinic and scheduled an appointment for B for 20 June 2014. It is unknown which information A gave the Polyclinic at that time.", "11. The next day, A and B travelled to another town to visit A ’ s family. According to A, on 14 June 2014 when B was with her maternal aunt, she asked her to “touch [herself] down there” and told the aunt that “daddy has been playing with [her] so as to touch [her] on the genitals with his hands, which [she] told [her] paternal grandparents and [her] grandfather shouted at [her] father”. B also told her aunt that C had been singing a song to her about a bunny. The aunt considered the lyrics of the song as having erotic content.", "B. Criminal proceedings", "12. On 16 June 2014 A went to the Y Police Station to report that C had been sexually abusing their child, B, at the time aged four and a half. A was interviewed by a police officer. According to the police report, A said that about two and half years previously she had found her daughter naked from the waist to the knees in a bed with her partner, C, who was asleep. C ’ s face had been close to the child ’ s genitals. A had woken him up and asked him why B was naked. C had replied that she had probably taken her clothes off while he had been asleep. Since there had been no other suspicious signs in B or C ’ s behaviour at the time, A had not taken any action. However, in the spring of 2014, when A, B, and A ’ s sister had been out in public, B had suddenly grabbed a woman she did not know by her genitals. Around then C had been taking care of B most of the time. Also, on 14 June 2014 A had left B with her aunt, A ’ s sister. When A had returned after about an hour, her sister had told her that B had said that C had been “touching [her] down there”, and that she had heard B singing some songs about “a bunny entering a hole”. B had said that she had told her paternal grandparents all this, and that her grandfather had “yelled at daddy not to do things like that anymore ”.", "13. According to A, she did not receive any assistance from the police and was only told to contact the Polyclinic, which she had already done (see paragraph 10 above).", "14. On the same day the police interviewed D and E, A ’ s siblings. D confirmed A ’ s allegations, and said that she had recorded some of B ’ s behaviour and statements on her mobile telephone. E said that one day mid- June 2014 B had started to behave aggressively towards him, had wanted to kiss him on the mouth and had tried to touch his genitals. He had told D about it.", "15. On the same day, C ’ s father reported to the Y Welfare Centre that A had been “emotionally and physically abusing B”, in that she was frequently shouting at B, hitting and insulting her.", "16. On 17 June 2014 the police interviewed a paediatrician who had treated B. She said that A had approached her the previous day very upset and had wanted to discuss the possible sexual abuse of B by her father, C. The doctor said that C had been taking care of B most of the time, and that when she had needed medical assistance, he had been the one who had brought B to see her. The doctor described B as a communicative, bright and intelligent child and said that she had not noticed any signs of any kind of abuse.", "17. On the same day the police interviewed two teachers in the kindergarten B had been attending. They both described B as a normal, communicative child. Neither of them had noticed any signs of abuse.", "18. On the same day A reported the alleged sexual abuse of B by C to the Y Social Welfare Centre (hereinafter “the Centre”). She gave the Centre details on the alleged abuse and informed them that she had already made an appointment at the Polyclinic. A report was drawn up and on the same day forwarded to the Y Police. On 18 June 2014 the Centre contacted the Polyclinic inquiring about the exact date of their appointment with A and B.", "19. On 20 June 2014 B was seen by a multidisciplinary team at the Polyclinic. According to A, when she arrived at the Polyclinic she found that C was also there. She was surprised since she had not been informed that he would be present. According to her, both she and C were constantly present during the interviews with B, except for maybe five minutes. According to the Government, the first applicant and C were “processed” at the Polyclinic but were not present during the interviews with B.", "20. According to the Government, on 23 June 2014 the Y Police Department requested the Polyclinic to urgently deliver to them its findings concerning B.", "21. On 2 July 2014, as instructed by the Polyclinic, B was examined by a gynaecologist. Both her parents were there, but neither of them were present during the examination. No signs of sexual penetration or a fresh or older injury were observed.", "22. On 4 July 2014 a multidisciplinary team from the Polyclinic issued a report on B. According to that report, during the assessment B was seen by a social worker, a paediatrician, a psychologist and a psychiatrist. The report does not state the dates she was seen by any of the specialists. The relevant parts of that report read as follows :", "“ Assessment and opinion of the social worker", "The girl came to the [interview with] the social worker accompanied by her parents ... During the interview with the parents, the girl entered the [interview] room several times. She accepts to stay alone, but on several occasions she exits the room and asks that her mother join her. During the conversation ... she says that “dad touched her [ vagina ] ” and that mum “told her to say that ”, no other information can be obtained ...", "Assessment and opinion of the paediatrician", "... sexual organ externally female, clean, no irritations or change of colour ... Appointment arranged with ... gynaecologist ... for 30 June 2014.", "Assessment and opinion of the psychologist", "The girl comes accompanied by her parents ... At this point the girls is separated from her parents and remains alone with the interviewer but several times exits the room checking on her parents, which she also does when parents were in the room while she was outside in the hallway with a companion ... As her reason for coming she says that her mother had told her that her father “had done something bad, was touching her [ vagina ] ”, which is why “her mum is protecting her from her father, so that she does not go close to him”. She provides no further details ...", "In conclusion ... [the girl] is growing up in a family with separating parents, she witnesses their broken down relationship, and is exposed to negative attributes of the other parent by the mother, which creates a pressure on the girl ... During the conversation she says that the reason for her coming was inadequate behaviour by the father, but she has difficulties providing details. No signs confirming such behaviour are observed through psychological assessment ...", "Assessment and opinion of the psychiatrist", "... The girl states that she lives with her mother, that her father used to be very good, but now he is very bad and rude to her, she claims that he “touched her [ vagina ] ”. The girl talks about the father ’ s alleged actions spontaneously, without any discomfort ... Later on, we get the information that her mother told her to say so ...", "Psychiatric profile: ... established verbal communication, says she had been sexually abused by the father, but without discomfort or adequate affections ...", "Psychiatric assessment does not show signs clearly showing sexual abuse (affectionate inadequacy), but it is not possible to exclude inducement of the girl, which constitutes a risk of emotional abuse.", "Opinion of the multidisciplinary team", "The girl has been included into the multidisciplinary assessment as instructed by the relevant Centre and police, for suspicions of abuse by the father ...", "During the examination, the girl did not show clear signs of being sexually abused. The girl did not describe contextually characteristic situations and her affective response did not correspond to the verbally expressed content. There are elements which indicate pressure by the mother and the possibility of inducement cannot be excluded, which presents a risk of emotional abuse.", "The assessment of the father ’ s possible inappropriate behaviour is aggravated by the family climate of fighting, the relationship between the parents, the heteroamnestic information obtained, the different information given by the parents, as well as the mother being overwhelmed by her own experience and mistrust towards the girl ’ s father.", "...", "It is recommended that the girl receives supportive supervision over her further development. [It is also recommended] that the parents take part in counselling and that assistance be provided to the family through supervision of parental care to ensure the girl grows up in a safe and stable environment.”", "23. On 15 July 2014 C instituted court proceedings against A seeking custody of B.", "24. On 6 August 2014 the police sent a special report to the Z State Attorney ’ s Office containing all the interviews are reports gathered by them up to that point.", "25. On 11 August 2014 the Y police interviewed C. He denied any sexual abuse of B and alleged that A had been physically punishing her, about which he had lodged a criminal complaint.", "26. On the same day, the police requested the Y Welfare Centre to urgently send the family anamnesis and all available information on A and C ’ s family.", "27. On 13 August 2014 the Y Municipal Court issued an interim measure allowing A to “exercise all parental rights” over B, owing to the allegations of sexual abuse against C.", "28. On the same day, the Centre inquired with the Polyclinic whether B had been included in any supportive follow-up treatments further to her multidisciplinary assessment.", "29. On 20 August 2014 the Y police interviewed C ’ s parents, aunt and brother-in-law. The parents had not witnessed any incidents of C sexually abusing B, but both described incidents of A physically abusing B. The aunt and brother-in-law had heard from A about the alleged sexual abuse of B by C, but had not witnessed any incidents of that kind.", "30. On 22 August 2014 the Y police confiscated a USB stick from C.", "31. On 25 August 2014 A ’ s mother approached the Y police and expressed her concerns about a meeting between B and C ordered by the Y Social Welfare Centre for 28 August 2014. She said that at the mention of the meeting with C, B had thrown herself to the ground and started crying and being aggressive towards her toys, pets and relatives. She also described B ’ s overtly sexual behaviour.", "32. On 27 August 2014 the Y Welfare Centre applied a “supervision of parental care” child-protection measure in respect of both A and C.", "33. On 2 September 2014 the Y police provided the Z State Attorney ’ s Office with another special report on the actions taken following A ’ s criminal complaint.", "34. On 5 September 2014 the Y Welfare Centre sent its report on A, B and C to the Y Municipal Court. It suggested that for the time being care of B be granted to A.", "35. On 19 September 2014 the Y Municipal Court awarded custody of B to A and ordered that contact between C and B take place between 4 and 6 p.m. every Tuesday.", "36. On 6 October 2014 the Y police interviewed B ’ s babysitter, who described incidents of sexual behaviour by B. On the same day, the police provided the Z State Attorney ’ s Office with another special report on the actions taken following A ’ s criminal complaint.", "37. On 10 October 2014 A requested the Z State Attorney ’ s Office to hear further witnesses in the case.", "38. On 30 October 2014 the State Attorney ’ s Office ordered that B be seen by a defectologist and that, along with the relevant social welfare centre, the results of the child-protection measure be assessed (see paragraph 32 above) with a view to protecting B ’ s best interest.", "39. On 14 November 2014 the State Attorney ’ s Office requested Polyclinic A.B.R., where B was being treated, to submit its assessment on whether B was being abused by either of her parents, with a view to her criminal protection.", "40. On 17 November 2014 A submitted to the State Attorney ’ s Office a report dated 10 November 2014 issued by a psychiatrist Z.K, employed with Clinic P, where A had taken B for another assessment. The relevant part of that report reads as follows :", "“ ... In the drawing of her family, the father is described as mean and doing things that he should not. She says that the father took her clothes off and pinched her behind and genitals on three occasions, that she told him not to do it, but he had always replied that he did not care. She also says that daddy used to kiss her on the mouth but has stopped doing it. She says that she has not had similar experiences with anyone else. The mother says that the girl behaves in an overtly sexual manner, tries to kiss other people on the mouth (her nannies, mother and uncle). The mother says that the girl wants to touch other people on the behind, inserts her fingers in her underwear and then into other people ’ s mouths and that she had inserted her finger into her cat ’ s rectum. The girl denies remembering any of this.", "...", "During examination the girl attempted to make inappropriate contact with the doctor writing the report. She stopped playing with toys and approached him from behind, tried to hold his upper arm and leant her head against it. This behaviour is regarded as inappropriate in the current situation.", "Recommendations", "It is advised that the girl continue psychotherapeutic counselling currently being performed at ... Polyclinic A.B.R. Given the overall context and ongoing court proceedings, I recommend issuance of regular documents, cooperation with both parents as seen fit by the psychotherapist in charge of the child. In order to determine the forensic issues, in light of the complicated status of the girl and the overall circumstances of the ‘ case ’, it would be necessary to obtain an expert opinion, which could sufficiently determine the psychiatric and psychological characteristics of both parents and their causal link with the behaviour of the child or possible manipulation of the child. There is no professional need for ... double psychotherapy by two psychotherapists ... ”", "41. On 17 November 2014 A ’ s lawyer asked the Z State Attorney ’ s Office to commission a forensic expert report on B.", "42. In reply to the State Attorney ’ s Office letter of 14 November 2014, on 3 December 2014 the A.B.R. Polyclinic submitted its psychological assessment and opinion dated 1 December 2014 and drawn up by psychologist Z.G. The relevant part of that report, reads as follows :", "“1. The child expresses a lack of distance and erotic closeness with people she does not know. On the basis of her playing and drawings and the information given by both parents, it could be concluded that the child expresses a premature interest in sexuality which is repeated constantly, so it cannot be seen as behaviour appropriate for [the child ’ s] age, but as behaviour which indicates [the existence of] trauma.", "2. It is clear that the child is emotionally and socially neglected because of the severe conflict between the parents over a longer period. The neglect is so severe that both parents are responsible for it. It is difficult to tell to what extent and in what way such a parental approach has contributed to the observed behaviour of the child, that is to say her premature and intense interest in sexuality and her sexual behaviour.", "3. I therefore consider that the child, apart from being educationally and emotionally neglected, has also been exposed to inappropriate content and/or conduct by an adult with sexual connotations.", "4. At the time of examination the child was not testable, so the projective techniques which could better explain the parents ’ influence on the observed behaviour could not have been applied.", "5. Before deciding which parent is better placed to have custody of the child, an assessment of [their] capability should be carried out.", "6. The child should certainly [receive] intensive treatment so as to diminish or remove the obstacles from the emotional and social sphere.”", "43. On the same day a senior expert consultant of the Z State Attorney ’ s Office issued a report on the applicants ’ case, the relevant part of which reads as follows:", "“ ... on her mother ’ s initiative, the girl has been examined at various psychological and psychiatric institutions, so one gets the impression that the mother visits various experts and institutions in order to support her accusations and when she does not obtain confirmation of her accusations, she goes to another institution. The girl has hence been treated by the Social Welfare Centre, the Polyclinic, Clinic P and is now treated in Polyclinic A.B.R.", "It transpires from the examinations and opinions of all institutions that the girl behaves in an inappropriately sexualised manner, but they do not establish that such behaviour would be due to sexual abuse by the father. The Polyclinic established that there had been no signs clearly indicating a sexual trauma because the girl did not describe contextually characteristic situations and her affectionate [behaviour] is not in line with verbally described content. On the other hand, [the Polyclinic] did note elements indicating the mother ’ s pressure due to which inducement of the girl could not be excluded, which is a form of emotional abuse.", "...", "Generally it can be concluded that the relationship between former spouses is very disturbed and that the child was left to nannies and has not bonded with either of the parents. Although the child shows erotic behaviour inappropriate for her age, her inducement by the mother is so obvious as well as her taking of the child to various institutions and psychiatrists, that no credibility can any longer be given to the child ’ s statements. Through her behaviour, the mother is pushing the girl even more to regression and emotional trauma, and although she has been warned about this, she ignores the experts. One gets the impression that she contacts institutions until she receives confirmation for her accusations. When experts point out her failures, she becomes verbally aggressive. On the other hand, the father distances himself, he is anxious and depressed and actually participates in the education only passively, sets no boundaries for the girl who has no distance in respect of him and acts appropriately considering her age in a given situation.", "To sum up, the behaviour of both parents and their severely disturbed relationship and conflicts which break down on the girl and continue through institutions, severely endanger the child ’ s further emotional, cognitive and social development, and regression is observed already at this stage and is continuing negatively. I consider both parents responsible for such a state of the girl. I consider that both parents should be included in psychotherapy, which has already been suggested to them, but neither of them has thus far joined any expert treatment nor has asked for help; what is important is that the girl is being taken to various experts, from institution to institution so that she already feels at home there and adapts her behaviour, so no credible statement can any longer be obtained from her.", "... ”", "44. On 31 December 2014 the Z State Attorney ’ s Office informed A and her lawyer that the case had been closed. The relevant part of the letter sent to them reads:", "“ ... after careful assessment of the ... documentation ..., even though it has been concluded with certainty that child B shows erotic behaviour inappropriate for her age, no facts or circumstances have been established which would clearly indicate that the cause of this behaviour is sexual abuse of child B by the suspect C.", "Since in this case reasonable suspicion has not been established that C has sexually abused child B, or that his behaviour amounted to any other criminal act liable to State-assisted prosecution, there is therefore no basis for the State Attorney ’ s Office to process [the case] further.”", "45. On 30 January 2015 the Z State Attorney ’ s Office issued a formal decision not to prosecute. The decision describes in detail all the evidence gathered. The relevant part of its conclusion reads:", "“On the basis of the allegations contained in the criminal complaint, the documentation obtained during the enquiry and [that] submitted by the complainant ... it has been established that there were no signs of either old or fresh injuries on child B ’ s body and genitals ... that child B shows a premature interest in sexuality and erotic behaviour inappropriate for her age, and that both parents should receive appropriate [ psychotherapy]. The fact that child B shows a premature interest in sexuality and erotic behaviour inappropriate for her age has been established in interviews with complainant A, [the child ’ s maternal grandmother, A ’ s siblings] D and E, and by the opinions given by experts of various institutions ... However, even though the A.B.R. Polyclinic ’ s report ... shows that the child was exposed to inappropriate content and/or conduct by an adult with sexual connotations, the fact is that none of the four institutions which had previously treated the child, including the A.B.R. Polyclinic, has established that the cause of this erotic behaviour ... is sexual abuse by her father C. The report by the Polyclinic ’ s multidisciplinary team ... indicates that there are no clear signs of sexual abuse. On the other hand, elements showing pressure by the mother were present. This could not exclude the possibility of the girl ’ s inducement ... which represents emotional abuse. Furthermore, elements of pressure by the mother on the child were observed by other experts ... It has been established that the conduct of the mother, who is well informed about the manner in which sexually abused children are treated and monitored, led the child to give statements which were often contradictory or untrue, which is why it is no longer possible to obtain a truthful statement from the child.”", "The decision then concludes that, taking into account all the facts and circumstances, it was not possible to conclude that C had committed any criminal offence liable to State-assisted prosecution. A was also informed that she could lodge a request for an investigation with a competent county court ’ s investigating judge within eight days.", "46. A complied with the instruction on 26 February 2015 by submitting a request to an investigating judge of the Z County Court seeking an investigation into the allegations of sexual abuse of B by her father.", "47. A also lodged a constitutional complaint against the decision of the Z State Attorney ’ s Office of 30 January 2015. It was declared inadmissible by the Constitutional Court on 28 April 2015 on the ground that the impugned decision did not amount to an act by which “a competent court has decided on the merits about a right or an obligation of the applicant or a criminal charge against her ”.", "48. On 30 October 2015 an investigation judge of the Z County Court dismissed A ’ s request for an investigation (see paragraph 46 above) on the grounds that the requirement of a reasonable suspicion against C had not been met. A ’ s appeal against that decision was dismissed by a three-judge panel of the same court on 8 December 2015.", "C. Further developments", "49. On 27 August 2014 the Centre ordered three measures to protect the rights of B : supervision of parental care of both parents, supervision of personal contact between B and C and providing expert assistance and support with parental care.", "50. The measure of supervision of parental care was implemented in respect of both parents for the period 30 August 2014 to 29 February 2016. A psychologist was assigned to observe the manner in which parental care was carried out and she gave expert advice to the parents on how to minimise the tension between them. Monthly reports were submitted to the Centre.", "51. The measure of supervision of personal contact between B and C was implemented on 2 September 2016. The supervisor assigned submits monthly reports to the Centre.", "52. The measure of expert assistance was implemented in respect of both parents on 30 September 2016. A pedagogical expert was appointed to assist A with her parental care of B.", "53. The documents submitted by the parties show the following.", "54. B continues to be seen by a psychiatrist.", "55. On 28 August 2014 a meeting was held at the Centre with a psychologist to inform the parents about the measure of supervision of parental care. It was agreed that the psychologist would see the mother once every two weeks and that the father would also see B every second week in the presence of the psychologist. Reports of the psychologist show that these meetings have been held regularly.", "56. The psychologist also made contact with and consulted the psychiatrist treating B, the relevant professionals from the kindergarten and school attended by B and the psychologist treating C.", "57. On 13 August 2014 the Z Municipal Court ordered contact between B and C every Tuesday afternoon for two hours, under the supervision of a social worker. It appears that this order has been complied with.", "58. A attended counselling for single parents on her own initiative.", "59. Detailed reports were submitted to the Centre after every meeting with each of the parents, on contact between B and C and members of his family and on meetings with B. The reports show that B and C have a good relationship and that A insists on not communicating with C.", "D. Other proceedings", "60. Several sets of proceedings concerning the custody of B and contact rights of C were pending before the national authorities at the material time.", "61. On 7 May 2018 a municipal court awarded C custody of B, finding it in the child ’ s best interest to live with her father.", "IV. INTERNATIONAL MATERIALS", "A. United Nations", "77. The relevant provisions of the Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows:", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "...", "Article 19", "1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.", "Article 34", "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:", "(a) The inducement or coercion of a child to engage in any unlawful sexual activity;", "(b) The exploitative use of children in prostitution or other unlawful sexual practices;", "(c) The exploitative use of children in pornographic performances and materials. ”", "B. Council of Europe", "1. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse", "78. This Convention obliges its parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct. It was adopted in Lanzarote on 25 October 2007 and entered into force on 1 July 2010. As regards Croatia, it was ratified on 21 September 2011 and came into force on 1 January 2012. The relevant parts read:", "Article 4 – Principles", "“Each Party shall take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to protect children.”", "Article 14 – Assistance to victims", "“1. Each Party shall take the necessary legislative or other measures to assist victims, in the short and long term, in their physical and psycho-social recovery. Measures taken pursuant to this paragraph shall take due account of the child ’ s views, needs and concerns.", "...", "4. Each Party shall take the necessary legislative or other measures to ensure that the persons who are close to the victim may benefit, where appropriate, from therapeutic assistance, notably emergency psychological care.”", "Chapter VI – Substantive criminal lawArticle 18 – Sexual abuse", "“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:", "a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;", ".. .”", "Chapter VII – Investigation, prosecution and procedural lawArticle 30 – Principles", "“1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.", "2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate.", "3. Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay.", "... ”", "Article 31 – General measures of protection", "“ 1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:", "a. informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases;", "...", "d. providing them with appropriate support services so that their rights and interests are duly presented and taken into account;", "...", "g. ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact.", "...", "4. Each Party shall provide for the possibility for the judicial authorities to appoint a special representative for the victim when, by internal law, he or she may have the status of a party to the criminal proceedings and where the holders of parental responsibility are precluded from representing the child in such proceedings as a result of a conflict of interest between them and the victim.", "... ”", "Article 34 – Investigations", "“1. Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. Such units or services shall have adequate financial resources.", "...”", "Article 35 – Interviews with the child", "“1. Each Party shall take the necessary legislative or other measures to ensure that:", "a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;", "b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose;", "c. interviews with the child are carried out by professionals trained for this purpose;", "d. the same persons, if possible and where appropriate, conduct all interviews with the child;", "e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;", "f. the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.", "2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.", "... ”", "79. The relevant part of the Explanatory Report to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse reads as follows:", "Article 31 – General measures of protection", "“ ...", "227. Paragraph 4 makes provision for the situation in cases of sexual abuse within the family, in which the holders of parental responsibility, while responsible for defending the child ’ s interests, are involved in some way in the proceedings in which the child is a victim (where there is a “conflict of interest”). In such cases, this provision makes it possible for the child to be represented in judicial proceedings by a special representative appointed by the judicial authorities. This may be the case when, for example, the holders of parental responsibility are the perpetrators or joint perpetrators of the offence, or the nature of their relationship with the perpetrator is such that they cannot be expected to defend the interests of the child victim with impartiality.", "... ”", "Article 35 – Interviews with the child", "“ 236. This provision concerns interviews with the child both during investigations and during trial proceedings. ... The main purpose of the provision is the same as that described more generally in connection with Article 30: to safeguard the interests of the child and ensure that he or she is not further traumatised by the interviews. ...", "237. In order to achieve these objectives, Article 35 lays down a set of rules designed to limit the number of successive interviews with children, which force them to relive the events they have suffered, and enable them to be interviewed by the same people, who have been trained for the purpose, in suitable premises and a setting that is reassuring ...", "238. Paragraph 2, provides that interviews with a child victim or, where appropriate, those with a child witness, may be videotaped for use as evidence during the criminal proceedings. The main objective of this provision is to protect children against the risk of being further traumatised. The videotaped interview can serve multiple purposes, including medical examination and therapeutic services, thus facilitating the aim of limiting the number of interviews as far as possible. It reflects practices successfully developed over the last few years in numerous countries.", "... ”", "80. Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse (Lanzarote Committee) adopted a 1 st implementation report on the protection of children on sexual abuse in the circle of trust on 4 December 2015. The relevant parts of that report read as follows:", "“ III. BEST INTEREST OF THE CHILD AND CHILD FRIENDLY CRIMINAL PROCEEDINGS", "77. Child sexual abuse is typically a very intimate and secretive act ... A child ’ s ability and willingness to report their victimisation plays a crucial role in legal and therapeutic intervention. It represents the most valuable source of information and it is on this that the whole case may rest.", "78. In this respect it is crucial to avoid the negative consequences which result from inappropriate and repetitive interviewing techniques and adverse facilities where these interviews may take place. To guarantee the rights and best interests of child victims of sexual abuse, authorities need to recognize that they have to act collectively, not just as a government or a judicial system, but all together as a society. Acting collectively means implementing measures to protect children, which are not confined to individual actions ... but which are truly child-focused and comprehensive with regard to prevention, intervention and rehabilitation. An interdisciplinary and multi-agency approach delivered by all the different entities in society whose responsibility is to carry out these tasks is therefore paramount.", "...", "III.5 Article 31 § 4: Appointment by the judicial authorities of a special representative for the victim to avoid a conflict of interest between the holders of parental responsibility and the victim", "125. Considering that the level of family support is one of the most important predictors of the degree to which the child can adjust following his or her disclosure, family support can be heavily disrupted when the alleged perpetrator is part of the child ’ s family environment. In Belgium and Croatia the non-offending parent will often be appointed as special representative if this is in the child ’ s best interest. However, although this option can provide valuable emotional support for the child ’ s future wellbeing, it may also create a conflict of interests with the child, especially if the non-offending parent is involved emotionally.", "... ”", "2. Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence", "81. The Convention was adopted in Istanbul on 11 May 2011 and entered into force on 1 August 2014. It was signed by Croatia on 22 January 2013, ratified on 1 2 June 201 8 and came into force on 1 October 2018. The relevant part reads:", "Chapter IV – Protection and supportArticle 18 – General obligations", "“1. Parties shall take the necessary legislative or other measures to protect all victims from any further acts of violence.", "2. Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co ‐ operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non ‐ governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services as detailed in Articles 20 and 22 of this Convention.", "3. Parties shall ensure that measures taken pursuant to this chapter shall:", "– be based on a gendered understanding of violence against women and domestic violence and shall focus on the human rights and safety of the victim;", "– be based on an integrated approach which takes into account the relationship between victims, perpetrators, children and their wider social environment;", "– aim at avoiding secondary victimisation;", "...", "– allow, where appropriate, for a range of protection and support services to be located on the same premises;", "– address the specific needs of vulnerable persons, including child victims, and be made available to them.", "4. The provision of services shall not depend on the victim ’ s willingness to press charges or testify against any perpetrator.", "5. Parties shall take the appropriate measures to provide consular and other protection and support to their nationals and other victims entitled to such protection in accordance with their obligations under international law.”", "Article 19 – Information", "“Parties shall take the necessary legislative or other measures to ensure that victims receive adequate and timely information on available support services and legal measures in a language they understand.”", "Chapter VI – Investigation, prosecution, procedural law and protective measuresArticle 49 – General obligations", "“1. Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.", "... ”", "Article 50 – Immediate response, prevention and protection", "“1. Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by offering adequate and immediate protection to victims.", "... ”", "Article 56 – Measures of protection", "“ ...", "2. A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.”", "3. Recommendation of the Committee of Ministers on assistance to crime victims", "82. The relevant part of the Recommendation Rec (2006) 8 of the Committee of Ministers to member States on assistance to crime victims, adopted by the Committee of Ministers on 14 June 2006 at the 967 th meeting of the Ministers ’ Deputies, reads as follows:", "1. Definitions", "“1.3. Secondary victimisation means victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim.”", "2. Principles", "“2.1. States should ensure the effective recognition of, and respect for, the rights of victims with regard to their human rights; they should, in particular, respect the security, dignity, private and family life of victims and recognise the negative effects of crime on victims.", "2.3. The granting of these services and measures should not depend on the identification, arrest, prosecution or conviction of the perpetrator of the criminal act.”", "3. Assistance", "“3.3. Victims should be protected as far as possible from secondary victimisation.", "3.4. States should ensure that victims who are particularly vulnerable, either through their personal characteristics or through the circumstances of the crime, can benefit from special measures best suited to their situation.”", "10. ProtectionProtection of physical and psychological integrity", "“10.1. States should ensure, at all stages of the procedure, the protection of the victim ’ s physical and psychological integrity. Particular protection may be necessary for victims who could be required to provide testimony.", "10.2. Specific protection measures should be taken for victims at risk of intimidation, reprisals or repeat victimisation.”", "14. Co-ordination and co-operation", "“14.1. Each state should develop and maintain co-ordinated strategies to promote and protect the rights and interests of victims.", "14.2. To this end, each state should ensure, both nationally and locally, that:", "– all agencies involved in criminal justice, social provision and health care, in the statutory, private and voluntary sectors, work together to ensure a co-ordinated response to victims;", "... ”", "4. Child Friendly Justice", "83. Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice were adopted by the Committee of Ministers on 17 November 2010. The relevant part reads :", "“ B. Best interests of the child", "1. Member states should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them.", "2. In assessing the best interests of the involved or affected children:", "a. their views and opinions should be given due weight;", "b. all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times;", "c. a comprehensive approach should be adopted by all relevant authorities so as to take due account of all interests at stake, including psychological and physical well-being and legal, social and economic interests of the child.", "3. The best interests of all children involved in the same procedure or case should be separately assessed and balanced with a view to reconciling possible conflicting interests of the children.", "4. While the judicial authorities have the ultimate competence and responsibility for making the final decisions, member states should make, where necessary, concerted efforts to establish multidisciplinary approaches with the objective of assessing the best interests of children in procedures involving them.", "C. Dignity", "1. Children should be treated with care, sensitivity, fairness and respect throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity. This treatment should be given to them, in whichever way they have come into contact with judicial or non-judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case.", "2. Children shall not be subjected to torture or inhuman or degrading treatment or punishment.", "...", "2. Legal counsel and representation", "37. Children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties.", "...", "42. In cases where there are conflicting interests between parents and children, the competent authority should appoint either a guardian ad litem or another independent representative to represent the views and interests of the child.", "43. Adequate representation and the right to be represented independently from the parents should be guaranteed, especially in proceedings where the parents, members of the family or caregivers are the alleged offenders.", "6. Evidence/statements by children", "...", "68. Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim.", "69. Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator.", "V. Promoting other child-friendly actions", "Member states are encouraged to:", "...", "j. set up child-friendly, multi-agency and interdisciplinary centres for child victims and witnesses where children could be interviewed and medically examined for forensic purposes, comprehensively assessed and receive all relevant therapeutic services from appropriate professionals;", "... ”" ]

[ "II. DOMESTIC LAW", "A. Criminal Code", "62. Sexual abuse of a child under fifteen years of age (Article 158), satisfaction of lust in front of a child (Article 160) and the introduction of children to pornography (Article 164) are all offences under the Criminal Code ( Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012).", "B Code of Criminal Procedure", "63. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette no. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013 and 145/2013 ) at the material time provided as follows :", "Article 2", "“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...", "(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.", "(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.", "(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”", "Article 44", "“(1) A child victim of a criminal offence ... has the right to :", "1. a representative paid by the State; ...", "2. be accompanied by a person of his or her trust when participating in measures [taken by the authorities];", "3. confidentiality of personal data;", "4. exclusion of the public [from proceedings]", "... ”", "Article 205", "“(1) [ A criminal] report shall be filed with the relevant State Attorney in writing, orally or by other means.", "...", "(3) If the report was filed with the court, the police authority or a State Attorney lacking jurisdiction, they shall receive it and immediately forward it to the State Attorney having jurisdiction ... ”", "Article 207", "“(2) The police shall notify the State Attorney about all inquiries into criminal offences immediately, and not later than 24 hours from the moment the action was conducted ...", "...", "(4) On the basis of conducted inquiries, the police shall ... compose a criminal complaint or a report about the conducted inquiries, stating all the evidence which it gathered ...", "(5) Should the police subsequently learn about new facts [or] evidence ... it shall collect the necessary information and inform the State Attorney about it immediately ... ”", "Article 285", "“(1) The following persons are not obliged to give evidence as witnesses:", "...", "4. a child who, owing to his or her age and emotional development, is unable to understand the meaning of the right not to give evidence as a witness cannot be heard as a witness, but the information obtained from him or her through experts, relatives or other persons who have been in contact with the child may serve as evidence.", "... ”", "C. Act on Protection from Domestic Violence", "64. Section 4 of the Act on Protection from Domestic Violence ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 116/2003 ), defines domestic violence as follows:", "“ ... every use of physical force or psychological pressure against the integrity of a person; every other behaviour of a family member which can cause or potentially cause physical or psychological pain; causing feelings of fear or being personally endangered or feeling of offended dignity; physical attack regardless of whether or not it results in physical injury, verbal assaults, insults, cursing, name-calling and other forms of severe disturbance, sexual harassment; spying and all other forms of disturbing; illegal isolation or restriction of the freedom of movement or communication with third persons; damage or destruction of property or attempts to do so. ”", "D. Family Act", "65. The relevant provisions of the Family Act ( Obiteljski zakon, Official Gazette no. 103/2015) provide:", "Section 127", "“(1) Parents have a duty and responsibility to protect the rights and welfare of their child.", "(2) In the cases prescribed by this Act other family members also have the duty and responsibility referred to in paragraph 1 of this section.", "(3) Measures to protect the rights and welfare of a child are applied in respect of the parents.", "(4) Measures which may be taken by a social welfare centre to protect the rights and welfare of a child may also be applied in respect of persons who care for a child on a daily basis.”", "Section 128", "“ When determining the appropriate measure to protect the rights and welfare of a child, the body conducting the procedure shall ensure that a measure is applied which restricts as little as possible a parent ’ s right to care for the child where it is possible to protect the rights and welfare of the child by such a measure.”", "Section 131", "“ Measures to protect the rights and welfare of a child shall be ordered on the basis of an expert assessment if it has been established that there has been an infringement of the child ’ s rights or welfare or that the child ’ s rights or welfare are at risk.”", "Section 134", "“A social welfare centre may apply [the following measures] to protect the rights and welfare of a child:", "1. An urgent measure placing the child outside his or her family;", "2. A warning about the errors and failures in exercising parental care;", "3. A measure of expert assistance and support with parental care;", "4. A measure of intensive expert assistance and supervision of parental care.”", "E. National Strategy for the Rights of Children in the Republic of Croatia", "66. The National Strategy for the Rights of Children in the Republic of Croatia for the period 2014 to 2020 ( Nacionalna strategija za prava djece u Republici Hrvatskoj ) was adopted in September 2014 by the Croatian Government. Four main aims were identified: ensuring that services in various areas were adapted to children (such as justice, health care, social welfare, education, sport and culture ), eliminating all forms of violence against children, ensuring that the rights of children in vulnerable situations are respected and ensuring the active participation of children.", "F. Protocol on Conduct in Domestic Violence Cases", "67. The Protocol on Procedures in Domestic Violence Cases ( Protokol o postupanju u slučaju nasilja u obitelji – hereinafter “Protocol 1 ”) was issued in 2008 by the Ministry of Family, Homeland War Veterans and Intergenerational Solidarity. It relies on the definition of domestic violence, as stated in the Act on Protection against Domestic Violence Act ( see paragraph 64 above ).", "68. As regards the duties of the police, Protocol 1 provides that when the police receive information in any way and from anyone about an instance of domestic violence, an officer must interview the victim in separate premises without the alleged perpetrator being present. If the victim or witness of domestic violence is a child, specially trained officers must carry out all tasks.", "69. As regards the duties of social welfare centres, Protocol 1 provides that such centres are obliged to provide help to the victims of domestic violence in obtaining legal aid, encourage the victim to seek appropriate counselling, and assess whether the best interests of a child victim of domestic violence require that a special guardian be appointed so that his or her rights are completely protected in criminal or minor offences proceedings.", "G. Protocol on Conduct in Cases of Sexual Violence", "70. The Protocol on Conduct in Cases of Sexual Violence ( Protokol o postupanju u slučaju seksualnog nasilja – hereinafter “Protocol 2” ) was adopted by the Croatian Government on 4 September 2014. It provides that all actions by the police, save for urgent measures, are to be carried out by officers specially trained in sexual violence cases and that the police must inform the victim of the possibility of obtaining expert help for the protection of his or her physical and psychological well-being. The police are obliged to immediately inform a State attorney ’ s office of the information gathered.", "71. As regards the duties of social welfare centres, Protocol 2 provides that centres are obliged to provide victims with help in obtaining legal aid, as well as counselling and psychosocial support.", "H. Protocol on Conduct in Cases of Ill-treatment and Neglect of Children", "72. The Protocol on Conduct in Cases of Ill-treatment and Neglect of Children ( Protokol o postupanju u slučaju zlostavljanja i zanemarivanja djece – hereinafter “Protocol 3” ) was adopted by the Croatian Government in November 2014.", "73. Protocol 3 provides that the best interests of a child have primary importance in all matters covered by it. The procedures followed should be efficient in order to ensure that the child is given prompt and co-ordinated protection from further ill-treatment, including sexual abuse, or neglect, as well as provided appropriate support. All procedures conducted by State bodies are to be carried out by experts in the relevant fields.", "74. A social welfare centre should appoint a special guardian for the child if its experts assess that his or her interests are in conflict with those of the parent. It should also instruct the parent to seek counselling or involve the child in appropriate forms of psychosocial help, rehabilitation programmes and other forms or expert help and support. The social welfare centre is also obliged to provide information to the parent about any pending procedures, activities planned and their possible consequences and the rights of the child. It must also co-operate with other bodies and institutions involved and organise consultation meetings so as to ensure a coordinated approach in order to provide the child with appropriate help, support and treatment with the aim of protecting him or her from further trauma, and to prevent repeated interviews or examinations.", "75. Medical institutions are obliged to ensure cooperation through a multi-disciplinary team approach in order to avoid repetition of the traumatic experience.", "III. EUROPEAN UNION LAW", "76. Directive of the European Parliament and of the Council (2012/29/EU) of 25 October 2012 establishes minimum standards on the rights, support and protection of victims of crime. The relevant part of the Directive, which was to be implemented into the national laws of the European Union Member States by 16 November 2015, provides as follows:", "Article 1 Objectives", "“2. Member States shall ensure that in the application of this Directive, where the victim is a child, the child ’ s best interests shall be a primary consideration and shall be assessed on an individual basis. A child-sensitive approach, taking due account of the child ’ s age, maturity, views, needs and concerns, shall prevail. The child and the holder of parental responsibility or other legal representative, if any, shall be informed of any measures or rights specifically focused on the child.”", "Article 19", "“A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them ...”", "Article 20 – Right to protection of victims during criminal investigations", "“Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:", "(a) interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority;", "(b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation;", "...", "(d) medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.”", "Article 22 Individual assessment of victims to identify specific protection needs", "“4. For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.”", "Article 24 Right to protection of child victims during criminal proceedings", "“1. In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child:", "(a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings;", "(b) in criminal investigations and proceedings, in accordance with the role of victims in the relevant criminal justice system, competent authorities appoint a special representative for child victims where, according to national law, the holders of parental responsibility are precluded from representing the child victim as a result of a conflict of interest between them and the child victim, or where the child victim is unaccompanied or separated from the family;", "(c) where the child victim has the right to a lawyer, he or she has the right to legal advice and representation, in his or her own name, in proceedings where there is, or there could be, a conflict of interest between the child victim and the holders of parental responsibility.", "The procedural rules for the audiovisual recordings referred to in point (a) of the first subparagraph and the use thereof shall be determined by national law.”", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION AS REGARDS THE ALLEGATIONS OF SEXUAL ABUSE OF B", "84. A complained on behalf of B that the domestic authorities had failed to provide a proper response to the allegations of sexual abuse of B by her father, and that they had had no effective remedy in that regard. They relied on Articles 3, 8 and 13 of the Convention.", "85. The Court, being master of the characterisation to be given in law to the facts of the case, will examine this complaint under Articles 3 and 8 of the Convention. The relevant parts read:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 § 1", "“Everyone has the right to respect for his private and family life ...”", "A. Admissibility", "1. The parties ’ submissions", "86. The Government argued that the complaints under Articles 3 and 8 were premature since two sets of civil proceedings at national level, both concerning the custody of B, were still pending at the material time.", "87. The applicants objected, arguing that these proceedings had no bearing on the State ’ s obligations under Articles 3 and 8 of the Convention.", "2. The Court ’ s assessment", "(a) As regards A ’ s victim status", "88. Even though the Government did not raise objections concerning A ’ s victim status, that issue is a matter which goes to the Court ’ s jurisdiction, which the Court thus must examine of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 60, ECHR 2016 (extracts)).", "89. The Court reiterates that in order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ... ”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Micallef v. Malta [GC], no. 17056/06, § 44, ECHR 2009). This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX).", "90. In the present case, the applicants alleged that the response of the national authorities to the allegations of sexual abuse of B by her father had not been in compliance with the State ’ s obligations under Articles 3 and 8 of the Convention. This complaint concerns B only. A was only a representative of B in the proceedings before the national authorities. In the present case, the Court does not find any particular circumstances that would justify accepting the victim status of the mother as well.", "91. Accordingly, this complaint, in so far as it concerns A, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.", "(b) Whether the application is premature", "92. The Court reiterates that the alleged breaches of Articles 3 and 8 of the Convention concern the inadequate response of the national authorities to the allegations of sexual abuse of a child. The Court has held that in such circumstances it falls upon the member States to ensure that efficient criminal-law provisions are in place (see, for example, M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII ). The protection afforded by civil and custody proceedings is insufficient (see X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91). Therefore, the fact that the civil and custody proceedings referred to by the Government were pending at the material time (see paragraph 86 above) does not have as a consequence that the application is premature.", "( c ) Conclusion as to the admissibility", "93. The Court notes that these complaints in so far as they concern B (hereinafter “the applicant”) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "94. The applicant contended that the criminal - law mechanisms existing in Croatia as regards allegations of sexual abuse of children were ineffective.", "95. She considered that the national authorities should have carried out investigations into the following three issues – whether she had been sexually abused by her father; whether she had been sexually abused by someone else; and whether she had been emotionally abused by her mother.", "96. As regards the investigation into the alleged sexual abuse of the applicant by her father, the authorities had not acted promptly. Thus, after A had reported the sexual abuse of the applicant to the police, the latter had not been taken to a gynaecologist within seventy -two hours. No forensic expert interview was ever done in order to clarify the facts of the case (see paragraph 41 above). The psychological and psychiatric assessment of the father, C, had not been carried out properly in a specialised facility.", "97. Further to this, the authorities had not efficiently investigated whether the applicant had been emotionally abused and manipulated by her mother.", "98. The authorities had not once investigated the possibility that the applicant had been sexually abused by someone else, even though such a possibility had been suggested by a psychologist (see paragraph 42 above).", "99. The authorities in charge had not considered appointing a special guardian for the applicant during the proceedings at issue, even though it had been obvious that neither A nor C had been capable of protecting her best interests. In these circumstances only a special guardian could have ensured that her best interests were in reality protected.", "100. Furthermore, at the time when the expert reports had indicated that A might have influenced and manipulated the applicant, the relevant social welfare centre failed to remove the applicant from her parents. The centre had not done anything to prevent A from constantly changing the doctors and psychologists treating the applicant, which had amounted to her secondary victimisation.", "101. The Government, relying extensively on the details of the facts of the case, argued that the authorities had carried out all the necessary steps in order to establish the circumstances of the alleged sexual abuse of the applicant by her father. As regards the alleged lack of promptness in the initial stages of the investigation, the Government pointed out that the requirement of a medical examination with a seventy-two hour period relied on by the applicant had started to run from the moment of the alleged sexual contact. Since A had informed the police and the social welfare centre about the alleged sexual abuse only several days after the applicant had last seen C, that 72-hour period had already elapsed.", "102. As regards the examination of B carried out by the team of experts at the Polyclinic, which started only four days after the alleged sexual abuse had been reported, the Government maintained that that team had been comprised of experts specially trained for that type of interview. The applicant had been seen by four members of that team, including a paediatrician. A and C had also been seen by the members of the team but had not been present during the interviews with the applicant.", "103. The Government stressed that all the procedures had been carried out by experienced professionals and experts in the relevant fields and that those procedures had been of a nature appropriate to the applicant ’ s age. As regards a forensic interview, the Government submitted that, given the applicant ’ s young age, such interviewing techniques could to a large extent not have been applied to her at the material time.", "104. In parallel, starting the very next day after the alleged abuse had been brought to their attention, the competent authorities interviewed all persons who might have had any knowledge of the events. During the ensuing investigation all relevant evidence had been gathered and properly assessed. The fact that the authorities had decided not to prosecute could not be seen as arbitrary or a result of any failure on their part.", "2. The Court ’ s assessment", "105. The Court is called upon to examine the adequacy of the legal framework governing the conduct of the authorities in investigating and processing cases of sexual abuse of children. It is also called upon to examine whether in the criminal proceedings concerning alleged sexual battery by the father against the applicant, who at the time was four and a half years old, the competent authorities had carried out a thorough, effective and prompt investigation as well as whether they had afforded sufficient protection to the applicant ’ s right to respect for private life, and especially for her personal integrity in light of her vulnerability due to her young age and alleged sexual abuse and taking the best interests of the child as a primary consideration. Thus, in issue is not only the effectiveness of investigation, but the alleged lack or inadequacy of measures aimed at protecting in criminal proceedings the rights of a child, who had allegedly been the victim of sexual abuse ( compare Y. v. Slovenia, no. 41107/10, § 101, ECHR 2015 (extracts)).", "(a) General principles", "106. Given the nature and substance of the applicant ’ s complaints, they fall to be examined under Articles 3 and 8 of the Convention, both of which entail an obligation on the State to safeguard the physical and psychological integrity of a person (see X and Y v. the Netherlands, cited above, §§ 22-23; M. and C. v. Romania, no. 29032/04, §§ 107-11, 27 September 2011; M.P. and Others v. Bulgaria, no. 22457/08, §§ 108-10, 15 November 2011; and Okkalı v. Turkey, no. 52067/99, § 54, ECHR 2006 XII (extracts)). Children and other vulnerable individuals, in particular, are entitled to effective protection (see O ’ Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts); X and Y v. the Netherlands, cited above, §§ 23-24 and 27, and M.C. v. Bulgaria, cited above, § 150).", "107. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 of the Convention and in other instances under Article 8 taken alone or in combination with Article 3 – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Söderman v. Sweden [GC], no. 5786/08, § 80, ECHR 2013 with further references).", "108. Positive obligations of the states under Article 3 and 8 of the Convention also include requirements related to the effectiveness of the investigation (see M.C. v. Bulgaria, cited above, § § 150-152 and, as regards general principles, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § § 233-238, 30 March 2016; Bouyid v. Belgium [GC], no. 23380/09, § § 114-123, ECHR 2015; and Tadić v. Croatia, no. 10633/15, § 66, 23 November 2017 ). The Court has held that an effective investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence. The investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. A requirement of promptness and reasonable expedition is an important factor. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case. Moreover, notwithstanding its subsidiary role in assessing evidence, the Court reiterates that where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Y. v. Slovenia, cited above, § 96).", "109. The Court has also accepted that positive obligations under Articles 3 and 8 include the protection of the rights of victims in criminal proceedings (see Y. v. Slovenia, cited above, § § 97 and 101).", "110. Thus regarding, more specifically, serious acts such as rape and other forms of sexual abuse of children, including sexual battery, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that criminal-law provisions for the effective punishment of sexual abuse of children are in place and that they are applied in practice through effective investigation and prosecution (ibid., § 82, and M.C. v. Bulgaria, cited above, § 153). Yet, there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable ( see Söderman, cited above, § 83 with further references).", "111. The Court reiterates that in cases of sexual abuse children are particularly vulnerable (see M.C. v. Bulgaria, cited above, §§ 150 and 183; M.G.C. v. Romania, no. 61495/11, § 56, 15 March 2016). The Court also recalls that the right to human dignity and psychological integrity requires particular attention where a child is the victim of violence (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012; see also paragraph 78 above). The Court recalls that the obligations incurred by the State under Articles 3 and 8 of the Convention in cases such as this, involving and affecting a child, allegedly victim of sexual abuse, require the effective implementation of children ’ s right to have their best interests as a primary consideration (see paragraphs 77, 78, 81 and 83 above, see also in various contexts Neulinger and Shuruk, cited above, § 134; Scozzari and Giunta, cited above, § 169; and Blokhin v. Russia [GC], no. 47152/06, § 138, ECHR 2016) and to have the child ’ s particular vulnerability and corresponding needs adequately addressed by the domestic authorities (see, mutatis mutandis, O ’ Keeffe v. Ireland [GC], cited above, § 146; and M.G.C. v. Romania, cited above, § 73).", "112. In view of the above, the Court considers that States are required under Articles 3 and 8 to enact provisions criminalising the sexual abuse of children and to apply them in practice through effective investigation and prosecution ( see paragraph 110 above; see also X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91; Söderman, cited above, §§ 82-83; and M.G.C., cited above, §§ 57-58 ), being thereby mindful of particular vulnerability of children, their dignity and their rights as children and as victims. These obligations also stem from other international instruments, such as, inter alia, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (see paragraphs 78 to 81 above, including the relevant parts of the Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, see paragraph 83 above).", "113. Finally, the Court recalls that where a particularly important facet of an individual ’ s existence or identity is at stake, or where the activities at issue involve a most intimate aspect of private life, the margin allowed to the State is correspondingly narrowed (see Söderman, cited above, §§ 78 ‑ 79, with further references).", "(b ) Application of these principles in the present case", "114. The Court notes at the outset that on 16 June 2014 A went to the police and a day later to the competent social welfare centre to report that her daughter B had been sexually abused by her father. Several witnesses confirmed the allegations of overtly sexualised behaviour of B (see paragraphs 11, 14 and 36 above), and A also said that B had told her and her sister that her father had played sexualised games with her (see paragraphs 8 and 11 above). These allegations were sufficient to engage the authorities ’ obligation to investigate the situation.", "115. The Court notes that there are three aspects to the applicant ’ s complaints. Firstly, whether there had been an appropriate legal and regulatory framework for the protection of her rights under Articles 3 and 8 of the Convention; secondly, whether in the application of that framework to her particular case the national authorities had complied with their procedural obligations to conduct an effective investigation; and, thirdly, whether in conducting their investigation the national authorities have sufficiently taken into consideration her rights as a child victim of sexual abuse.", "116. The authorities have to be prepared for such difficult situations as allegations of sexual abuse of children by persons close to them, and be ready to face them properly by enacting efficient criminal-law provisions concerning sexual activity with children and by conducting an effective investigation into any such allegation (see paragraph 11 0 above; see also Söderman, cited above, §§ 82-83; and C.A.S. and C.S., cited above, §§ 71 ‑ 7 2 ). In this connection the Court notes that the Lanzarote Committee in its 1 st implementation report on the protection of children on sexual abuse in the circle of trust pointed out that the authorities should also ensure the coordination and collaboration of the different players who intervene for and with the child victim (see paragraph 80 above).", "117. As to the criminal-law mechanisms provided in the Croatian legal system in connection with the State ’ s obligations under Articles 3 and 8 of the Convention, it is not disputed that the criminal law prohibited the sexual abuse alleged by the applicants as an aggravated offence when compared to the same acts against adult individuals and provided for the prosecution and effective punishment of those responsible (see paragraphs 62 and 63 above).", "118. The Court further notes that the Code of Criminal Procedure contains a provision ensuring special rights of a child victim of a criminal offence (see paragraph 63 above).", "119. The Court also observes that certain rules on the procedures to be followed by authorities such as the police, social welfare centres or medical institutions in Croatia in cases of domestic violence and/or sexual abuse of children are provided for in three Protocols adopted by the Croatian Government (see paragraphs 67 - 75 above). Those Protocols contain rules which require co-ordinated action by all the authorities involved in cases of sexual abuse of children. The procedures followed must be efficient and respectful of the physical and psychological integrity of the child, whose best interests are of primary importance. At the time when A made allegations of sexual battery of B, Protocol 1 had already been in force, whereas Protocols 2 and 3 were adopted while the allegations were being assessed by the national authorities. The Court notes that none of those Protocols envisaged a detailed flowchart which the domestic authorities had to follow in cases of alleged sexual abuse of a child.", "120. However, the Court ’ s responsibility being the pronouncing on whether a certain situation amounts a violation of the Convention and not identifying best practices, which would be particularly beneficial in cases such as the present one (see, mutatis, mutandis, Muršić v. Croatia [GC], no. 7334/13, § 113, ECHR 2016), it is satisfied that in Croatia there exists an adequate legal and regulatory framework relevant for the specific circumstances of the present case.", "121. The Court will now examine whether the domestic authorities ’ compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s procedural obligations under Articles 3 and 8 of the Convention. In this connection, the Court considers that the criminal-law mechanisms should be implemented so as to address the particular vulnerability of the applicant as a child of a young age, who had allegedly been a victim of sexual abuse by her father, taking the child ’ s best interests as a primary consideration and in this connection to afford protection to her victim ’ s rights and avoid secondary victimisation ( compare Y. v. Slovenia, cited above, §§ 101-104 and international materials as well as domestic law cited in paragraphs 62 - 75 above ).", "122. The Court notes that on 16 June 2014 A informed the police and the day after the relevant social welfare centre about the alleged sexual abuse of her daughter. Whereas certain criticism might be directed at the authorities for not organising an interview of B with the competent experts of their own motion, the Court notes that at that time A had already contacted the Polyclinic on the advice of “the Brave Telephone” and that an appointment in the Polyclinic, where the applicant was eventually interviewed, had been scheduled for 20 June 2014, four days after the incident had been reported (see paragraph 10 above). Moreover, it cannot be said that the relevant social welfare centre or the police remained inactive in this sense, as they both contacted the Polyclinic urging it to deliver its findings (see paragraph 18 and 20 above).", "123. At the Polyclinic, the applicant was seen by a team of experts, including a paediatrician (see paragraph 22 above). Further to this, on 2 July 2014, at the Polyclinic ’ s instruction, B was seen by a gynaecologist, albeit with a considerable delay. No evidence of sexual abuse was found (see paragraph 21 above). The final expert report issued by the Polyclinic of 4 July 2014 established that B did not show any signs of being sexually abused and that there had been pressure and the possibility of inducement by the mother (see paragraph 22 above).", "124. The Court further observes that subsequent psychological reports were all inconclusive. The expert report of 10 November 2014 stated that B described sexualised behaviour of C towards her and that the child needed to continue therapy (see paragraph 40 above). The expert report of 1 December 2014 established that B had been exposed to content and/or conduct of a sexualised nature by an adult, which had resulted in her behaving in an overtly sexualised manner (see paragraph 42 above).", "125. As to the applicant ’ s assertion that none of the interviews had been conducted in such a manner that they could have been accepted as evidence during subsequent court proceedings, the Court notes that none of the experts who had interviewed her could reach the conclusion that she had actually been sexually abused by her father. The State Attorney ’ s Office concluded that there had been no grounds for prosecuting C and the Court, for its part, finds no reasons to call into question that conclusion.", "126. The Court further observes that the police began interviewing witnesses the very next day, following A ’ s report of the alleged sexual abuse (see paragraph 1 4 above). They interviewed A, two of her siblings, teachers from the kindergarten the applicant attended at the relevant time and her paediatrician. Later on, they also interviewed C and members of his family (see paragraphs 23 and 29 above).", "127. The Court recognises that the Croatian authorities faced a difficult task, as they were confronted with a sensitive situation, conflicting versions of events and little direct evidence. The authorities had to deal with two irreconcilable versions of the facts and the results of three inconclusive expert opinions.", "128. After all relevant evidence had been gathered, the prosecution authorities concluded that there had been insufficient evidence for the prosecution of C. The Court, for its part, does not consider itself to be in a position to draw a conclusion on the issue, and reiterates that it cannot substitute its own findings of fact for those of the national authorities, which are better placed to assess the evidence adduced before them and the importance of witness testimony (see M.P. and Others v. Bulgaria, no. 22457/08, § 112, 15 November 2011 ).", "129. In the light of the above considerations, the Court does not consider that the case at hand discloses any culpable disregard, discernible bad faith or lack of will on the part of the police or the prosecuting authorities as regards properly holding perpetrators of serious criminal offences to account under domestic law, and in particular as regards the establishment of the true facts in the case at hand and the punishment of those responsible (ibid. , § 113). Moreover, the Court is satisfied that the domestic authorities did everything that could have reasonably been expected from them to protect the rights of the applicant, a child allegedly victim of sexual abuse, and to act in her best interest (see paragraphs 14, 16-21, 24-30 and 32-36 above).", "130. Against the above background, the Court considers that there has been no violation of the procedural aspect of Articles 3 and 8 of the Convention in the particular circumstances of the present case.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE SUPERVISION OF PARENTAL CARE", "131. The documents submitted with the application show that an expert in psychology found that the applicant had been severely socially and emotionally neglected by both parents (see paragraph 42 above). The Court therefore communicated the issue under Article 8 of the Convention whether the State authorities had complied with their positive obligation to properly address the issue of the child ’ s serious neglect by her parents. The relevant part of Article 8 is cited above ( see paragraph 84 above).", "132. The parties made no objections in that respect.", "133. The Government argued that the above complaint was premature since two sets of civil proceedings at national level, both concerning the custody of B, were still pending and because the measures applied by the Centre were still ongoing.", "134. The applicant contested those arguments.", "135. The Court notes that the expert reports concerning the applicant concluded that she had been seriously neglected and had serious behavioural problems. Counselling was recommended for both parents and the child. The Court considers that in assessing the State ’ s compliance with its positive obligations under Article 8 of the Convention, considerable importance should be attached to the efforts of social services and the child protection authorities to handle the situation and provide assistance and counselling to the applicant and her parents, A and C. It notes that the social services have been implementing various measures aimed at normalising the relationship between the applicant and her father. Psychological, psychiatric and pedagogical experts have been involved, as have social workers. Meetings have taken place with A and professional assistance has been provided to her so that she can cope better with caring for B. Contact between the applicant and her father C and members of his family have been supervised and regular reports have been submitted. The social services also held consultations with the professionals from the kindergarten and later on the school B attended (see paragraphs 49 -5 9 above).", "136. In light of all the material in its possession, even assuming that the Court has jurisdiction to examine this issue (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 121-122, 20 March 2018), it finds that this complaint does not disclose any appearance of a violation of Article 8 of the Convention. Accordingly, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "THE BACKGROUND TO THE CASE", "10. The applicants are a brother (X, “the first applicant”) and his two sisters (Y, “the second applicant”, and Z, “the third applicant”) who were born in Bulgaria. X was born in 2000, Y was born in 2002 and Z was born in 2003. They were abandoned by their mother and were initially placed in institutions for very young children and then in a residential facility for children without parental care located in a village in the Veliko Tarnovo region (“the orphanage”).", "11. In 2010 they were placed on the list of children eligible for full adoption and subsequently on the list for international adoption. In 2011 an Italian couple applied to adopt them through the intermediary of a specialised association called Amici dei Bambini (“AiBi”) based in Milan. The prospective adoptive parents both worked in a cooperative specialising in psychiatric and social assistance and were aged between 45 and 50 at the time. They travelled to Bulgaria in January 2012 and met the applicants there several times before going on to adopt them.", "12. The adoption order was issued and in June 2012 the applicants, then aged twelve, ten and nine respectively, moved to Italy.", "13. A first follow-up report on the adoption, drawn up by the association AiBi on 27 September 2012, found that the children were settling in well with the family, apart from a few incidents in which the younger girl, Z, had been aggressive to the mother, whom she had bitten. The three children had resumed their schooling and only the eldest, X, was having difficulties in school.", "THE APPLICANTS’ ALLEGATIONS OF ABUSEThe first disclosures by the applicants", "The first disclosures by the applicants", "The first disclosures by the applicants", "14. On 30 September 2012, following an argument with her brother, the third applicant complained about his behaviour towards her, accusing him of touching her sexually. Alerted by this complaint and by the disclosures made to them by the three children on that occasion, the adoptive parents contacted the association AiBi. On 2 October 2012 a meeting took place with a psychologist and an educational adviser from the association. A report was drawn up on that occasion (see paragraph 53 below as regards the subsequent sending of a copy of this document to the Bulgarian authorities). The applicants’ parents, who claimed that the report had been falsified, subsequently lodged a criminal complaint. The outcome of that complaint has not been specified, but a note written by the police reveals that the signatures on the report did not correspond to the sample signatures provided by the persons designated as the document’s authors, and that some paragraphs had been added. According to the report, the children had told their parents that they had engaged in certain sexual practices among themselves, which the parents had not witnessed. As they were extremely upset and traumatised by these disclosures, the parents considered sending away the first applicant, whom they considered to be responsible for the situation. The psychologist recommended instead that they seek psychological assistance. With some hesitation the parents agreed, although the father wanted the sessions to be held away from the city where they lived in order to protect their privacy. The three children, who initially met the educational adviser on their own, said that they had been “silly” because they had played a game “that [they] shouldn’t have played” but which all the children in the orphanage had played. They expressed fears that the first applicant would be sent back to Bulgaria.", "15. After enquiring about specialists trained to deal with this type of situation, the parents had the children examined by two psychologists specialising in child abuse cases who were based in a relational therapy centre (“the RTC”) in a town more than 100 km from their home. Meetings were held between the psychologists, the parents and the children during October and November 2012, and regular counselling sessions were then arranged for the children.", "The report of 31 October 2012 by the psychologists from the RTC", "16. An initial report concerning the applicants, entitled “Psychologists’ notes”, was drawn up by the psychologists on 31 October 2012. The report does not contain a verbatim record of the questions asked and the applicants’ statements, but rather represents a summary record which also includes the psychologists’ comments (for a more detailed account of the initial conversations with the psychologists, see the police record summarised in paragraphs 23 et seq. below). According to the report, the psychologists had conversations first with the parents and then with the children on 11 and 18 October 2012. The conversations with the applicants, described as “therapy sessions”, were conducted using the methods recommended for children who have been victims of abuse (see paragraph 22 below), and were videoed.", "17. According to the report, the parents stated that for the first three months, until the incident of 30 September, they had had no problems with the children, although they said that the younger girl, Z, used to lock the door when she was in the bathroom and had bitten her mother.", "18. The report stated that the first applicant, who talked to the psychologists next, had difficulty expressing himself in Italian and asked for his adoptive father to be present. The latter helped the child to explain what he wanted to say.", "19. According to the report, the first applicant stated that at night one of the other boys in the orphanage, D., used to molest some of the younger children; the others had to watch, sitting in a circle as though in some sort of ritual. In the passages quoted from the first applicant’s account, he described the acts in question using few words. He said, for example, that “[D.] made [the children] lick his bottom and feet and then hit [them]”, and that “he did a wee in [their] mouths and then behind”. The first applicant said that he had told the director of the orphanage, whom he called E. (as regards the confusion surrounding this name, see paragraph 32 below), about these incidents and that she had assured him that she would call the police if it happened again. He admitted having played games of a sexual nature with his sisters, even after their arrival in Italy, saying “I did a wee in Z’s mouth and licked her bottom, then Y told me to touch her where she does her wee, then she did it to me, and I put my finger in her bottom”. He said several times “It’s my fault”. He added that he had watched his sister, the second applicant, “doing sex” with a boy from the orphanage.", "20. According to the report, the psychologists spoke to the second and third applicants together. In reply to a question from one of the psychologists concerning possible problems at home, Y said: “X touched my bottom and then did it to Z, and did a wee in her mouth”.", "21. With regard to the second applicant the report stated as follows: “Y seems to have viewed it all as a game and did not attach negative connotations to the events, saying ‘I saw M. and B. doing sex and I did it with [my brother]’”. However, the report mentioned that both sisters appeared worried about their brother, who had been the victim of violence on several occasions, saying “X got hit more, I wasn’t hit so much”. The report did not say who had hit the children. It stated that the third applicant had spoken a little later in the discussion, describing another situation in which the children from the orphanage had apparently been taken to a “discotheque” where they had danced and where some men had then arrived and “played” with them in rooms on the premises. The third applicant stated that she was the only one who had put up a struggle, and said “I cried out loud and hit him”.", "22. According to the report, during the conversations the applicants used dolls given to them by the psychologists to mimic the scenes they were describing. The psychologists concluded that the children were able to distinguish between fantasy and reality and between truth and lies, and that their accounts appeared credible and free from outside influence and were coherent in terms of places and times. The report stated that, as the children considered this type of behaviour to be normal or at least acceptable, the psychologists were recommending sessions of psychotherapy, together with educational support for the parents.", "The police record of the conversations with the psychologists, based on the video-recordings", "23. The applicants’ first conversations with the psychologists were also the subject of a written record drawn up on 25 March 2013 by the police attached to the office of the R. public prosecutor for minors, on the basis of the video-recordings made by the psychologists (see paragraph 81 below). This record appears more detailed than the psychologists’ report of 31 October 2012.", "24. It transpires from this record that the applicants’ father was present at the conversation of 11 October 2012 with the first applicant and spoke occasionally.", "25. According to the record, during that conversation the first applicant said that at night one of the older boys, D., used to switch on the lights and tell the children to sit on the floor. Being unable to explain properly what had happened, the first applicant showed, using the dolls, how a girl had licked the intimate parts of a boy’s body on D.’s instructions. D. had reportedly also struck the girl in the face. He had told the other children not to watch but the first applicant had nevertheless taken a look. The boy had reportedly been naked but the other children had not. The first applicant said that he had informed the director, E. (as regards the confusion surrounding this name, see paragraph 32 below), who had apparently scolded D. and threatened to call the police if it happened again. According to the first applicant’s account, D. used to ill-treat all the other children but the educators did not notice anything. Thus, D. had reportedly forced a boy to lick his feet and had struck him. He had hit the first applicant, had “done a wee in [his] mouth” and “a wee in [his] bottom while [the first applicant] was asleep” and had “put his willy in [the first applicant’s] bottom, which [had] hurt”. D. had only done that to him and to one little girl. The first applicant said that another boy, G., had also “done a wee in [his] mouth and [his] bottom” and had hit the other children. The women from the orphanage had said that it was wrong to hit people.", "26. According to the record, the first applicant said that after their arrival in Italy he had “done a wee in [his sister Z’s] mouth and bottom” and that his other sister, Y, had told him to touch her intimate parts and he had told her to do the same to him. Lastly, he added that in Bulgaria G. had “done sex” with his sister, Y, against the latter’s wishes.", "27. The psychologists spoke next to the two sisters. It appears from the record that the father remained in the room during the conversation but did not speak. The second applicant recounted the incident of 30 September 2012. She said that she had asked her brother to “touch [her] bottom” and that he had “put his finger in [her] bottom”. He had done the same thing to their little sister and had “done a wee in [her] mouth”. The third applicant confirmed what her sister had said.", "28. According to the record, when asked by one of the psychologists whether similar things had occurred in the orphanage in Bulgaria, the second applicant said that they had, and that she had “done sex” with her brother and other children. She mentioned two boys, D. and G., but said that she had not done anything with them. Both girls said that they had been hit but that it was mostly their brother who had been hit. The second applicant added that she had seen a boy and girl, B. and M., “doing sex” and that her brother had told her that they could do it too.", "29. The record further stated that during a second conversation with the two sisters on 18 October 2012 a psychologist had asked the second applicant to share what she had said to her father about a discotheque. Y told her that she had danced with a boy, Br., in the discotheque and that her brother and sister had also danced in pairs with other children. Afterwards, there had been cake and they had gone to bed. The psychologist asked what they had done then. Y replied, using the dolls to help her, that she had “done sex” with the boy with whom she had danced, that he had been on top of her and that it had hurt. She said that she had pushed him at one point and that he had held her mouth closed. She told the psychologist that she had subsequently done the same thing with other boys and said that they had gone to the discotheque three times.", "30. The third applicant said that no one had done these things with her and that she had shouted to her sister and Br. that it was wrong. Both sisters said that the other girls in the orphanage, even the youngest ones, used to do the same things.", "31. The police record also made reference to a conversation held on 5 November 2012 with the first applicant in the presence of his father, to whom he had apparently made fresh disclosures. The psychologist began by reassuring the first applicant that it was not he who was naughty but rather the grown-ups who had taught him to do “certain things”. The first applicant then mentioned a man, N., and another called Ma. who he said had hit his sister with a stick.", "32. According to the record, the psychologist asked the child if he could remember what the “grown-ups” used to do in the orphanage. The first applicant replied that they had gone several times to a discotheque and that the grown-ups had danced with them. His sister Y had told him that N. had forced her to “do sex” in the bathroom. The first applicant said that he had told E.D., one of the welfare assistants in the orphanage (initially referred to mistakenly as the director, see paragraphs 19 and 25 above), who had spoken about it to the director. The first applicant said that N. had promised not to do these things any more but had nevertheless done them again.", "33. The applicants’ father then said that N., who he thought was one of the employees of the orphanage, had first abused the first applicant and then other children, and that other adults had also been involved. The first applicant then named those adults as K., Da., O. and P.", "34. According to the record, the first applicant said that N. had forced him to “do sex” in the bathroom, had put his penis “in [the first applicant’s] bottom” and had “done a wee in [his] mouth”. He said that K. and Da. had done the same thing to him. He added that some of the “ladies” from the orphanage “used to do sex” with the children; he said that he had done it with one of them, that he had cried, and that she had hit him. Lastly, he stated that the police had come once to the orphanage and once to the school to talk to the children. However, he had not said anything as these things had not happened again.", "The calls made by the applicants’ father to Telefono Azzurro", "35. On 6 November 2012 the applicants’ father contacted the Italian helpline for children in danger, managed by Telefono Azzurro, a public ‑ interest association. According to the detailed record of the conversation provided by the counsellor, the father stated that the applicants had told the psychologists with whom they were having sessions that they and all the children in the orphanage where they had lived in Bulgaria had been subjected to what the father described as serious sexual abuse. He said that the applicants had identified eight adults as the perpetrators of the alleged abuse: five men who had performed various tasks in the institution and three women who looked after the children. He reported that the applicants had also mentioned abuse and what he described as deviant sexual practices on the part of adults from outside the orphanage, which had allegedly taken place in a kind of discotheque during holidays organised by the orphanage. According to the father, the applicants had also said that violence and sexual abuse among the children, which involved the older children ill-treating the younger ones, had occurred systematically in the orphanage at night, when the children had been left unsupervised by the staff, who apparently slept one floor higher up.", "36. The first applicant had reportedly said that he had been abused for the first time at the age of six and had been raped by one of the workers in the orphanage, a certain N. He said that he had complained to the director, who had apparently called the police. However, he had withdrawn his accusations when questioned by the police, as N. had threatened him and struck him in the face.", "37. Again according to the record, the applicants’ father sought advice as to what action to take. The possibility was raised of informing the public prosecutor’s office in Milan, where the association AiBi, which had acted as an intermediary in the adoption process, was based, and contacting the Italian Commission for Intercountry Adoption ( Commissione per le Adozioni Internazionali – “the CAI”) in Rome, as the central authority designated under the Hague Convention on Protection of Children and Co ‑ operation in Respect of Intercountry Adoption. The applicants’ father said that he did not wish to involve the judicial authorities at the family’s place of residence, in order to preserve the children’s anonymity.", "38. The applicants’ father called the helpline again on 15 November 2012 and said that, on the advice of a lawyer and a prosecutor whom he knew, he had decided against applying to the Italian judicial authorities since, in his view, they did not have jurisdiction to deal with the case and he did not want to interfere with the family’s privacy. He said that he had reported the children’s disclosures to a representative of the association AiBi in Milan, who had told him that she had never heard of such a serious case and that she would inform the “local authorities”, without specifying which ones.", "39. The applicants’ father asked whether Telefono Azzurro could alert the media, but the counsellor drew his attention to the risk to the family’s private life and added that it was important at this stage to bring the case to the authorities’ attention.", "40. The applicants’ father called again on 20 November 2012 and said that he had tried calling a child protection helpline in Bulgaria and, following the advice given to him, had sent an email to the Bulgarian State Agency for Child Protection. However, he had received no reply (see paragraph 42 below). He said that the applicants had recounted further episodes of abuse in which children from the orphanage had allegedly been subjected to what he described as perverted sexual practices and that they had identified ten individuals – seven men and three women – as the perpetrators.", "41. During a further call to the helpline on 26 November 2012 it was agreed that Telefono Azzurro would report the case to the Milan public prosecutor’s office. The applicants’ father would contact the Italian CAI and the Bulgarian Ministry of Justice, as the central authorities responsible for intercountry adoption in the two countries.", "The reports made to the Bulgarian authorities", "42. On 16 November 2012 the applicants’ adoptive father sent an email to the Bulgarian State Agency for Child Protection (“the SACP”), asking for a telephone number to call in order to report abuse in an orphanage. He did not provide any details or even mention the name of the institution in question, but his own name featured in his email address.", "43. The same day the association Telefono Azzurro sent an email to the Nadja Centre, a Bulgarian foundation specialising in the protection of at ‑ risk children and responsible for running the national helpline, informing it that it had been contacted by an Italian national who had adopted three children in Bulgaria and who wished to lodge a complaint of serious abuse of his children. The message did not contain the applicants’ names or any details by which they could be identified. On 20 November the Nadja Centre forwarded this message to the SACP. On 23 November the latter informed the Bulgarian Ministry of Justice about the matter, stating that it could not conduct any checks as it did not have the children’s names or the name of the institution in question. The SACP requested the Ministry to open an inquiry within the scope of its powers.", "44. In a letter of 23 November 2012, which was written in Bulgarian and was scanned and sent by email to the applicants’ father on 26 November 2012, the SACP told him that it had been informed of his report of alleged abuse but that it needed additional information in order to be able to carry out checks, and in particular the name of the institution in question and the children’s Bulgarian names. The father wrote back saying that he could not understand the email and asking for it to be sent as a Word file so that he could have it translated. There was no follow-up to this correspondence by either side.", "The complaints made to the Italian authorities", "45. On 22 November 2012 the applicants’ parents sent a complaint to the CAI setting out the facts referred to in the report of the psychologists from the RTC dated 31 October 2012 and those reported to Telefono Azzurro (see paragraphs 16-22 and 35-41 above). In particular, they gave the first names of seven men, including N., and four women, who they said had been named by the applicants as the abusers. Some of these individuals, they said, had been members of the orphanage staff while others had come from outside. The parents alleged that groups of children from the orphanage had been taken “on holiday” to a village where they had visited a place they called a “discotheque”, and where they had been molested and sexually assaulted by individuals from outside the orphanage. The first applicant had allegedly been forced to watch his sisters being raped. The parents alleged that the children, left unsupervised during the night at the orphanage, had subsequently repeated with the younger children the behaviour of which they had themselves been victims.", "46. On 1 December 2012 the association Telefono Azzurro sent the Milan public prosecutor the records of the telephone conversations with the applicants’ father, a letter from him setting out the alleged facts, and the report of 31 October 2012 by the psychologists from the RTC.", "47. In his letter the applicants’ father alleged that all the children in the orphanage had been subjected to abuse by employees (the names of eleven employees – eight men and three women – were given), that during stays at a holiday camp the children had been taken to a “discotheque” where staff members and people from outside had forced them to submit to what he described as perverted sexual practices, that the first applicant had been forced to watch his sisters being raped, and that at night the older children had copied this behaviour and abused the younger children. The father specified that in the orphanage the children had been left unsupervised at night and had not been segregated, and that all the staff including the director had been aware of the abuse. He maintained that the director had been alerted to the abuse but had merely scolded the children she considered to be responsible. The director and the representative of the association AiBi in Bulgaria had allegedly warned the applicants that they must not tell their prospective adoptive parents what had happened, adding that if they did so the parents might send them back to the orphanage.", "48. On 21 December 2012 the applicants’ father also contacted the Italian police department specialised in tackling online child pornography and informed it of the applicants’ allegations, stressing that the alleged abuse had been filmed by individuals wearing balaclavas to cover their faces. He produced copies of the psychologists’ report of 31 October 2012, the complaint to the CAI, a list of the Facebook profiles of the alleged abusers and a list of the supposed victims, pointing out that some of the children had been adopted in Italy. The applicants have not informed the Court of any action taken in response to this complaint.", "49. On 8 January 2013 the association Telefono Azzurro sent the Milan public prosecutor additional information provided by the applicants’ father concerning other instances of violence apparently reported by the children. According to these accounts, the children from the orphanage had been taken to private apartments where the men and some of the women working at the orphanage, including the aforementioned N., a photographer and the photographer’s wife, had been present and where the children had allegedly been sexually abused. The adults’ faces had reportedly been covered with balaclavas and the scenes had been filmed and shown on a screen. The applicants had also stated that similar abuse had taken place in the toilets of the orphanage and had likewise been filmed. The applicants’ father also complained about the attitude of the association AiBi, which he criticised for not providing him with the support he had expected.", "The article in L’Espresso", "50. The applicants’ father also contacted an Italian investigative journalist. On 11 January 2013 the weekly magazine L’Espresso published an article under the heading “Bulgaria, in the ogres’ den” (a version of which was posted on the Internet under the title “Bulgaria, in the paedophiles’ den”), reporting on the allegations made by the applicants’ father but without naming the persons concerned or the orphanage. The article stated that dozens of children from the orphanage in which the applicants had been placed in Bulgaria had been subjected to systematic sexual abuse by staff members and outsiders, in particular at a discotheque in a holiday village. The article described an organised network, with acts of paedophilia and violence, including threats issued with weapons, being committed by masked men, and added that some scenes had been videoed. It stated that the youngest children had been the victims of one of the older children, who used to enter their dormitories at night, and that the first applicant had reported these incidents to the director of the orphanage, who apparently had done nothing to put a stop to them. The author of the article added that he had travelled to Bulgaria in December 2012 and could confirm the existence of the places and people described by the applicants, which he said matched their descriptions. He mentioned that he had met with the local police, who claimed to have been unaware of the situation. The article stressed that psychologists had considered the applicants’ accounts to be credible.", "51. As of 12 January 2013 the article in L’Espresso was the subject of several articles in the Bulgarian media.", "THE MEASURES TAKEN BY THE BULGARIAN AND ITALIAN AUTHORITIESThe initial inquiries and the first preliminary investigation in Bulgaria", "The initial inquiries and the first preliminary investigation in Bulgaria", "The initial inquiries and the first preliminary investigation in Bulgaria", "52. Following the messages sent by the applicants’ father and by the Nadja Centre (see paragraphs 42-44 above) and the publication in the Bulgarian media of the disclosures made in the article in L’Espresso, the SACP carried out checks which enabled it to identify the applicants.", "53. In parallel, the Bulgarian Ministry of Justice contacted the association AiBi, which had been named in the press article. On 14 January 2013 the association informed the Ministry of the applicants’ identity and sent it two reports, dated 27 September and 3 October 2012 (see paragraphs 13 and 14 above). The Ministry passed on that information to the SACP.", "54. On 14 January 2013 the President of the SACP ordered an inspection of the orphanage. The inspection was carried out on 14 and 15 January 2013 by the regional children’s rights department. According to the report drawn up by the inspectors on 21 January 2013, as sent to the Court (this document does not include any attachments and does not state whether written records were drawn up of the interviews and whether audio or video-recordings were made), the inspectors checked the content of the documents and the safety of the buildings. They interviewed the mayor of the municipality, who was responsible for the running of the orphanage, the director, the general practitioner, the welfare assistant, the psychologist, the nurse and other staff members who were on duty at the time of the inspection. According to their report, the inspectors spoke to the children in groups of four or five, in the context of informal conversations which focused progressively on questions concerning possible acts of violence or unwanted physical contact. The older children who could read and write were asked to reply to an anonymous questionnaire which – again according to the report – they could complete without any staff member present. The questionnaire, devised by the SACP as a tool for assisting inquiries concerning children in residential care, consisted of seven mainly multiple-choice questions in which the children were asked whether they had been subjected to insults or violence or if anyone had touched their bodies “in a way [they] didn’t like” and if they knew who to turn to if there was a problem.", "55. According to the same report, there were fifty-two children living in the orphanage at the time of the inspection: twenty-four girls and twenty ‑ eight boys. Twenty-one of the children were aged between two and seven and thirty-one were aged between eight and thirteen. Thirty-four people worked in the institution, including three men (a caretaker, a heating technician and a driver) whose jobs did not involve contact with the children and who did not have access to their dormitories. The report stated that, according to the information gathered, the children in the orphanage were never left unsupervised, that they were accompanied by a female educator on their way to school, that access by outside visitors was subject to checks and that there were security cameras around the outside of the premises, the footage from which was viewed on a regular basis. The report further specified that the children were divided among seven dormitories by age and, in the case of the older children, by gender, and that the layout of the dormitories was such that they could not move from one dormitory to another without being seen by the staff members on duty. No reference to violence or sexual abuse was made in the replies to the questionnaire or the conversations, which merely mentioned arguments and instances of being hit by other children, mostly at school.", "56. The report also stated that, according to the psychologist who prepared a quarterly review concerning the children on the register of children eligible for adoption and who had monitored the applicants among others, neither the applicants nor the other children had ever mentioned ill ‑ treatment or sexual abuse and had shown no signs of such treatment. It also emerged from the information gathered that the children occasionally displayed aggressive behaviour towards each other, which was regarded as normal at that age. In the view of the staff members, the children had no difficulty in confiding in others. Some of the staff cited the example of one girl, M., who had apparently told the other children stories about sexual abuse in her family. The other children had immediately reported this to the staff, prompting an inquiry. According to the director, the second applicant had even told others about these events as if they had happened to her. The director conjectured that this episode could have been the source of the applicants’ allegations.", "57. On the basis of this report the SACP concluded that there was no evidence that children from the orphanage had been subjected to the treatment reported in L’Espresso. Nevertheless, in view of the seriousness of the allegations, the SACP forwarded the file to the Veliko Tarnovo district and regional prosecutors’ offices. Following the inspection the SACP sent a team of psychologists to the orphanage from 18 to 24 January 2013. The team likewise found no cause for alarm.", "58. The article in the magazine L’Espresso aroused interest among the Bulgarian media, which sought clarification from the SACP and from the management of the orphanage. An article published on 16 January 2013 on the news website Vesti, entitled “The allegations of sexual abuse in an orphanage are fabricated” reported on the statements made by the President of the SACP on television in the following terms:", "“The reports in the Italian press concerning alleged violence against children in a Bulgarian orphanage are slanderous and fabricated. ...", "The magazine did not state where the institution is located, prompting the SACP to conduct its own inquiry.", "According to the SACP, the institution is the residential facility for children without parental care located in the village of ...", "The SACP conducted an inspection in that facility lasting less than two days. Nevertheless, it is now satisfied that these accusations are unfounded. ...", "The President of the SACP considers it likely that the accusations were fabricated not by the children themselves but by their new parents in Italy.", "[He] stated that, despite the short duration of the inspection carried out, the findings were categorical. ...", "... the orphanage stressed that the Italian family’s intention ... had been to adopt two girls, and that they had made a concession in taking the eleven-year-old brother as well. The new ‘parents’ had then wanted to send the boy back. For that reason, according to [the President of the SACP], the father had lied, saying that the boy and his sisters had been playing ‘doctor’.", "[He stated that] ‘this is most likely a case of manipulation on the part of an adoptive parent, perhaps resulting from his lack of preparedness’ for dealing with three children between the ages of eight and eleven.", "‘I visited the children myself yesterday and I can tell you that I’m greatly reassured’ he said.", "He added that it was out of the question that the older children could have abused the younger ones, given the young age of all the children in the orphanage. Speaking on BTV, he said: ‘There are children’s homes ... where sexual and physical violence goes on, but that is not the case here’.”", "59. On 29 January 2013 the news website Darik News published an article, accompanied by a photograph, stating that two members of the Bulgarian parliament had visited the orphanage with the mayor and the chair of the local council and had been received by the director. The article referred to the report in the Italian press according to which three children living in the orphanage had suffered sexual abuse, and reported on the “indignation” of the MPs, according to whom the Italian press had been “spreading fake news”. One of the MPs was quoted as saying to the educators: “We all know that this press report is slander”. The article stated that at the end of the visit the villagers had also been invited into the orphanage and had “expressed outrage at the slanderous remarks”.", "60. On 28 January 2013 the Veliko Tarnovo district prosecutor’s office opened a preliminary investigation file ( преписка ) concerning the allegations reported by the SACP, under the number 222/2013. Taking the view that there was no evidence in the SACP’s report to indicate that a criminal offence had been committed, the prosecutor’s office asked the SACP whether it had any other evidence. The SACP confirmed that the inspection that had been carried out did not suggest that any abuse had been committed. In an order of 18 November 2013 the public prosecutor’s office decided that there were no grounds for instituting criminal proceedings and discontinued the case on the sole basis of the SACP’s report, without any other investigative steps being taken. The order was worded as follows:", "“The file was opened in connection with the information sent by the SACP, which carried out a check in response to a report ... alleging that three children who were subsequently adopted in Italy in 2012 had been sexually abused. The inspection did not lead to any evidence being gathered that might have confirmed the alleged abuse or the commission of other offences.", "In view of the foregoing, I consider that there is insufficient evidence of the commission of an offence, for the purposes of the Code of Criminal Procedure, such as to enable criminal proceedings to be instituted. The case should therefore be closed.", "Consequently ... :", "I have decided not to commence criminal proceedings and to close case no. 222/2013 ...”", "The visit to Bulgaria by representatives of AiBi", "61. In parallel with the events described above, representatives of the association AiBi paid a visit to Bulgaria from 23 to 26 January 2013. It emerges from the report written following the visit that they met the Italian ambassador, the Bulgarian Deputy Minister of Justice and a representative of the SACP. The last two complained that they had received insufficient information from Italy and said that they had received only the – unsubstantiated – reports of abuse made by the applicants’ father, who had not responded to their request for information, and the article from L’Espresso. They added that an inspection had nevertheless been carried out when the orphanage in question had been identified; the SACP’s representative presented the inspection report, according to which no evidence to corroborate the applicants’ claims had come to light (see paragraph 54 above). The representatives of AiBi also visited the orphanage, where they met the mayor (who was the administrative authority responsible for the running of the orphanage) and were shown around the institution by the director. The report noted that the people whom the representatives met had expressed concern at the accusations, the criticisms of the Bulgarian institutions and the lack of action on the part of the Italian authorities. The report was sharply critical of the way in which the adoptive parents had handled the situation.", "The exchanges between the Bulgarian and Italian authorities", "62. In the course of correspondence between the Italian CAI and the Bulgarian Ministry of Justice, the two authorities exchanged the information in their possession. In a letter of 23 January 2013 the CAI formally requested the Bulgarian authorities to take appropriate steps to protect the children living in the orphanage. The CAI’s representative wrote as follows:", "“... it appears that the following events took place in [the orphanage], involving large numbers of individuals, both staff members of the institution and people from outside, whose names and roles have been provided by the children.", "According to the [applicants’] accounts, the ‘most deserving’ children were taken periodically to the neighbouring village of L. They were taken to a discotheque where, in the beginning, they danced and enjoyed themselves. Then, after the cake, they were taken to bedrooms where some men who were already present ‘played’ with them.", "These children were subjected to violence and forced to witness violence against others.", "The children who were the victims of these repeated assaults later replicated them with the smallest children when they were left alone at night.", "In view of the above, the [CAI] requests the central authority [the Bulgarian Ministry of Justice] to take all the necessary steps to protect the children in the orphanage.”", "For her part, the Bulgarian Deputy Minister of Justice expressed concern for the applicants’ welfare within their adoptive family, in particular regarding the risk that the parents might abandon the children. The representative of the CAI replied that the adoptive parents had raised this possibility in a moment of panic, in view of the seriousness of the facts that had been disclosed (see paragraph 14 above), but that they were now wholly committed to the children.", "63. In view of the concerns expressed by the Bulgarian Ministry of Justice, the CAI applied in early February 2013 to the R. Youth Court, which had territorial jurisdiction to follow up the adoption process and take any measures required to protect the applicants. A few days earlier the association AiBi had also reported the events to the Youth Court.", "64. On 21 January 2013 the applicants’ father complained to the CAI about the fact that the Bulgarian press had disclosed the applicants’ names, in particular in an interview given by the director of the orphanage. The complaint was forwarded to the Bulgarian Ministry of Foreign Affairs. In a note verbale dated 24 January 2013 the latter informed its Italian counterpart that the SACP had taken action vis-à-vis the media outlets concerned. In a further note verbale of 27 September 2013 the Bulgarian ministry stated that the Bulgarian personal data protection commission had taken the view that the situation in question had not resulted in misuse of personal data, in so far as the use of the data had been justified in this instance by the public interest in the case and the aims pursued by journalistic activity.", "The second preliminary investigation in Bulgaria", "65. On 15 January 2013 the Milan public prosecutor’s office, on an application from the association Telefono Azzurro (see paragraph 46 above), sent a request to the Bulgarian embassy in Rome containing the following passages:", "“... I am sending you copies of the documents in my possession concerning allegations of serious offences against minors ...", "As the Italian judicial authorities do not have jurisdiction in the present case since the alleged acts were committed abroad, by foreign nationals, I would ask you to contact the relevant local authorities with a view to assessing whether the allegations in question are well founded.”", "The prosecutor attached the record of the calls made by the applicants’ father to Telefono Azzurro, a complaint from the father dated 28 November 2012 setting out the applicants’ allegations, and the report of the psychologists from the RTC dated 31 October 2012 (see paragraphs 46 ‑ 49 above).", "66. The documents in question were translated and sent to the SACP, which forwarded them to the Veliko Tarnovo regional prosecutor’s office. However the latter, which, following the article in L’Espresso, had opened an investigation into the general situation with regard to orphanages in the region, took the view that the documents implicated named individuals and that it was therefore for the district prosecutor’s office to decide on possible proceedings. The file was sent to the Veliko Tarnovo district prosecutor’s office, which on 22 February 2013 opened a preliminary investigation under the number 473/2013, while the first investigation (no. 222/2013) was still pending.", "67. A team of representatives from the police, the local authorities and the regional healthcare, social welfare and child protection services conducted inquiries at the orphanage on 25 and 26 February 2013.", "68. According to the report drawn up by the police on 6 March 2013, the team consulted the documents available in the orphanage, including the children’s medical records, and spoke to members of staff (the director, the psychologist, two educators, a childcare assistant, the driver, the caretaker and the heating technician), to some individuals who occasionally worked in the institution (a photographer named D. and an electrician the diminutive of whose forename began with N.), and to four children aged between eleven and thirteen (three boys, B., G. and A., and a girl, Bo.) whom the applicants had mentioned in their accounts. The police report described the running of the institution and the activities and care provided to the fifty ‑ three children living there at the time. It stated that the regular medical check-ups carried out by the general practitioner from outside the orphanage had not revealed any signs of physical or sexual assault on the children. It added that a complaints box was available to the children, as well as a telephone which gave the number of the national helpline for children in danger, and that no incidents corresponding to the applicants’ allegations had been reported by those means.", "69. The report noted that only three staff members were men – the driver Da., the caretaker K. and the heating technician I. – and that they were not allowed to enter the dormitories unless accompanied by the director of the orphanage or by a female member of staff.", "70. The report also stated that the municipal child protection service inspected the orphanage regularly and that a police officer visited every week. It stated that security measures were in place, particularly regarding entry by outside visitors, and that no instances of sexual abuse of children had been reported, either during the interviews with staff members in the course of the investigation or in the preceding years.", "71. The report also referred to the investigations conducted by the public prosecutor’s office and the police into incidents occurring at the orphanage since 2002, and in particular one case of ill-treatment by an employee who had subsequently been dismissed, and one case in which some children had accidentally swallowed medication. It stated that no reports of sexual abuse had been recorded.", "72. In a letter of 8 May 2013 the district prosecutor’s office ordered the police to continue the preliminary investigation in order to establish the identity of the persons referred to and the truth or otherwise of the allegations made in the documents sent by the Italian authorities. According to a second police report, dated 5 June 2013, the police had conducted interviews in the police station on that occasion with the director of the orphanage, the psychologist, the welfare assistant, the photographer D., and the electrician N. The only child referred to by the applicants who was still living in the orphanage, B., had also been questioned by a police officer in the presence of the orphanage’s psychologist. The report found that the evidence gathered did not corroborate the applicants’ allegations, and noted in particular that, contrary to the applicants’ assertions, the director of the orphanage was not called E. (as regards the confusion surrounding this name, see paragraphs 19 and 32 above) and that the applicants had not reported any instances of sexual abuse to her or to the welfare assistant E. The report added that the children had not been taken to any “discotheque”. The only occasion on which the children had an opportunity to dance was at a party during the annual excursion organised by an association in the village of L. According to the report, the children were accompanied to that party by the female educators from the orphanage and the only other person present was a disc jockey invited for the evening. The report also mentioned that the children had spoken in positive terms about their trip to L. The psychologist had stated that during the third applicant’s time at the orphanage the child had not displayed the symptoms referred to by the adoptive parents (who claimed that she used to cry out while she was in the bath and had bitten people). The psychologist had added that, while the third applicant had been psychologically stable, the first and second applicants had been more confrontational and had a tendency to manipulate other people, including adults. She had also noted that, at the time of the initial meetings with the prospective adoptive parents, the first applicant had been annoyed because the parents had apparently paid more attention to his sisters. According to the report, the witness statements obtained also indicated that D., the boy whom the applicants had identified as the perpetrator of the alleged abuse and ill-treatment (see paragraphs 19 and 25 above), had been adopted by Italian parents as far back as the late summer of 2011, at the same time as his sister, when he was twelve years old. As to M., the girl mentioned by the applicants (see paragraph 28 above), the report of a gynaecological examination carried out in January 2012 had found that her hymen was intact.", "73. Another report, drawn up on 4 March 2013 by the regional child protection services in connection with the inspection of the orphanage, essentially reiterated the information contained in the report following the SACP’s inspection in January 2013 (see paragraph 54 above) and noted that the relevant regulations were largely complied with and that there were no grounds to suspect sexual abuse. The report made several recommendations including improvements to the programme of activities offered to the children.", "74. On conclusion of the preliminary investigation the district prosecutor’s office, in an order of 28 June 2013, decided not to institute criminal proceedings and discontinued the case. According to the order, the evidence gathered during the investigation had not confirmed the allegations made by the applicants’ parents. The male staff members and the electrician N., who had worked only occasionally in the orphanage, had not had access to the children without a female educator being present; the children were always accompanied on excursions, in particular during the annual trip to L., and had not come into contact with any men without the female staff being present; the director was not called E.; the boy B. mentioned by the applicants denied having been the perpetrator or the victim of sexual touching, and the young girl M. had undergone a gynaecological examination in January 2012 which showed that her hymen was intact; lastly, D. and his sister had been adopted in Italy as early as the summer of 2011. The public prosecutor concluded that the evidence gathered did not lead to the conclusion that a criminal offence had been committed.", "The proceedings before the Youth Court in Italy", "75. Several steps were taken in the course of the proceedings opened by the public prosecutor’s office at the R. Youth Court on an application by the CAI and the association AiBi (see paragraph 63 above). Under Italian law, civil proceedings of this kind in the Youth Court, with the participation of a public prosecutor for minors, are designed to follow up adoptions. In the present case the proceedings were aimed at monitoring the applicants’ integration into the family in view of the events that had taken place and the risk that the adoption might be called into question.", "76. On 22 February 2013 the journalist from L’Espresso gave a statement to a public prosecutor for minors. He explained that he had been contacted by the applicants’ father, who had reported what the applicants had told him; the journalist added that he had travelled to Bulgaria from 9 to 16 December 2012 to investigate. He confirmed the existence of the places and people described by the children. In particular, he said that he had discovered the whereabouts of the photographer D.’s studio and had made contact with him on Facebook using a false name. He had noticed that many of D.’s Facebook contacts were adolescents.", "77. The journalist said that he had made contact through a Bulgarian journalist with a police officer named K. to whom he had passed on the information provided by the applicants’ father. However, the police officer had later told him in confidence that his supervisors had forbidden him to take up the case.", "78. The documents in the file show that the man whom the journalist described as a police officer told him during an exchange of emails that he thought that the account given by the applicants’ father pointed to serious offences which in his view warranted the opening of a criminal investigation. However, he considered that the account was insufficiently detailed and asked to be sent a copy of the Italian psychologists’ report. The journalist subsequently provided him with a more detailed account and with the psychologists’ report. There is no information in the file concerning a possible follow-up to this exchange by either party.", "79. On 25 February 2013 the applicants’ father was interviewed by the police attached to the R. Youth Court. He stated that the applicants had initially told him that the older boys D. and G. had abused the younger children in the orphanage. Some time later the applicants had told him about abuse allegedly committed by a workman, N., who, they said, had raped children from the orphanage over a number of years and had forced them to engage in acts which the father described as abhorrent. The applicants had subsequently related incidents which they claimed had occurred in the place where the children were taken on holiday, where they had allegedly been assaulted and abused by members of staff and by individuals from outside the institution. The applicants had reportedly told their father that the children had been tied in handcuffs, that the adults had worn masks and that the scenes had been filmed by a photographer, D., who had also participated in the abuse. The first applicant had apparently added that he had been threatened with a gun.", "80. The applicants’ father also stated that he had tried to trace the individuals described by the applicants on social media, and that the applicants had recognised several of them and had identified them as the perpetrators of the acts in question. The day after the interview, the applicants’ father sent the police a list of names, some of them using the diminutive form, of the persons allegedly involved in the abuse, together with the Facebook profiles that he had managed to identify (see paragraph 48 above). He stated that the children had informed S., the director, about the alleged abuse and the involvement of the orphanage’s employees and that she had promised to take action, but that nothing had been done.", "81. At the request of the public prosecutor for minors, the police viewed the video-recordings made by the applicants’ psychologists and drew up a record of the conversations that had taken place between the applicants and the psychologists on 11 and 18 October and 5 November 2012 (see paragraphs 23-34 above).", "82. On 8 April 2013 the first and second applicants were interviewed by the public prosecutor for minors, in the presence of a psychologist and a female police officer. According to the written record the interviews were filmed and recorded on DVD.", "83. It transpires from the full transcript of these interviews, produced before the Court, that both the children, and in particular the first applicant, still had quite a limited command of Italian and that the persons interviewing them had to explain the meaning of certain words such as “undress” and “breasts” which featured in their questions. The applicants’ replies were brief and often consisted of a simple “yes” or “no” answer, or of the repetition of a suggestion made in the question.", "84. The two children were first asked how they were feeling and to describe their life in the orphanage. Neither of them mentioned the allegations of sexual abuse of their own accord, but spoke about them when the prosecutor asked them questions about inappropriate behaviour on their part or matters they had mentioned to the psychologists.", "85. The first applicant was initially somewhat reluctant to talk about Bulgaria and about the incidents in the orphanage. When questioned directly on the subject he said that one boy at the orphanage had licked a young girl’s bottom and that another boy, D., had hit the other children. He told the interviewers that adults had come into the room at night, that N. in particular had touched his bottom and “done a wee in [his] mouth” and in other children’s mouths, and that some children had been tied up, undressed and hit. He said that his sisters had been undressed but that he had not. Neither the women who looked after the children nor the director had heard anything because they had been asleep, and the children had not said anything the next day because the men had forbidden them to do so.", "86. It is clear from the transcripts that the first applicant was annoyed with the people questioning him. His account also contained a number of contradictions with regard to whether certain events had actually taken place and whether he had witnessed certain acts or had been told about them by other children.", "87. Despite being asked several questions on the subject, the first applicant was unable to explain what he meant by the expression “doing sex”, and finally agreed with the suggestions put to him by the interviewers. He said that “those things” had happened only in the orphanage and not during the holiday outings. He also stated several times that he had been hit in the orphanage.", "88. The second applicant, who appeared to have a better grasp of Italian than her brother, spoke about her daily life in the orphanage in greater detail. When questioned by the prosecutor about the incident occurring in Italy, she said that she and her brother and sister had played a game which they should not have played and that in Bulgaria her brother had “done a wee” in the mouth of their little sister, Z. She said that the children had once seen a man doing that with a lady on the television in the orphanage. She added that both the people concerned had been dressed and that the lady had cried out. She said that she had not spoken to staff members about these events.", "89. When questioned by the prosecutor about what she had said to the psychologists from the RTC, the second applicant told her that a boy from the orphanage had put his finger in a young girl’s bottom and that her brother had done the same thing to her and to her sister, once in Bulgaria and once after their arrival in Italy. When asked whether she had been touched by other children she recounted several incidents, explaining that one boy from the orphanage had “played at doing sex” by lying on top of her while they were both dressed. At school, two girls had asked her to dance in her underpants, and she had also seen two older children kissing in school. She added that a certain N. had “kissed [other young girls] on the mouth and touched [them]” at night in the orphanage. However, her statements as to whether N. was an older child or an adult, and whether or not he lived in the orphanage, contradicted each other.", "90. In reply to several questions on the subject, she stated that she had never seen any adult naked, that no adult had touched her, that she had never been photographed and that none of what she described had taken place on the holiday outings.", "91. During the interviews the prosecutor showed several photographs to the two applicants, who identified, among other things, the holiday house in L. and the photographer D.", "92. On 24 June 2013 the prosecutor sent the evidence thus obtained to the Youth Court. She noted in her conclusions that it was clear from the disclosures made by the applicants to their parents and their psychologists and repeated, if only in part, during their interviews, that the children had been the victims of repeated sexual abuse and ill-treatment. The prosecutor considered that they should not be questioned further at this stage, especially in view of the possibility that the Bulgarian authorities might wish to interview them. She proposed that the court should order the monitoring of the applicants’ situation within the family and of the support they were receiving from the psychologists, and should assess the need to provide assistance to the parents.", "93. On 9 July 2013 the Youth Court appointed an expert in paediatric neuropsychiatry, who was the head of child and adolescent neuropsychiatry of the regional health authority of a neighbouring region, to assess “[the applicants’] psychological and physical state, the possible existence of symptoms suggestive of sexual abuse (ill-treatment) during their time in residential care, and the dynamic between [them and their parents]”. The court instructed the expert to “examine [the procedural acts and documents available at the RTC] with a possible view to interviewing the children, subject to the findings of that preliminary examination and to authorisation by the court”. After examining the documents and the recordings of the interviews with the applicants and their parents, and on the basis of appropriate scientific evaluation methods (Criteria-based Content Analysis, CBCA), the expert made the following observations:", "“X and Y’s accounts of the acts of which they claim to have been the victims during their time at the institution in Bulgaria appear to satisfy the criteria established by the scientific literature in order to be considered clinically credible. The relationship of the aforementioned children with their adoptive parents appears to be fundamentally sound, and the parents have succeeded in coping with a considerable emotional burden, including on a personal level.”", "94. In a decision of 13 May 2014 the Youth Court observed that the evidence gathered, and in particular the expert’s assessment, showed that the applicants had been subjected to repeated sexual abuse and ill-treatment in the orphanage in Bulgaria. The court noted that according to the parents’ statements, the applicants had revealed that they had engaged in sexual acts among themselves, that this had been common among the children in the orphanage, and that the children had also been the victims of abuse on the part of several employees who had forced them to engage in sexual acts. The court observed that the abuse had been committed in the orphanage and at a place where the children were taken on holiday, that the children had been threatened, including with a weapon, that the acts in question had been filmed by a photographer, D., and that the children had identified some of the individuals they had mentioned, and in particular the photographer, on the photographs presented by the journalist from L’Espresso. The court stressed that the applicants had reiterated these allegations when interviewed by the prosecutor, albeit in less detail and with some hesitation.", "95. The Youth Court, basing its findings in particular on a recent report of the psychologists from the RTC dated 21 November 2013, considered that the adoptive parents had demonstrated the patience and care that were required and that there was no reason to question their ability to take care of and raise the children. However, it noted that the parents’ initial reaction had been inappropriate in so far as they should have applied to the Youth Court or another competent authority immediately instead of having recourse to a journalist. It also criticised the conduct of the association AiBi, which had delayed in contacting the competent authorities after being apprised of the situation and after noting a problem of sexual precocity with the applicants and the other children in the orphanage, and which had hastened to draw up a report criticising the parents.", "96. In these circumstances the Youth Court held that there was no need to question the applicants again, to order protective measures concerning them or to review their psychological counselling; it therefore terminated the procedure for following up the adoption. The Youth Court’s decision was sent to the Milan public prosecutor’s office in connection with the pending criminal case concerning the same facts.", "The third preliminary investigation in Bulgaria and the subsequent decisions of the prosecuting authorities", "97. In late January 2014 the Italian Ministry of Justice sent an official letter to the Bulgarian authorities, forwarding the evidence gathered by the public prosecutor’s office at the R. Youth Court (see paragraphs 75 et seq. above) and asking them to open an investigation into the allegations. The documents forwarded comprised the statement given by the applicants’ father to the police, his letter containing the list of names and Facebook profiles of the persons he believed to be implicated (see paragraphs 48 and 80 above), the police written record based on the recordings of the applicants’ conversations with their psychologists (see paragraphs 23 ‑ 34 above), and the transcripts of the first and second applicants’ interviews with the public prosecutor for minors (see paragraphs 79-91 above).", "98. On 14 March 2014 the public prosecutor’s office at the Bulgarian Supreme Court of Cassation sent translations of the Italian documents to the Veliko Tarnovo regional prosecutor’s office, which forwarded them to the district prosecutor’s office. On 4 April 2014 the district prosecutor’s office opened a preliminary investigation under the number 910/14. On 15 April 2014 the district prosecutor observed that three investigations had been opened concerning the same facts and forwarded the files to the regional prosecutor’s office, proposing that they be joined and that the orders already made in the case be set aside.", "99. In an order of 5 June 2014 the Veliko Tarnovo regional prosecutor’s office ordered the joinder of the three investigations and set aside the order of 28 June 2013 issued in case no. 473/13 (see paragraph 74 above), on the grounds that it had been made while a first investigation was still pending. The discontinuance order of 18 November 2013 in case no. 222/13 (see paragraph 60 above) thus remained in force. No fresh investigative steps were taken on the basis of the new documents received from the Italian authorities in January 2014.", "100. In December 2014 and again in January 2015 a representative of the Italian embassy in Sofia made an official enquiry regarding the progress of the investigation. On 23 January 2015 the Bulgarian authorities informed the Italian embassy that the criminal investigation had been closed by means of the order of 18 November 2013 (see paragraph 60 above). A copy of the order was sent to the embassy on 28 January 2015.", "101. In the meantime, on 19 January 2015, the Italian Ministry of Justice requested its Bulgarian counterpart to inform it of the outcome of the criminal case. It received the information in a letter of 11 March 2015.", "102. On 11 December 2015 the applicants’ father requested the Italian Ministry of Justice to grant him access to all the material in the file. On 1 February 2016, in response to that request, the Italian authorities sent the applicants’ parents the decisions given by the Bulgarian prosecuting authorities, translated into Italian, including the order of the Veliko Tarnovo district prosecutor’s office of 18 November 2013. The order stated that it was open to appeal to the regional prosecutor’s office.", "103. On 7 June 2016 the Italian Ministry of Justice sent additional documents concerning the case to its Bulgarian counterpart. The material included a letter from the applicants’ father to the Italian Justice Ministry dated 2 May 2016 in which he challenged the investigation carried out in Bulgaria and cast doubt on the independence of the Veliko Tarnovo district prosecutor’s office; a list of the alleged perpetrators and of the children supposedly present in the orphanage at the time of the events; and an article from a local daily newspaper, Borba, dated 4 January 2013, in which a young man who claimed to have lived in several care homes during his childhood and adolescence complained of violence and precocious sexual activity in those institutions. In his letter the applicants’ father referred to the Youth Court decision of 13 May 2014 (see paragraphs 94-96 above) and requested that it be sent to the Bulgarian authorities. However, the decision does not appear to have actually been sent with the correspondence from the Italian ministry.", "104. These documents were forwarded to the Veliko Tarnovo district prosecutor’s office on 1 August 2016. On 2 August 2016 the prosecutor in charge withdrew from the case in response to the criticism by the applicants’ father of the way in which he was handling the case. A different prosecutor was appointed. The latter forwarded the file to the regional prosecutor’s office, taking the view that the letter from the applicants’ father should be treated as an appeal against the order of the district prosecutor’s office of 18 November 2013.", "105. In an order of 30 September 2016 the regional prosecutor upheld the discontinuance order of 18 November 2013. He noted that the order had been based on an inspection carried out by the SACP which had not identified any shortcomings in the running of the orphanage or any infringement of the children’s rights, and that the district prosecutor had concluded accordingly that the claims made in the article in the Italian weekly magazine had not been corroborated.", "106. The regional prosecutor went on to make the following observations. In the course of the second investigation, opened following the report by the association Telefono Azzurro, the police and the various relevant services had instituted inquiries. In that context, evidence had been taken from various members of the orphanage staff, namely the director, the psychologist, two educators, the driver, the heating technician, the caretaker and a childcare assistant, and from four children. Some outsiders who had worked in the orphanage – a photographer and an electrician – had also given evidence on that occasion. The police investigators had then interviewed the director, the psychologist, the welfare assistant and one child, and also the electrician, the photographer and a member of the municipality’s IT department, all of whom had carried out work in the orphanage. The interviews had not produced any evidence that the children in the orphanage had been the victims of psychological, physical or sexual abuse. It emerged from the inquiries that the children had been supervised during the night and could not have any contact with individuals from outside without being accompanied by a childcare assistant or an educator from the centre. It further appeared that once a year, in summer, the children had gone to a holiday camp, accompanied by educators from the orphanage. A party had usually been organised at the end of their stay, in which reportedly the only outside person involved was a disc jockey.", "107. The public prosecutor noted that only three of the orphanage’s employees had been men and that they had not had access to the rooms set aside for the children. The outside photographer came to the orphanage only to take photographs or make videos for adoption files or for parties or ceremonies. There had been no employee with the initial N., the only person of that name had been an electrician who came to the orphanage occasionally to repair kitchen equipment, and there had never been a director called E. (as regards the confusion surrounding this name, see paragraphs 19 and 32 above).", "108. Consequently, in the prosecutor’s view, there was nothing in the evidence gathered to indicate that any offences had been committed against the three applicants.", "109. The prosecutor also observed that the new documents sent by the Italian authorities confirmed the information contained in the earlier documents and did not add anything to it. He therefore concluded that there were no grounds for a criminal prosecution, and upheld the discontinuance order of 18 November 2013.", "110. On 17 November 2016 that decision was endorsed by the Veliko Tarnovo appellate prosecutor’s office in the context of a review conducted of its own motion.", "111. On 27 January 2017, after the respondent Government had been given notice of the present application, the public prosecutor’s office at the Bulgarian Supreme Court of Cassation ordered an official review of the order of the appellate prosecutor’s office. The review, conducted by a prosecutor at the Supreme Court of Cassation, concluded that the investigation appeared to have been thorough and had not revealed that the applicants had been ill-treated at the orphanage, with the result that there were no grounds for setting aside the order of the appellate prosecutor’s office. The prosecutor found as follows:", "“Thorough checks were carried out in case no. 222/2013 of the Veliko Tarnovo district prosecutor’s office, during which no evidence was found of physical or sexual abuse of the children from [the orphanage].", "Having consulted the documents sent by the Milan public prosecutor’s office to the Bulgarian embassy containing the expert opinions prepared by a psychologist, a psychotherapist and a clinical consultant at the request of the [applicants’ parents], and the report submitted to the Milan public prosecutor’s office by the association Telefono Azzurro specialising in the prevention of child abuse, which was sent to the international department of the public prosecutor’s office at the Supreme Court of Cassation by the Ministry of Justice; having likewise consulted the documents concerning the evidence taken from the children X and Y containing the transcripts of the interviews with the public prosecutor ..., the female police officer ... and the psychologist ..., I have concluded that those interviews provide no grounds for finding that the children were subjected to abuse by adults during their time at [the orphanage], but that the interviews indicate that the children were most likely witnesses to acts of sexual touching among children living in the orphanage, which X then copied in Italy vis-à vis his sisters. The children themselves give divergent accounts of the circumstances in which they allegedly witnessed acts of a sexual nature, namely whether they saw them on television or saw them being carried out by another older child.", "X’s first account to his adoptive parents concerning the violence to which he claimed to have been subjected in Bulgaria was aimed primarily at focusing their attention on events that had not actually occurred and justifying acts he had committed towards his sisters and of which the parents had expressed strong disapproval.", "Some aspects of the initial accounts [made by the applicants] to their parents and the psychologists were not confirmed during the detailed questioning by the public prosecutor at the Italian Youth Court.", "As the three children were fearful of being rejected by their adoptive parents, who disapproved strongly of their immoral behaviour within their new family – within which the children receive a great deal of love and attention – they sought to inspire pity and play down their own actions by relating incidents that had not actually occurred in which they were the victims of crimes.", "In view of the foregoing I consider that the order of the Veliko Tarnovo appellate prosecutor’s office was justified and in accordance with the law.”", "OTHER RELEVANT INFORMATION", "112. In addition to the inspections conducted in the orphanage following the applicants’ allegations, the regional child protection services carried out a further check in June 2013 following a report by the association the Bulgarian Helsinki Committee casting doubt on the quality of the institution’s educational activities and alleging that children older than the statutory maximum age were living in the orphanage and that the heating technician, in breach of the rules, entered rooms intended only for the children and had had a relationship with one of the female employees. The report of the child protection services noted, in particular, that the age limit was complied with and that the heating technician did not enter the rooms occupied by the children unless accompanied by a staff member. However, according to the report, the director of the orphanage had observed that one employee had made inappropriate remarks about intimate adult relations in front of the children and had been reprimanded by the director. It also transpired from the inspection carried out by social services that the nurse had not organised information sessions on health topics as she was required to do, but that the educators had given classes on sex education and medical issues.", "113. In 2013 the Veliko Tarnovo district prosecutor’s office also opened a criminal investigation under the number 407/2013, after the regional social welfare directorate reported complaints by several parents whose children, M., S. and Y., had been placed temporarily in the orphanage between 2011 and 2012 and had stated that one of the childcare assistants had hit them with a stick. The public prosecutor’s office ordered the police and the child protection services responsible for the area to carry out checks. Following a decision by the mayor, the municipal social services carried out a further check concerning the same complaints. In an order of 19 June 2013 the district prosecutor’s office discontinued the case, noting that there was insufficient evidence that the children had been ill-treated by members of staff. With regard to M., who was one of the children mentioned in the applicants’ accounts (see paragraphs 21, 28, 56 and 72 in fine above), the order also referred to another episode in which the girl in question, on returning to the orphanage after staying with her parents in January 2012, had complained of sexual abuse within her family and had told the other children in the orphanage about it. The director had mentioned the episode in the course of the investigations in the present case (see paragraph 56 in fine above) and in her statements to the press, as a possible explanation for the applicants’ accounts of sexual abuse.", "114. The orphanage was closed down in July 2015 as part of a policy of deinstitutionalisation aimed at placing as many children as possible with families." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAW AND PRACTICEThe Criminal Code", "The Criminal Code", "The Criminal Code", "115. The relevant provisions of the Criminal Code as in force at the material time read as follows:", "Article 31", "“(1) Any person over the age of eighteen who commits an offence while he or she is capable of discernment shall be criminally liable.", "(2) Persons between the ages of fourteen and eighteen shall be criminally liable if, at the time of the offence, they were capable of understanding the nature and consequences of their actions and of controlling them.”", "Article 149", "“(1) Any person who engages with a minor under the age of fourteen in acts aimed at arousing or satisfying a sexual impulse without intercourse shall be sentenced to a term of imprisonment of one to six years for sexual abuse ( блудство ).", "(2) Any person who commits sexual abuse using force or threats, taking advantage of the victim’s vulnerability or placing the victim in a vulnerable situation, or abusing a position of dependence or authority, shall be sentenced to a term of imprisonment of two to eight years.", "...", "(4) The sentence shall be three to fifteen years’ imprisonment:", "1. if the acts are committed by two or more persons;", "...", "(5) The sentence shall be five to twenty years’ imprisonment :", "1. if the acts are committed against two or more minors.", "...”", "Article 151", "“(1) Any person who engages in sexual intercourse with a minor under the age of fourteen, in so far as the act does not constitute the offence referred to in Article 152, shall be sentenced to a term of imprisonment of two to six years.", "...”", "Article 152", "“(1) Any person who engages in sexual intercourse with a person of the female sex :", "1. who is unable to defend herself, where she has not consented;", "2. who was compelled by the use of force or threats;", "3. who was reduced to a state of helplessness by the perpetrator;", "shall be sentenced to a term of imprisonment of two to eight years for rape.", "...", "(4) The sentence for rape shall be ten to twenty years’ imprisonment:", "1. if the victim is under fourteen years of age;", "...”", "Article 155b", "“Any person who incites a minor under fourteen years of age to take part in sexual acts, whether real, virtual or simulated, between persons of the same or the opposite sex, or in lascivious displays of sexual organs, sodomy, masturbation, sadism or masochism, or to observe such acts, shall be sentenced to a term of imprisonment of up to three years or to a probationary period.”", "Article 157", "“(1) Any person who engages in an act of sexual penetration or sexual gratification with a person of the same sex using force or threats, abusing a position of dominance or authority or taking advantage of the person’s helplessness, shall be sentenced to a term of imprisonment of two to eight years.", "(2) Where the victim is under fourteen years of age the sentence shall be three to twenty years’ imprisonment.", "(3) Any person who engages in an act of sexual penetration or sexual gratification with a person of the same sex under the age of fourteen shall be sentenced to between two and six years’ imprisonment.", "...”", "Article 159", "“(1) Any person who creates, exhibits, distributes, offers, sells, rents out or otherwise propagates pornographic material shall be sentenced to up to one year’s imprisonment and to a fine ranging from 1,000 to 3,000 levs [approximately 500 to 1,500 euros].", "...", "(4) The offences referred to in paragraphs 1 to 3 shall be punishable by a sentence of up to six years’ imprisonment and a fine of up to 8,000 levs [approximately 4,000 euros] where a person who is or appears to be under the age of eighteen is employed in the production of pornographic material. ...”", "The Code of Criminal Procedure", "116. Under Articles 207 to 211 of the 2006 Code of Criminal Procedure, criminal proceedings are instituted by the authorities where there are legal grounds ( законен повод ) and sufficient evidence ( достатъчно данни ) pointing to the commission of a criminal offence. The legal grounds may be a report ( съобщение ) addressed to the public prosecutor or another competent body alleging that an offence has been committed, a press article, statements made by the perpetrator of the offence, or direct observation by the prosecuting authorities of the commission of an offence.", "117. In order to decide whether it is necessary to institute criminal proceedings the public prosecutor opens a case file ( преписка ) and carries out a preliminary investigation ( проверка ). In that connection he or she may – either in person or by delegating powers to the competent public authorities, and in particular the police – gather all the documents, information, testimony, expert opinions and other relevant evidence (section 145 of the Judiciary Act).", "118. Where the prosecutor decides not to institute criminal proceedings and discontinues the case ( отказ да се образува досъдебно производство ), he or she must inform the victim of the alleged offence or his or her heirs, any legal entity affected, and the person who made the report (Article 213 of the Code of Criminal Procedure). The higher-ranking prosecutor may, on an application from the above-mentioned persons or of his or her own motion, set aside the discontinuance order and order the opening of criminal proceedings (Article 46 § 3 and Article 213 § 2 of the Code).", "119. Under Article 160 of the Code of Criminal Procedure, a search may be ordered in the context of criminal proceedings where there are reasonable grounds to consider that objects, documents or IT systems containing information that may be of relevance to the case are likely to be found at a particular location. Searches may only be conducted with judicial authorisation, except in urgent situations where an immediate search is the only means of gathering and preserving the evidence (Article 161 of the Code).", "120. Under Article 172 of the Code of Criminal Procedure, the prosecuting authorities may make use of special information-gathering techniques such as telephone tapping, only in investigating serious offences including those referred to in Articles 149 to 159 of the Criminal Code, and where the relevant circumstances cannot be established using other means or it would be particularly difficult for the authorities to establish them without using these techniques. The use of special information-gathering methods and techniques must be approved by a judge on a reasoned application by the prosecutor in charge of the investigation (Article 173).", "The Child Protection Act", "121. The Child Protection Act passed in 2000 is aimed at ensuring the protection of children and respect for their rights. Section 3 establishes the defence of the child’s best interests as one of the guiding principles of child protection. Under section 11, each child is entitled to protection, in particular, against child-rearing methods that are contrary to his or her dignity and against all forms of physical, psychological and other violence.", "122. The SACP is the main authority tasked with ensuring child protection, in cooperation with social services, the various ministries, mayors and the municipal social services. Under section 17a(1) of the Child Protection Act, the President of the SACP is empowered, among other things, to monitor respect for children’s rights by schools, healthcare establishments and specialised institutions such as orphanages. In the event of an infringement of these rights or of the applicable rules, he or she issues binding instructions with a view to remedying the shortcomings identified. The President of the SACP, like the municipal social welfare services, has powers to report a case to the police, the prosecuting authorities or the courts where a child is at risk.", "INTERNATIONAL LAWUnited Nations", "United Nations", "United Nations", "123. The Convention on the Rights of the Child, adopted on 20 November 1989 and ratified by almost all the member States of the United Nations, is designed to recognise and protect specific rights for children, extending to the latter the concept of human rights set out in the Universal Declaration of Human Rights.", "124. The relevant provisions of that Convention read as follows:", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "...”", "Article 19", "“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”", "125. The Committee on the Rights of the Child monitors implementation of the Convention on the Rights of the Child. In its General Comment No. 13 of 18 April 2011, entitled “The right of the child to freedom from all forms of violence” and prompted by the “[alarming] extent and intensity of violence exerted on children”, it made the following observations concerning Article 19 of that Convention :", "(a) Article 19 § 1 prohibits all forms of violence, including physical bullying and hazing by adults and by other children;", "(b) sexual abuse comprises any sexual activities imposed by an adult on a child, or “committed against a child by another child, if the child offender is significantly older than the child victim or uses power, threat or other means of pressure”;", "(c) Article 19 § 1 prohibits “[t]he process of taking, making, permitting to take, distributing, showing, possessing or advertising indecent photographs ... and videos of children ...”;", "(d) Article 19 § 2 imposes an obligation to take measures to identify and report violence, to investigate and to ensure judicial involvement.", "126. As regards investigations, General Comment No. 13 states as follows:", "“Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights ‑ based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. Extreme care must be taken to avoid subjecting the child to further harm through the process of the investigation. Towards this end, all parties are obliged to invite and give due weight to the child’s views.”", "The General Comment specifies that judicial involvement may include criminal-law procedures “which must be strictly applied in order to abolish the widespread practice of de jure or de facto impunity, in particular of State actors.”", "Council of EuropeThe Lanzarote Convention", "The Lanzarote Convention", "The Lanzarote Convention", "127. The Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (“the Lanzarote Convention”), which was adopted by the Committee of Ministers on 12 July 2007 and entered into force on 1 July 2010, is designed to prevent and combat sexual exploitation and sexual abuse of children, protect the rights of child victims of sexual exploitation and sexual abuse, and promote national and international cooperation against sexual exploitation and sexual abuse of children. It entered into force on 1 April 2012 in respect of Bulgaria and on 1 May 2013 in respect of Italy. It requires the States Parties, in particular, to criminalise all forms of sexual exploitation and sexual abuse of children (Articles 18 to 24) and to adopt measures to assist victims. The Convention also lays down certain requirements to be met as regards the investigation and prosecution of such offences. The relevant parts of this Convention provide as follows:", "Chapter IV – Protective measures and assistance to victims", "Article 11 – Principles", "“1. Each Party shall establish effective social programmes and set up multidisciplinary structures to provide the necessary support for victims, their close relatives and for any person who is responsible for their care.", "...”", "Article 12 – Reporting suspicion of sexual exploitation or sexual abuse", "“...", "2. Each Party shall take the necessary legislative or other measures to encourage any person who knows about or suspects, in good faith, sexual exploitation or sexual abuse of children to report these facts to the competent services.", "...”", "Article 13 – Helplines", "“Each Party shall take the necessary legislative or other measures to encourage and support the setting up of information services, such as telephone or Internet helplines, to provide advice to callers, even confidentially or with due regard for their anonymity. ”", "Article 14 – Assistance to victims", "“...", "3. When the parents or persons who have care of the child are involved in his or her sexual exploitation or sexual abuse, the intervention procedures taken in application of Article 11, paragraph 1, shall include:", "– the possibility of removing the alleged perpetrator; ...”", "Chapter VI - Substantive criminal law", "Article 18 – Sexual abuse", "“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:", "(a) engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;", "(b) engaging in sexual activities with a child where:", "– use is made of coercion, force or threats; or", "– abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or", "– abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.", "...”", "Article 25 – Jurisdiction", "“1. Each Party shall take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed:", "(a) in its territory; or", "...", "(d) by one of its nationals; or", "(e) by a person who has his or her habitual residence in its territory.”", "Article 27 – Sanctions and measures", "“1. Each Party shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include penalties involving deprivation of liberty which can give rise to extradition.", "...", "3. Each Party shall take the necessary legislative or other measures to:", "(a) provide for the seizure and confiscation of:", "– goods, documents and other instrumentalities used to commit the offences, established in accordance with this Convention or to facilitate their commission;", "– proceeds derived from such offences or property the value of which corresponds to such proceeds;", "(b) enable the temporary or permanent closure of any establishment used to carry out any of the offences established in accordance with this Convention, without prejudice to the rights of bona fide third parties, or to deny the perpetrator, temporarily or permanently, the exercise of the professional or voluntary activity involving contact with children in the course of which the offence was committed.", "...”", "Chapter VII – Investigation, prosecution and procedural law", "Article 30 – Principles", "“1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.", "2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate.", "3. Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay.", "4. Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.", "5. Each Party shall take the necessary legislative or other measures, in conformity with the fundamental principles of its internal law:", "– to ensure an effective investigation and prosecution of offences established in accordance with this Convention, allowing, where appropriate, for the possibility of covert operations;", "– to enable units or investigative services to identify the victims of the offences established in accordance with Article 20, in particular by analysing child pornography material, such as photographs and audiovisual recordings transmitted or made available through the use of information and communication technologies.”", "Article 31 – General measures of protection", "“1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:", "(a) informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases;", "...", "(c) enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered;", "(d) providing them with appropriate support services so that their rights and interests are duly presented and taken into account;", "(e) protecting their privacy, their identity and their image and by taking measures in accordance with internal law to prevent the public dissemination of any information that could lead to their identification;", "...", "2. Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings.", "...”", "Article 32 – Initiation of proceedings", "“Each Party shall take the necessary legislative or other measures to ensure that investigations or prosecution of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, and that the proceedings may continue even if the victim has withdrawn his or her statements.”", "Article 34 – Investigations", "“1. Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. ...”", "Article 35 – Interviews with the child", "“1. Each Party shall take the necessary legislative or other measures to ensure that:", "(a) interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;", "(b) interviews with the child take place, where necessary, in premises designed or adapted for this purpose;", "(c) interviews with the child are carried out by professionals trained for this purpose;", "(d) the same persons, if possible and where appropriate, conduct all interviews with the child;", "(e) the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;", "(f) the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.", "2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.", "...”", "Article 36 – Criminal court proceedings", "“1. Each Party shall take the necessary legislative or other measures, with due respect for the rules governing the autonomy of legal professions, to ensure that training on children’s rights and sexual exploitation and sexual abuse of children is available for the benefit of all persons involved in the proceedings, in particular judges, prosecutors and lawyers. ...”", "Chapter IX – International co-operation", "Article 38 – General principles and measures for international co-operation", "“1. The Parties shall co-operate with each other, in accordance with the provisions of this Convention, and through the application of relevant applicable international and regional instruments, arrangements agreed on the basis of uniform or reciprocal legislation and internal laws, to the widest extent possible, for the purpose of:", "(a) preventing and combating sexual exploitation and sexual abuse of children;", "(b) protecting and providing assistance to victims;", "(c) investigations or proceedings concerning the offences established in accordance with this Convention.", "2. Each Party shall take the necessary legislative or other measures to ensure that victims of an offence established in accordance with this Convention in the territory of a Party other than the one where they reside may make a complaint before the competent authorities of their State of residence.", "...”", "The Explanatory Report on the Lanzarote Convention", "128. The Explanatory Report on the Lanzarote Convention stresses that Article 18, which defines the offence of sexual abuse of a child, requires that children, irrespective of their age, be protected in “situations where the persons involved abuse a relationship of trust with the child resulting from a natural, social or religious authority which enables them to control, punish or reward the child emotionally, economically, or even physically.”", "129. With regard to Article 30 of the Lanzarote Convention concerning the principles governing investigations, the Explanatory Report specifies as follows.", "(a) According to paragraph 3 of that Article, investigations and proceedings “should be treated as priority and without unjustified delays, as the excessive length of proceedings may be understood by the child victim as a denial of his testimony or a refusal to be heard and could exacerbate the trauma which he or she has already suffered”.", "(b) Paragraph 5, first indent, states that “the Parties must take the necessary legislative or other measures to ensure an effective investigation and prosecution of the offences established ... It is for the Parties to decide on the methods of investigation to be used. However, States should allow, where appropriate and in conformity with the fundamental principles of their internal law, the use of covert operations. ”", "(c) The second indent urges the Parties “to develop techniques for examining material containing pornographic images in order to make it easier to identify victims.”", "Regarding the recommendation to conduct covert operations where appropriate, the report specifies that “it is left to the Parties to decide on when and under which circumstances such investigative methods should be allowed, taking into account, inter alia, the principle of proportionality in relation to the rules of evidence and regarding the nature and seriousness of the offences under investigation.”", "Declaration of the Lanzarote Committee on protecting children in out-of-home care from sexual exploitation and sexual abuse", "130. The Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse (“the Lanzarote Committee”) is tasked with monitoring the implementation of the Lanzarote Convention. To that end it is mandated, in particular, to facilitate the effective use and implementation of the Convention, including the identification of any problems, and to express an opinion on any question concerning its application (Article 41 §§ 1 and 3 of the Lanzarote Convention).", "131. At its 25 th meeting (15-18 October 2019) the Lanzarote Committee adopted a declaration on protecting children in out-of-home care from sexual exploitation and sexual abuse. The relevant parts of the declaration read as follows:", "“The Lanzarote Committee calls upon the States Parties to the Lanzarote Convention to:", "...", "2. ensure that in all types of out of home care settings there are:", "(i) comprehensive screening procedures for all persons taking care of children;", "(ii) specific measures to prevent abuse of children’s increased vulnerability and dependence;", "(iii) adequate mechanisms for supporting children to disclose any sexual violence;", "(iv) protocols to ensure that, in the event of disclosure, effective follow-up is given in terms of assistance to the alleged victims and investigation of the alleged offences by the appropriate authorities;", "(v) clear procedures to allow for the possibility of removing the alleged perpetrator from the out of home care setting from the onset of the investigation;", "...", "4. provide victims of sexual abuse in out-of-home care settings with long-term assistance in terms of medical, psychological and social support, and also provide them with legal aid and compensation;", "...", "8. encourage research and action at national and international levels to:", "(i) analyse and review the phenomenon of child sexual abuse in all types of out ‑ of ‑ home care, including the issue of liability of legal persons;", "(ii) allow the voices of the survivors of child sexual abuse in out-of-home care to be heard and acknowledged;", "(iii) identify best practices for supporting survivors of child sexual abuse that occurred in out-of-home care;", "(iv) develop comprehensive planning for addressing child sexual abuse in out-of-home care by effective measures for prevention, service provision and the prosecution of offenders.”", "The European Social Charter", "132. Article 7 of the European Social Charter (adopted in 1961 and revised in 1996) provides that children and young persons have the right to special protection against physical and moral danger to which they are exposed. Article 17 of the Revised Social Charter provides for the right of children and young persons to appropriate social, legal and economic protection. Sub-paragraph 1 (b) of Article 17 requires, in particular, that all appropriate and necessary measures be taken to protect children and young persons against negligence, violence or exploitation.", "Guidelines on child-friendly justice", "133. The Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice were adopted by the Committee of Ministers on 17 November 2010. The relevant passages read as follows:", "III. Fundamental principles", "A. Participation", "“1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children’s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful.", "...”", "B. Best interests of the child", "“1. Member states should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them.", "...”", "D. Protection from discrimination", "“...", "2. Specific protection and assistance may need to be granted to more vulnerable children, such as migrant children, refugee and asylum-seeking children, unaccompanied children, children with disabilities, homeless and street children, Roma children, and children in residential institutions.”", "IV. Child-friendly justice before, during and after judicial proceedings", "A. General elements of child-friendly justice", "“1. Information and advice", "1. From their first involvement with the justice system or other competent authorities (such as the police, immigration, educational, social or health care services) and throughout that process, children and their parents should be promptly and adequately informed of, inter alia :", "a. their rights, in particular the specific rights children have with regard to judicial or non-judicial proceedings in which they are or might be involved, and the instruments available to remedy possible violations of their rights including the opportunity to have recourse to either a judicial or non-judicial proceeding or other interventions. This may include information on the likely duration of proceedings, possible access to appeals and independent complaints mechanisms;", "b. the system and procedures involved, taking into consideration the particular place the child will have and the role he or she may play in it and the different procedural steps;", "c. the existing support mechanisms for the child when participating in the judicial or non-judicial procedures;", "d. the appropriateness and possible consequences of given in-court or out-of-court proceedings;", "e. where applicable, the charges or the follow-up given to their complaint;", "f. the time and place of court proceedings and other relevant events, such as hearings, if the child is personally affected;", "g. the general progress and outcome of the proceedings or intervention;", "...", "k. the availability of the services (health, psychological, social, interpretation and translation, and other) or organisations which can provide support and the means of accessing such services along with emergency financial support, where applicable;", "l. any special arrangements available in order to protect as far as possible their best interests if they are resident in another state.", "2. The information and advice should be provided to children in a manner adapted to their age and maturity, in a language which they can understand and which is gender and culture sensitive.", "3. As a rule, both the child and parents or legal representatives should directly receive the information. Provision of the information to the parents should not be an alternative to communicating the information to the child.", "...”", "D. Child-friendly justice during judicial proceedings", "“...", "3. Right to be heard and to express views", "44. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Means used for this purpose should be adapted to the child’s level of understanding and ability to communicate and take into account the circumstances of the case. Children should be consulted on the manner in which they wish to be heard. ...", "48. Children should be provided with all necessary information on how effectively to use the right to be heard. However, it should be explained to them that their right to be heard and to have their views taken into consideration may not necessarily determine the final decision.", "49. Judgments and court rulings affecting children should be duly reasoned and explained to them in language that children can understand, particularly those decisions in which the child’s views and opinions have not been followed.", "...", "5. Organisation of the proceedings, child-friendly environment and child-friendly language", "54. In all proceedings, children should be treated with respect for their age, their special needs, their maturity and level of understanding, and bearing in mind any communication difficulties they may have. Cases involving children should be dealt with in non-intimidating and child-sensitive settings.", "...", "58. Children should be allowed to be accompanied by their parents or, where appropriate, an adult of their choice, unless a reasoned decision has been made to the contrary in respect of that person.", "59. Interview methods, such as video or audio-recording or pre-trial hearings in camera, should be used and considered as admissible evidence.", "...", "6. Evidence/statements by children", "64. Interviews of and the gathering of statements from children should, as far as possible, be carried out by trained professionals. Every effort should be made for children to give evidence in the most favourable settings and under the most suitable conditions, having regard to their age, maturity and level of understanding and any communication difficulties they may have.", "65. Audiovisual statements from children who are victims or witnesses should be encouraged, while respecting the right of other parties to contest the content of such statements.", "66. When more than one interview is necessary, they should preferably be carried out by the same person, in order to ensure coherence of approach in the best interests of the child.", "67. The number of interviews should be as limited as possible and their length should be adapted to the child’s age and attention span.", "68. Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim.", "...", "70. The existence of less strict rules on giving evidence such as absence of the requirement for oath or other similar declarations, or other child-friendly procedural measures, should not in itself diminish the value given to a child’s testimony or evidence.", "...", "73. A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.”", "V. Promoting other child-friendly actions", "“Member states are encouraged to:", "...", "e. facilitate children’s access to courts and complaint mechanisms and further recognise and facilitate the role of NGOs and other independent bodies or institutions such as children’s ombudsmen in supporting children’s effective access to courts and independent complaint mechanisms, both on a national and international level;", "...", "g. develop and facilitate the use by children and others acting on their behalf of universal and European human and children’s rights protection mechanisms for the pursuit of justice and protection of rights when domestic remedies do not exist or have been exhausted;", "...", "j. set up child-friendly, multi-agency and interdisciplinary centres for child victims and witnesses where children could be interviewed and medically examined for forensic purposes, comprehensively assessed and receive all relevant therapeutic services from appropriate professionals;", "k. set up specialised and accessible support and information services, such as online consultation, help lines and local community services free of charge;", "...”", "Recommendation Rec(2005)5 of the Committee of Ministers on the rights of children living in residential institutions", "134. In this recommendation, adopted on 16 March 2005, the Committee of Ministers of the Council of Europe called on the governments of the member States to adopt the necessary legislative and other measures to guarantee that the principles and quality standards set out in the recommendation were observed, in particular by putting in place an efficient system of monitoring and external control of residential institutions. Under the heading of basic principles, the recommendation stated as follows:", "“– any measures of control and discipline which may be used in residential institutions, including those with the aim of preventing self-inflicted harm or injury to others, should be based on public regulations and approved standards; ...”", "The recommendation also set forth certain specific rights for children living in residential institutions, including:", "“– the right to respect for the child’s human dignity and physical integrity; in particular, the right to conditions of human and non-degrading treatment and a non-violent upbringing, including the protection against corporal punishment and all forms of abuse;", "...", "– the right to make complaints to an identifiable, impartial and independent body in order to assert children’s fundamental rights.”", "European Union", "135. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also sets out provisions designed to strengthen the prevention of this type of crime and the protection of the victims thereof. It contains provisions similar to those of the Lanzarote Convention. The time-limit for transposal of the directive was 18 December 2013, after the events of relevance to the present case.", "136. Prior to Directive 2011/93/EU, Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography provided that member States should criminalise the most serious forms of sexual abuse and sexual exploitation of children by means of a comprehensive approach including effective, proportionate and dissuasive sanctions accompanied by the widest possible judicial cooperation, and provide a minimum level of assistance to victims. For its part, Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings established a set of victims’ rights in criminal proceedings, including the right to protection and compensation.", "137. The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, which entered into force in 2005 and was applicable at the time of the events in the present case, is designed to supplement and facilitate implementation of the provisions concerning mutual legal assistance among the European Union member States.", "THE LAW", "SCOPE OF THE CASE BEFORE THE GRAND CHAMBER", "138. The Court notes that the adoptive parents of the three applicants lodged the original application on the applicants’ behalf and also on their own behalf. On 5 September 2016 the President of the Section decided to give notice of the complaints to the respondent Government in so far as they related to the three minor applicants, and to declare inadmissible the complaints raised by the parents on their own behalf (see paragraph 4 above). Under Article 27 § 2 of the Convention and Rule 54 § 3 of the Rules of Court, the decision to declare those complaints inadmissible is final.", "139. The Chamber, in its judgment, reiterated these circumstances and specified that the judgment did not concern the complaints that had been declared inadmissible (see X and Others v. Bulgaria, no. 22457/16, § 58, 17 January 2019 – “the Chamber judgment”).", "140. In the Grand Chamber proceedings, the applicants maintained that the Court should examine the complaints submitted by the parents on their own behalf. The Government disagreed, arguing that the decision to declare part of the application inadmissible was final.", "141. The Court reiterates that, according to its case-law, the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility and do not include the complaints that have been declared inadmissible (see Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 84, 24 January 2017). Accordingly, the Grand Chamber will confine its examination in the present case to the complaints raised on behalf of the three minor applicants and declared admissible by the Chamber.", "THE GOVERNMENT’S PRELIMINARY OBJECTION", "142. Before the Grand Chamber, the Government reiterated the objection of inadmissibility for abuse of the right of individual application which the Chamber had dismissed in its judgment (see paragraphs 62-64 of the Chamber judgment).", "143. Firstly, they argued that the applicants’ legal representatives, in an attempt to mislead the Court, had knowingly presented untrue facts, and that their allegations generally were based on fantasy and not corroborated by any hard evidence such as medical certificates. Secondly, the Government complained of what they regarded as the disrespectful and insulting language used in the applicants’ observations with regard to the Bulgarian authorities and individuals whom the applicants had described as paedophiles and accomplices to criminal acts.", "144. The applicants did not comment on this issue.", "145. The Court reiterates that, according to its case-law, an application is an abuse of the right of application if it is knowingly based on untrue facts with a view to deceiving the Court (see, among other authorities, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). In the present case, irrespective of whether the accusations of sexual abuse committed against the applicants are well founded, there is no basis for the Court to conclude that their representatives deliberately presented facts which they knew to be untrue.", "146. An application may also be regarded as an abuse of the right of application where the applicant, in his or her correspondence, uses particularly vexatious, insulting, threatening or provocative language – whether this be against the respondent Government, its Agent, the authorities of the respondent State, the Court itself, its judges, its Registry or members thereof. Nevertheless, it is not sufficient for the applicant’s language to be merely cutting, polemical or sarcastic; it must exceed “the bounds of normal, civil and legitimate criticism” in order to be regarded as abusive ( see Zafranas v. Greece, no. 4056/08, § 26, 4 October 2011, and the case-law cited therein). In that connection, the legal professionals representing applicants before the Court must also ensure compliance with the procedural and ethical rules, including the use of appropriate language. In the present case the Court notes that, in their observations, the applicants made accusations against identified individuals, referring to them as “paedophiles”, and accused the Bulgarian authorities, including the Government Agents, of covering up criminal acts. Although the language used in the applicants’ observations was indeed disrespectful, the Court notes that the subject matter and the context of the present case imposed a heavy emotional burden on the parents and that two of the applicants were still minors at the time their representatives made these remarks. It therefore considers that the applicants themselves cannot be held responsible for the remarks made, and concludes that those remarks did not overstep acceptable limits to an extent that would justify rejecting the application on that ground.", "147. In view of the foregoing, the Court considers that the Government’s preliminary objection should be dismissed.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "148. Relying on Articles 3, 6, 8 and 13 of the Convention, the applicants alleged that they had been the victims of sexual abuse while living in the orphanage in Bulgaria and that the Bulgarian authorities had failed in their positive obligation to protect them against that treatment and in their obligation to conduct an effective investigation into those allegations.", "149. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and that it is not bound by the characterisation given by an applicant or a Government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018, and S.M. v. Croatia [GC], no. 60561/14, §§ 241-43, 25 June 2020). Having regard to the circumstances complained of by the applicants and the manner in which their complaints were formulated, it considers it more appropriate to examine the complaints under Article 3 of the Convention alone (for a similar approach, see S.Z. v. Bulgaria, no. 29263/12, § 30, 3 March 2015).", "Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "The Chamber judgment", "150. The Chamber examined the applicants’ complaints from the standpoint of Articles 3 and 8 of the Convention, which it found to be applicable in the present case. With regard to the procedural aspect of those provisions, it found that the Bulgarian authorities had conducted the investigation in a sufficiently prompt, diligent and thorough manner in the circumstances of the case, that they had responded properly to the appeal lodged by the applicants’ parents and that their findings could not be considered arbitrary or unreasonable. Accordingly, it held that there had been no violation of Articles 3 and 8 in this regard (see paragraphs 98 ‑ 106 of the Chamber judgment).", "151. With regard to the substantive aspect of those provisions, while noting that the applicants had not called into question the legal framework of victim protection established by domestic law, the Chamber observed at the outset that a number of general measures had been taken designed to ensure the safety of the children living in the orphanage. It went on to examine whether the Bulgarian authorities had failed in a possible obligation to take concrete preventive action to protect the applicants against a risk of ill-treatment. After observing that it had not been established that the competent authorities had known or ought to have known of the existence of a real and immediate risk to the applicants, it held that the situation had not given rise to any such obligation on the part of the authorities in question. The Chamber therefore found that there had been no violation of the substantive aspect of these provisions (see paragraphs 107 ‑ 10 of the Chamber judgment).", "The parties’ submissions before the Grand ChamberThe applicants", "The applicants", "The applicants", "152. The applicants alleged that they had been the victims of sexual abuse and violence while they had been living in the orphanage in Bulgaria, in the charge of the public authorities. They submitted that their accounts had been deemed credible, on the basis of scientific methods, by their psychologists and by the Italian judicial authorities, which had requested the Bulgarian authorities to institute proceedings. They also referred to the investigative journalism giving rise to the article in L’Espresso and to a report broadcast on Italian television in 2016, which, they maintained, confirmed their allegations.", "153. The applicants contended that Bulgaria was a corrupt country and a destination for paedophile sex tourism. In their view, the location of the orphanage, in a small remote village, was conducive to incidents of this type.", "154. According to the applicants, the orphanage was very far from being the model institution portrayed in the reports and the Government’s observations. Referring in particular to the statements by another Italian adoptive family which they had found on an Internet forum, they maintained that the children had not been supervised continuously and had not slept in separate dormitories, that male workers had had contact with the children and that the orphanage had housed children who were older than the maximum age permitted for this type of institution. They also pointed out that the orphanage had been closed down a few years after the events in question.", "155. The applicants asserted that other children had made complaints of sexual abuse prior to the events in the present case and that nothing had been done. They were not convinced by the explanation offered by the director, who, they said, had claimed that “group emotional transference” had occurred following the stories told by the young girl M. (see paragraph 113 in fine above).", "156. The applicants maintained that the absence of medical certificates – the issuing of which, moreover, would have entailed invasive examinations – did not cast doubt on their statements, as sexual abuse did not always leave physical traces, and in any event such traces tended to disappear over time. Likewise, in their submission, the fact that the general practitioner had not observed signs of violence or sexual abuse did not mean that their existence should be ruled out. They asserted that it was entirely possible that children bearing signs of violence had not been sent to the doctor for examination, or that the doctor had been complicit in the abuse.", "157. The applicants further contended that the Bulgarian authorities had not conducted an effective investigation capable of shedding light on the facts and identifying the persons responsible, but rather had been at pains to demonstrate that Bulgaria could not be held responsible and to call into question their parents’ ability to raise them. They pointed to several purported shortcomings in the investigations carried out, and referred in particular to the analysis contained in the blog of a certain S.S., who they said was a Bulgarian expert on children’s rights working in the non ‑ governmental sector.", "158. The applicants alleged, firstly, that the Bulgarian authorities had not acted promptly and had waited several weeks, until the publication of the article in L’Espresso, before ordering an investigation. In this connection they stated that the complaint submitted to the SACP on 16 November 2012 had not been anonymous since their father’s name had featured in the message; furthermore, no action had been taken in response to the request for the reply, written in Bulgarian, to be translated. They further maintained that the journalist from L’Espresso had sent concrete evidence to the police officer, K., as early as 19 December 2012, and that the Milan public prosecutor’s office had also sent specific information, including the names of the persons responsible, to the Bulgarian embassy on 15 January 2013.", "159. The applicants criticised the Bulgarian authorities for disclosing their identity and the name of the orphanage to the press, thereby publicising the events of the case. In their view, this had breached their right to confidentiality and had also alerted the perpetrators.", "160. They criticised the manner in which the Bulgarian authorities had carried out the investigation, and in particular the fact of conducting the interviews with the children on the premises of the orphanage and in the presence of staff members who could have been the abusers, and not applying scientific methods. In the applicants’ view, in order to be effective the investigations should have included measures such as telephone tapping, surveillance by undercover agents, searches of the institution and of the employees’ homes, the taking of DNA samples from the children and the employees, and the temporary suspension of the director in order to prevent pressure being put on the children. In their submission, the authorities should also have lodged a request to interview the applicants, their parents and other potential witnesses.", "161. The applicants asserted that in acting as they had, the Bulgarian authorities had also breached their obligations under the international conventions on the protection of children’s rights such as the Convention on the Rights of the Child and the Lanzarote Convention. They argued in particular that Bulgaria had not enacted the general measures of protection required by the Lanzarote Convention, such as the establishment of a national register of persons convicted of paedophile offences, or orders barring such individuals from carrying out occupations involving contact with children. In the investigation in the present case the authorities had breached the victims’ right under that Convention to be informed of the follow-up to their complaint, to give evidence, to receive appropriate assistance and not to have their identity disclosed.", "The Government", "162. In the Government’s view, the facts of the present case did not disclose a violation of the Convention. They requested the Grand Chamber to uphold the Chamber’s findings in that regard.", "163. In their submission, it was beyond doubt that a legal framework existed in Bulgaria, particularly in the criminal sphere, enabling acts such as those complained of in the present case to be punished and conforming to the requirements of the relevant international instruments. Prior to 2012 the country had already enacted a number of domestic-law provisions in order to comply with the Convention on the Rights of the Child. As to the Lanzarote Convention, it had come into force in respect of Bulgaria on 1 April 2012 and had therefore not been applicable for most of the period during which the applicants claimed to have been subjected to abuse. Nevertheless, the majority of the substantive and procedural standards advocated by that Convention had been adopted between 2009 and 2011.", "164. As to the applicants’ claims that they had been subjected to physical violence and sexual abuse in the orphanage, the Government submitted that the investigations carried out by the Bulgarian authorities had not brought to light any evidence to suggest that the acts in question had in fact occurred, whether with regard to the applicants or to other children in the orphanage, still less that a systematically run criminal organisation had existed. In their view, those accusations had been based solely on the applicants’ statements, which gave very little detail and contained contradictions that had been highlighted by the Bulgarian prosecuting authorities. They added that the applicants’ allegations had varied even in the proceedings before the Court; the original application had mainly complained of abuse by other children, whereas the request for referral to the Grand Chamber had contained much more serious allegations concerning the existence of an organised criminal network.", "165. The Government stressed the fact that the applicants had not produced any medical certificates to corroborate their allegations of rape, in particular. Basing their view on an expert opinion, they maintained that the relevant examinations were not invasive or traumatic.", "166. They further submitted that had the applicants’ allegations of very serious violence been true the general practitioner, who was based outside the orphanage and visited twice a week, would have been bound to notice traces of the said violence when conducting his check-ups. No complaint to that effect had been reported to the psychologist or to any other member of staff. The stories told by the young girl, M., had concerned a rape allegedly committed within her family, and a medical examination had been carried out straight away in response to her allegations.", "167. The Government also submitted that, contrary to the applicants’ assertions, the decisions of the Italian judicial authorities, and in particular the Youth Court’s decision of 13 May 2014 (see paragraphs 94-96 above), did not contain any finding to the effect that the applicants had been the victims of criminal offences. The decision in question had merely reiterated the applicants’ statements and ordered the termination of the proceedings. In any event, that decision had not been sent to the Bulgarian authorities in charge of the investigation.", "168. The Government maintained that the orphanage had taken the necessary measures to ensure the children’s safety. The orphanage had been equipped with security cameras and access by persons from outside had been subject to checks. In addition, the children had been able to report possible abuse, as they had had access to a telephone and to the number of the national helpline for children in danger, and to the orphanage’s psychologist. The children had also attended school and, in some cases, returned home to their families periodically, with the result that they had had contact with the outside world.", "169. In view of the seriousness of the applicants’ allegations, a team of psychologists had been sent to the orphanage for a week following the first inspection in January 2013, in order to provide the children with the necessary support.", "170. As to the possible procedural obligations arising out of the relevant provisions of the Convention, the Government maintained that the competent authorities in Bulgaria had acted swiftly after learning of the applicants’ allegations through the articles in the press. It was only at that stage, when the name of the intermediary organisation, AiBi, had been made public, that the authorities had obtained the applicants’ identity from that organisation. Prior to that date, the information provided by the applicants’ father in his email and by the Nadja Centre had not been sufficiently precise to enable an investigation to be started.", "171. The Government contended that the investigation carried out had been independent, thorough and full. In particular, the SACP and all the individuals involved in the investigations had had no hierarchical links with the potential abusers. The SACP had issued detailed methodological instructions for the conduct of inspections concerning respect for children’s rights in schools, specialised institutions and all institutions that received children. According to those instructions, the experts conducting the inspections were required, among other things, to be objective and independent, to comply with professional ethical standards, and to ensure respect for the children’s personality and dignity and the confidentiality of the personal data collected. The recommended methods for the conduct of inspections included a review of the files, interviews, a written inquiry, observation, study of best practice, group discussions and role play.", "172. As to the thoroughness of the investigations, the Government argued that the obligation on the State was one of means and not one of result. In the present case the various relevant services had carried out several inspections at the orphanage and had sought explanations from the individuals who were the subject of the applicants’ allegations. In order to arrive at the truth, they had compared the results of those investigations and the applicants’ allegations.", "173. In that regard the Government raised an objection in principle to any consideration of the comments made by S.S. and reiterated by the applicants (see paragraph 157 above). In their view, S.S. had no connection with the investigation and was not qualified to express an opinion.", "174. On the subject of searches, the Government explained that such measures could be taken only where criminal proceedings had been initiated and where there were reasonable grounds to consider that items of evidence were likely be found at a particular location. The carrying-out of such searches was subject to judicial authorisation except in urgent cases. In the present case the applicants’ allegations and the investigations carried out had not disclosed any evidence to justify conducting searches. As to the use of covert operations, the Government stressed that the applicants had made the case public with the publication of the article in L’Espresso. Furthermore, the applicants had not requested at any stage that additional investigative steps be taken, including in their appeal against the order discontinuing the case.", "175. Regarding the information provided to the applicants, the Government submitted that the proceedings in Bulgaria had not been instituted at the request of the adoptive parents, but of the authorities’ own motion, and that the decisions taken had been notified to the Italian authorities in January 2015 at the latter’s request. In the Government’s submission, there had been nothing to prevent the applicants’ parents from seeking more detailed information from the public prosecutor’s office or requesting further investigative measures. Furthermore, the observations made by the applicants had been examined by the higher-ranking prosecutor’s office.", "The Court’s assessmentGeneral principles", "General principles", "General principles", "176. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is, in the nature of things, relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 116, 25 June 2019).", "177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see, among other authorities, O’Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts), and M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003 ‑ XII). Children and other vulnerable individuals, in particular, are entitled to effective protection (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI; M.C. v. Bulgaria, cited above, § 150; and A and B v. Croatia, no. 7144/15, § 106, 20 June 2019).", "178. It emerges from the Court’s case-law as set forth in the ensuing paragraphs that the authorities’ positive obligations under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and, thirdly, an obligation to carry out an effective investigation into arguable claims of infliction of such treatment. Generally speaking, the first two aspects of these positive obligations are classified as “substantive”, while the third aspect corresponds to the State’s positive “procedural” obligation.", "(a) Positive obligation to put in place an appropriate legislative and regulatory framework", "179. The positive obligation under Article 3 of the Convention necessitates in particular establishing a legislative and regulatory framework to shield individuals adequately from breaches of their physical and psychological integrity, particularly, in the most serious cases, through the enactment of criminal-law provisions and their effective application in practice (see S.Z. v. Bulgaria, cited above, § 43, and A and B v. Croatia, cited above, § 110). Regarding, more specifically, serious acts such as rape and the sexual abuse of children, it falls upon the member States to ensure that efficient criminal-law provisions are in place (see Söderman v. Sweden [GC], no. 5786/08, § 82, ECHR 2013, and M.C. v. Bulgaria, cited above, § 150). This obligation also stems from the provisions of other international instruments, such as, in particular, Articles 18 to 24 of the Lanzarote Convention (see paragraph 127 above). In that connection the Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 90, ECHR 2001 ‑ II, and Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI).", "180. The positive obligation of protection assumes particular importance in the context of a public service with a duty to protect the health and well ‑ being of children, especially where those children are particularly vulnerable and are under the exclusive control of the authorities (see, in the context of primary education, O’Keeffe, cited above, § 145, and, in the context of a facility for disabled children and under Article 2 of the Convention, Nencheva and Others v. Bulgaria, no. 48609/06, §§ 106 ‑ 16 and 119-20, 18 June 2013). It may, in some circumstances, require the adoption of special measures and safeguards. Hence, the Court has specified in relation to cases of child sexual abuse, particularly where the abuser is in a position of authority over the child, that the existence of useful detection and reporting mechanisms is fundamental to the effective implementation of the relevant criminal laws (see O’Keeffe, cited above, § 148).", "(b) Positive obligation to take operational protective measures", "181. As with Article 2 of the Convention, Article 3 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of ill-treatment (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII).", "182. However, this positive obligation is to be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities, bearing in mind the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment can entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see O’Keeffe, cited above, § 144).", "183. Therefore, for a positive obligation to arise it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Đorđević v. Croatia, no. 41526/10, § 139, ECHR 2012, and Buturugă v. Romania, no. 56867/15, § 61, 11 February 2020).", "(c) Procedural obligation to carry out an effective investigation", "184. Furthermore, where an individual claims on arguable grounds to have suffered acts contrary to Article 3, that Article requires the national authorities to conduct an effective official investigation to establish the facts of the case and identify and, if appropriate, punish those responsible. Such an obligation cannot be considered to be limited solely to cases of ill ‑ treatment by State agents (see S.Z. v. Bulgaria, cited above, § 44, and B.V. v. Belgium, no. 61030/08, § 56, 2 May 2017).", "185. In order to be effective, the investigation must be sufficiently thorough. The authorities must take reasonable measures available to them to obtain evidence relating to the offence in question (see S.Z. v. Bulgaria, cited above, § 45). They must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation (see Bouyid v. Belgium [GC], no. 23380/09, § 123, ECHR 2015, and B.V. v. Belgium, cited above, § 60). Any deficiency in the investigation which undermines its ability to establish the facts or the identity of the persons responsible will risk falling foul of this standard (see Bouyid, cited above, § 120, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004 ‑ IV (extracts)).", "186. However, the obligation to conduct an effective investigation is an obligation not of result but of means. There is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see A, B and C v. Latvia, no. 30808/11, § 149, 31 March 2016, and M.G.C. v. Romania, no. 61495/11, § 58, 15 March 2016). Furthermore, the Court is not concerned with allegations of errors or isolated omissions in the investigation: it cannot replace the domestic authorities in the assessment of the facts of the case, nor can it decide on the alleged perpetrators’ criminal responsibility (see B.V. v. Belgium, cited above, § 61, and M. and C. v. Romania, no. 29032/04, § 113, 27 September 2011). Likewise, it is not the Court’s task to call into question the lines of inquiry pursued by the investigators or the findings of fact made by them, unless they manifestly fail to take into account relevant elements or are arbitrary (see S.Z. v. Bulgaria, cited above, § 50, and Y v. Bulgaria, no. 41990/18, § 82, 20 February 2020). Nevertheless, a failure to pursue an obvious line of inquiry can decisively undermine the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see M.N. v. Bulgaria, no. 3832/06, § 48, 27 November 2012, and Y v. Bulgaria, cited above, § 82).", "187. Moreover, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, among other authorities, Bouyid, cited above, § 118).", "188. A requirement of promptness and reasonable expedition is also implicit in the obligation to carry out an investigation. In this connection the Court has considered it an essential requirement that investigations be promptly instituted and carried out. Regardless of the final outcome of the proceedings, the protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to the authorities (see W. v. Slovenia, no. 24125/06, § 64, 23 January 2014; S.Z. v. Bulgaria, cited above, § 47; and V.C. v. Italy, no. 54227/14, § 95, 1 February 2018).", "189. Moreover, the victim should be able to participate effectively in the investigation (see Bouyid, cited above, § 122, and B.V. v. Belgium, cited above, § 59). In addition, the investigation must be accessible to the victim to the extent necessary to safeguard his or her legitimate interests (see, in an Article 2 context, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 303, ECHR 2011 (extracts)).", "190. The investigation’s conclusions, meanwhile, must be based on thorough, objective and impartial analysis of all relevant elements (see A and B v. Croatia, cited above, § 108). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see, mutatis mutandis, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 234, 30 March 2016).", "191. The requirement of effectiveness of the criminal investigation may in some circumstances include an obligation for the investigating authorities to cooperate with the authorities of another State, implying an obligation to seek or to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there (see, from the standpoint of Article 2 of the Convention, Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 233, 29 January 2019). This means that the States concerned must take whatever reasonable steps they can to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters. Although the Court is not competent to supervise respect for international treaties or obligations other than the Convention, it normally verifies in this context whether the respondent State has used the possibilities available under these instruments (ibid., § 235, and the references cited therein).", "192. Lastly, it is clear from the Court’s case-law that, in cases where children may have been victims of sexual abuse, compliance with the positive obligations arising out of Article 3 requires, in the context of the domestic proceedings, the effective implementation of children’s right to have their best interests as a primary consideration and to have the child’s particular vulnerability and corresponding needs adequately addressed (see A and B v. Croatia, cited above, § 111, and M.M.B. v. Slovakia, no. 6318/17, § 61, 26 November 2019; see also M.G.C. v. Romania, cited above, §§ 70 and 73). These requirements are also set out in other international instruments of relevance to the present case such as the Convention on the Rights of the Child, the Lanzarote Convention and the instruments adopted by the European Union (see paragraphs 124-27 and 135-37 above). More generally, the Court considers that in cases potentially involving child sexual abuse the procedural obligation under Article 3 of the Convention to conduct an effective investigation must be interpreted in the light of the obligations arising out of the other applicable international instruments, and more specifically the Lanzarote Convention.", "Application to the present case", "193. The Court observes that the applicants, owing to their young age and their status as children left without parental care and placed in an institution, were in a particularly vulnerable situation. Against this background, the sexual abuse and violence to which they were allegedly subjected, if established, are sufficiently serious to come within the scope of application of Article 3 of the Convention (see also paragraph 82 of the Chamber judgment). The Court will therefore examine whether the respondent State complied in the present case with its obligations under that provision.", "(a) Positive obligation to put in place an appropriate legislative and regulatory framework", "194. The Court notes at the outset that the applicants did not call into question the existence in the domestic law of the respondent State of criminal legislation aimed at preventing and punishing child sexual abuse. It observes in that regard that the Bulgarian Criminal Code punishes sexual abuse of minors under the age of 14 by persons over 14, even in the absence of force; that it lays down heavier penalties where sexual assault is committed against a minor; and that it prescribes penalties for specific offences such as the exposure of minors to sexual acts or the distribution of pornography (see paragraph 115 above). The provisions in question appear apt to cover the acts complained of by the applicants in the present case.", "195. The Court further reiterates, in the light of the principles established in the judgments in O’Keeffe and Nencheva and Others (see paragraph 180 above), that States have a heightened duty of protection towards children who, like the applicants in the present case, are deprived of parental care and have been placed in the care of a public institution which is responsible for ensuring their safety and well-being, and who are therefore in a particularly vulnerable situation. The Court observes in that regard that the respondent State maintained that a number of mechanisms to prevent and detect ill-treatment in children’s facilities had been put in place. In their respective reports, the competent services which carried out checks at the orphanage in question stated that, pursuant to the rules in force, a number of measures had been taken to ensure the safety of the children living there. According to those reports, access to the institution by persons from outside was monitored by a caretaker and by security cameras and the children were in principle not left unsupervised by staff, in particular during the night and on trips outside the orphanage. The reports also stated that the children were seen regularly by an outside doctor and by the orphanage’s psychologist and that they had access to a telephone and to the number of the helpline for children in danger. Lastly, the Court notes that the respondent State had created a specialised institution, the State Agency for Child Protection (“the SACP”). This body was tasked, among other things, with carrying out inspections of children’s residential facilities on a periodic basis and in response to reports, and was empowered to take the appropriate steps to protect the children, or to apply to the competent authorities for the purpose of engaging the disciplinary or criminal responsibility of the persons involved (see paragraph 122 above).", "196. The Court notes that the applicants contest the actual existence and the effectiveness of some of these measures and mechanisms. However, it observes that the information in the case file does not enable it to confirm or refute the factual findings contained in the reports of the relevant services which inspected the orphanage as regards the implementation of these measures. Moreover, the Court does not have in its possession any evidence to indicate that at the time of the events in Bulgaria there existed, as the applicants have suggested, a systemic issue related to paedophile sex tourism or sexual abuse of young children in residential facilities or in schools, such as to require more stringent measures on the part of the authorities (compare O’Keeffe, cited above, §§ 157-69, in which the Court found that the respondent State had had knowledge of a large number of cases of sexual abuse in primary schools and had not taken measures to prevent the risk of such abuse occurring). In view of the foregoing, the Court does not have sufficient information to find that the legislative and regulatory framework put in place by the respondent State in order to protect children living in institutions against serious breaches of their integrity was defective and thus in breach of the obligations arising out of Article 3 of the Convention in that regard.", "(b) Positive obligation to take preventive operational measures", "197. As the Court observed above, the applicants in the present case were in a particularly vulnerable situation and had been placed in the sole charge of the public authorities. The management of the orphanage had an ongoing duty to ensure the safety, health and well-being of the children in their care, including the applicants. In these circumstances the Court considers that the obligation imposed on the authorities by Article 3 of the Convention to take preventive operational measures where they have, or ought to have, knowledge of a risk that a child may be subjected to ill ‑ treatment, was heightened in the present case and required the authorities in question to exercise particular vigilance. It must therefore ascertain whether, in the particular case, the authorities of the respondent State knew or ought to have known at the time of the existence of a real and immediate risk to the applicants of being subjected to treatment contrary to Article 3 and, if so, whether they took all the measures that could reasonably be expected of them to avoid that risk (see, mutatis mutandis, Osman, cited above, § 116).", "198. The Court notes, on the basis of the documents produced by the Government, that the domestic investigations did not find it established that the director of the orphanage, another member of staff or any other authority had been aware of the abuse alleged by the applicants. According to the investigators’ reports, the psychologist and the general practitioner, who monitored the children in the orphanage on a regular basis, told the investigators that they had not detected any signs leading them to suspect that the applicants or other children had been subjected to violence or sexual abuse. As to the case of the young girl M., referred to by the applicants, the evidence in the file shows that it did not concern abuse committed in the orphanage (see paragraphs 56 and 113 in fine above). In these circumstances, and in the absence of evidence corroborating the assertion that the first applicant had reported abuse to the director, the Court does not have sufficient information to find that the Bulgarian authorities knew or ought to have known of a real and immediate risk to the applicants of being subjected to ill-treatment, such as to give rise to an obligation to take preventive operational measures to protect them against such a risk (see, conversely, Đorđević, cited above, §§ 144-46; V.C. v. Italy, cited above, §§ 99-102; and Talpis v. Italy, no. 41237/14, § 111, 2 March 2017).", "199. In view of the foregoing considerations (see paragraphs 194-98 above), the Court finds that there has been no violation of the substantive limb of Article 3 of the Convention.", "(c) Procedural obligation to carry out an effective investigation", "200. The Court observes that, leaving aside the question whether the first reports made to the Bulgarian authorities were sufficiently detailed, the fact is that, as early as February 2013, those authorities had received more detailed information from the Milan public prosecutor’s office concerning the applicants’ allegations that they had been subjected to sexual abuse in the orphanage in which they had been placed, perpetrated by other children but also by several adults, both members of staff and persons from outside (see paragraph 65 above). This information showed, firstly, that the applicants’ psychologists had deemed their allegations to be credible and, secondly, that the specialised association Telefono Azzurro, the Italian CAI and the Milan public prosecutor’s office had considered them sufficiently serious to warrant an investigation (see paragraphs 22, 62 and 65 above).", "201. Accordingly, the Court considers that the Bulgarian authorities were faced with “arguable” claims, within the meaning of the Court’s case-law, of serious abuse of children in their charge, and that they had a duty under Article 3 of the Convention to take the necessary measures without delay to assess the credibility of the claims, clarify the circumstances of the case and identify those responsible (see M.M.B. v. Slovakia, cited above, § 66, and B.V. v. Belgium, cited above, § 66).", "202. The Court observes that following the press coverage and after the Milan public prosecutor’s office had sent them the evidence gathered and the request made to the Bulgarian Ministry of Justice by the Italian CAI, the Bulgarian authorities took a number of investigative steps. Thus, the SACP and other social services carried out checks and the public prosecutor ordered the opening of a preliminary investigation. Without prejudging their effectiveness and their thoroughness (see paragraphs 210-23 below), it should be observed that these measures appear appropriate and apt, in principle, to establish the facts and identify and punish those responsible. Depending on their findings, these investigations were capable of leading to the opening of criminal proceedings against individuals suspected of committing acts of violence or sexual abuse against the applicants, but also to the adoption of other measures such as disciplinary action against any employees who may have failed in their duty to ensure the safety of the children in the orphanage, or appropriate measures in relation to children who may have committed punishable acts but were not criminally liable. The Court will therefore examine whether the investigations carried out were sufficiently effective from the standpoint of Article 3 of the Convention.", "203. With regard, firstly, to the promptness and speediness expected of the authorities, the Court notes that an initial inspection ordered by the SACP was carried out at the orphanage as early as Monday 14 January 2013, that is, on the first working day following the Bulgarian press coverage of the article in L’Espresso. It observes in that connection that the informal contacts between the journalist from the Italian weekly magazine and an unidentified police officer (see paragraph 77 above) do not provide sufficient evidence that the applicants’ allegations had been brought to the authorities’ attention for the purposes of the Court’s case-law. Admittedly, the applicants’ father had written to the SACP as early as 16 November 2012 and the Nadja Centre had informed the SACP on 20 November 2012 of the father’s phone call. However, the Court notes that those messages did not mention the children’s names or the name of the orphanage in question and that the father’s message did not contain any specific allegations (see paragraphs 42-44 above). It is true that the SACP was empowered to carry out checks and in fact it took some steps to that end; however, these had not yet produced results by the time the article appeared in L’Espresso. In these circumstances, it seems difficult to criticise the authorities for the fact that a few weeks elapsed before an inspection was carried out.", "204. The Court also notes that the SACP informed the prosecuting authorities swiftly of the disclosures made by the Italian weekly magazine and the findings of its first inspection. After receiving new and more specific evidence from the Milan public prosecutor’s office in January 2013, this time disclosing the names of individuals possibly implicated in the alleged abuse, the Veliko Tarnovo prosecutor’s office quickly ordered the opening of a police investigation and further checks by the child protection services. The Court considers that all these investigative measures were taken within a reasonable time given the circumstances of the case, bearing in mind, in particular, the longer time needed in an international cooperation context for information to be sent between the various services involved and for documents to be translated. The two cases opened by the Bulgarian prosecuting authorities were completed within a matter of months, in June and November 2013 respectively, and led the authorities to conclude that the evidence obtained did not constitute grounds for instituting criminal proceedings.", "205. It is true that longer periods of time elapsed subsequently before the findings of the investigation were sent to the Italian authorities and the applicants’ parents. Nevertheless, the Court considers that these periods did not compromise the effectiveness of the investigation, which was completed in 2013 (see paragraphs 100-02 above).", "206. In view of the above, the Court considers that there is no reason to call into question the promptness and expedition with which the Bulgarian authorities acted.", "207. As to the applicants’ claim that the SACP lacked independence and objectivity, the Court observes that the SACP is an administrative authority specialised in child protection, empowered to monitor compliance with the regulations applicable in children’s residential facilities, to identify possible shortcomings in the arrangements to ensure the safety and care of those children, and to take steps to remedy such shortcomings. The Court notes that neither the SACP nor its employees were implicated in the case and, moreover, that there is no evidence in the case file capable of casting doubt on their independence. As to the SACP’s alleged lack of objectivity, the Court will address this issue below (see paragraph 224).", "208. The applicants also claimed that the Bulgarian authorities had not kept their legal representatives adequately informed of the progress of the investigation. The Court observes in that connection that Article 31 § 1 (a), (c) and (d) of the Lanzarote Convention lays down a requirement to inform victims of their rights and the services at their disposal and, unless they do not wish to receive such information, of the progress of the proceedings and their right to be heard, while providing them, where necessary, with appropriate support services (see paragraph 127 above). It notes that in the present case the applicants’ parents did not lodge a formal complaint in Bulgaria and did not contact the prosecuting authorities in charge of the criminal investigation, which was instituted in response to the SACP’s reports despite the absence of a formal complaint, in line with the recommendations of the Lanzarote Convention. However, even though the applicants’ parents did not seek to be involved in the investigation, the Court finds it regrettable that the Bulgarian authorities did not attempt to contact them in order to provide them with the necessary information and support. Although the parents were indeed informed through the Italian authorities of the outcome of the criminal investigation (see paragraphs 100 ‑ 02 above), the fact that they were not provided with information and support in good time prevented them from taking an active part in the various proceedings, with the result that they were unable to lodge an appeal until long after the investigations had been concluded (see paragraphs 104 ‑ 09 above).", "209. In so far as the applicants complained that the authorities had disclosed their names to the press, the Court notes that they did not submit a separate complaint in this regard, notably under Article 8 of the Convention, but instead maintained that this circumstance constituted an aspect of the ineffectiveness, as they saw it, of the investigation. In that regard, the Court does not have any information in its possession to indicate that the investigating authorities were responsible for such a disclosure or that it undermined the effectiveness of the investigation. Moreover, it observes that the SACP claimed to have taken certain measures in response to the complaint made by the applicants’ parents (see paragraph 64 above).", "210. As to the thoroughness of the investigation, the Court reiterates at the outset that the procedural obligation to conduct an effective investigation is an obligation not of result but of means. Accordingly, the sole fact that the investigations in the present case did not result in specific persons being held criminally or otherwise liable is not sufficient to cast doubt on their effectiveness (see A and B v. Croatia, cited above, §§ 110 and 129, and M.P. and Others v. Bulgaria, no. 22457/08, § 111, 15 November 2011).", "211. It observes in this connection that the competent domestic authorities took a number of investigative measures. In the course of the first inspection, carried out in January 2013 following the press disclosures concerning the case and the identification of the applicants, the child protection services carried out on ‑ site checks to verify the proper running of the orphanage and, according to the reports drawn up by the investigators in that regard, consulted the files, including the medical records, of the applicants and the other children who had lived there during the period in question. They interviewed the director of the orphanage, the other members of staff, the general practitioner and the mayor of the municipality, who was responsible for the running of the orphanage. They also interviewed the children living in the orphanage, conducting interviews – albeit in a format that was not adapted to the children’s age and level of maturity and without video-recording them – and asking the older children to complete an anonymous questionnaire (see, as regards in particular the need to conduct interviews with children in premises suitable for this purpose and to videotape their statements, Article 35 §§ 1 and 2 of the Lanzarote Convention, cited at paragraph 127 above). During the second set of inquiries, conducted in February 2013 by a team of experts from the different administrative authorities concerned and the police following receipt of the more detailed information sent by the Milan public prosecutor’s office, further documentary checks were carried out and several of the persons concerned were interviewed. In particular, the police questioned various men who might have been the alleged perpetrators named by the applicants and some of whom, like the driver Da., the caretaker K. and the heating technician I., were employees of the orphanage, while others, like the photographer D. and the electrician N., worked there occasionally. Interviews were also conducted with four children mentioned by the applicants who still lived in the orphanage, although, again, their statements were not video-recorded and the child B. had to be interviewed a second time by the police (see paragraphs 68 and 72 above, and Article 35 §§ 1 and 2 of the Lanzarote Convention).", "212. The Court further notes that the authorities apparently neglected to pursue some lines of inquiry which might have proved relevant in the circumstances of the case, and to take certain investigative measures.", "213. It reiterates in that connection that the authorities’ obligation to conduct a sufficiently thorough investigation is triggered as soon as they receive arguable allegations of sexual abuse. This obligation cannot be limited to responding to any requests made by the victim or leaving it to the initiative of the victim to take responsibility for the conduct of any investigatory procedures (see S.M. v. Croatia, cited above, § 314, and Y v. Bulgaria, cited above, § 93; see also S.Z. v. Bulgaria, cited above, § 50, in which the Court criticised the authorities for not following certain lines of inquiry, even though the applicant had not challenged an order discontinuing the proceedings in part, and M. and Others v. Italy and Bulgaria, no. 40020/03, § 104, 31 July 2012, in which the Court identified some witnesses whom the authorities should have questioned, although the issue had not been raised in the domestic proceedings).", "214. Similarly, it should be emphasised that other international instruments such as the Convention on the Rights of the Child and the Lanzarote Convention have incorporated the standards of the Court’s case ‑ law in relation to violence against children, particularly as regards the procedural obligation to conduct an effective investigation (see Article 19 § 2 of the Convention on the Rights of the Child as interpreted by the Committee on the Rights of the Child, paragraphs 124-26 above, and also Articles 12-14 and 30-38 of the Lanzarote Convention read in conjunction with the Explanatory Report on that Convention, paragraphs 127-28 above). Under the terms of those instruments, whose applicability ratione temporis to the investigations in the present case has not been disputed (see paragraph 163 above), States are required to take the appropriate legislative and other measures to provide the necessary support for the child and those who have the care of the child, for the purposes of reporting, identification and investigation (Article 19 of the Convention on the Rights of the Child), with a view to assisting and advising them (Articles 11-14 of the Lanzarote Convention) while protecting their anonymity (Article 13 of the Lanzarote Convention, which also refers to reporting by means of confidential telephone and Internet helplines). The aim of these provisions is to ensure that investigations, while securing the defence rights of the accused, are conducted in the child’s best interests (Article 30 §§ 1, 4 and 5 of the Lanzarote Convention). The Lanzarote Convention also stipulates the need to enable the children concerned “to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered” (Article 31 § 1 (c) of the Lanzarote Convention), including by allowing them to be accompanied by their legal representative. In order to keep the number of interviews to a minimum and thus avoid further trauma, the Lanzarote Convention also provides for the use of video-recording and recommends that such recordings should be accepted as evidence (Article 35).", "215. In the present case the Court notes that the applicants’ accounts, as obtained and recorded by the psychologists from the RTC with the help of the applicants’ father, and the accounts they subsequently gave to the Italian public prosecutor for minors, which were also recorded on DVD, were deemed credible by the Italian authorities on the basis of the findings made by specialists, contained some precise details, and named individuals as the perpetrators of the alleged abuse. Most of the available documents were transmitted progressively to the Bulgarian authorities in the context of several requests for the opening of criminal proceedings made by the Milan public prosecutor via diplomatic channels and later by the Italian Ministry of Justice and the CAI (see paragraphs 62, 65 and 97 above). If the Bulgarian authorities had doubts as to the credibility of those allegations, in particular on account of certain contradictions observed in the applicants’ successive accounts or the possibility that their parents had influenced them, they could have attempted to clarify the facts by lodging a request to interview the applicants and their parents (for a similar situation, see G.U. v. Turkey, no. 16143/10, § 71, 18 October 2016). This would have made it possible to assess the credibility of the applicants’ allegations and if necessary to obtain further details concerning some of them. As professionals who had heard the children’s statements, the various psychologists who had spoken with the applicants in Italy would also have been in a position to provide relevant information.", "216. It is true that it might not have been advisable for the Bulgarian authorities to interview the applicants – an option left open by the Italian prosecutor, who had advised against questioning the applicants further in view of the fact that the Bulgarian authorities might wish to interview them (see paragraph 92 above) – given the risk of exacerbating whatever trauma the applicants may have suffered, the risk that the measure would prove unsuccessful in view of the time that had passed since their initial disclosures, and the possibility that their accounts would be tainted by overlapping memories or outside influences. Nevertheless, the Court considers that in these circumstances the Bulgarian authorities should have assessed the need to request such interviews. The decisions given by the prosecuting authorities do not, however, contain any reasoning in this regard and the possibility of questioning the applicants appears not to have been considered, presumably for the sole reason that they were not living in Bulgaria. The Court observes in that regard that Article 38 § 2 of the Lanzarote Convention provides that victims of alleged abuse may make a complaint before the competent authorities of their State of residence and cannot be required to travel abroad. Article 35 of that Convention, for its part, provides that all interviews with the child should as far as possible be conducted by the same person and that, where possible, audiovisual recordings should be used in evidence. Hence, in the instant case the Bulgarian authorities, guided by the principles set out in the international instruments, could have put measures in place to assist and support the applicants in their dual capacity as victims and witnesses, and could have travelled to Italy in the context of mutual legal assistance or requested the Italian authorities to interview the applicants again.", "217. The Court reiterates that, according to its case-law, in transnational cases the procedural obligation to investigate may entail an obligation to seek the cooperation of other States for the purposes of investigation and prosecution (see paragraph 191 above). The possibility of recourse to international cooperation for the purposes of investigating child sexual abuse is also expressly provided for by Article 38 of the Lanzarote Convention (see paragraph 127 above). In the present case, although the Milan public prosecutor declined jurisdiction on the grounds that there was an insufficient jurisdictional link with Italy in respect of the facts, it would have been possible for the applicants to be interviewed under the judicial cooperation mechanisms existing within the European Union in particular (see paragraph 137 above).", "218. Even if they had not sought to interview the applicants directly, the Bulgarian authorities could at least have requested from their Italian counterparts the video-recordings made during the applicants’ conversations with the psychologists from the RTC and their interviews with the public prosecutor for minors (see paragraphs 16 and 82 above). Because of this omission in the investigation, which could very easily have been avoided, the Bulgarian authorities were not in a position to request professionals “trained for this purpose” to view the audiovisual material and assess the credibility of the accounts given (see Article 34 § 1 and Article 35 § 1 (c) of the Lanzarote Convention).", "219. Similarly, as the applicants did not produce medical certificates, the Bulgarian authorities could, again in the context of international judicial cooperation, have requested that they undergo a medical examination which would have enabled certain possibilities to be confirmed or ruled out, in particular the first applicant’s allegations of rape.", "220. The Court further notes that the applicants’ accounts and the evidence furnished by their parents also contained information concerning other children who had allegedly been victims of abuse and children alleged to have committed abuse. In that connection it observes that even if it was not possible to institute criminal proceedings against children under the age of criminal responsibility, some of the acts described by the applicants as having been perpetrated by other children amounted to ill ‑ treatment within the meaning of Article 3 of the Convention and violence within the meaning of Article 19 of the Convention on the Rights of the Child (see paragraph 124 above); hence, the authorities were bound by their procedural obligation to shed light on the facts alleged by the applicants. However, despite these reports, the investigations were limited to interviewing and issuing questionnaires to a few children still living in the orphanage, in an environment that was liable to influence their answers (as regards the conditions in which those interviews took place, see paragraph 211 above). Indeed, the Court notes that the Bulgarian authorities did not attempt to interview all of the children named by the applicants who had left the orphanage in the meantime (see, for instance, paragraphs 25 and 28 in fine above), whether directly or, if necessary, through recourse to international judicial cooperation mechanisms.", "221. Furthermore, in view of the nature and seriousness of the alleged abuse, and as suggested by the applicants, investigative measures of a more covert nature such as surveillance of the perimeter of the orphanage, telephone tapping or the interception of telephone and electronic messages, as well as the use of undercover agents, should have been considered. Covert operations of this kind are expressly provided for in Article 30 § 5 of the Lanzarote Convention and are widely used across Europe in investigations concerning child abuse. In that regard the Court takes note of the Government’s argument that such measures were liable to infringe the right to privacy of the persons concerned and required judicial authorisation, based on the existence of credible evidence that an offence had been committed. It reiterates that considerations relating to compliance with the guarantees contained in Article 8 of the Convention may legitimately place restraints on the scope of investigative action (see Đorđević, cited above, § 139). Nevertheless, in the present case, such measures appear appropriate and proportionate, given the applicants’ allegations that an organised ring was involved and the fact that identifiable individuals had been named. Measures of this kind could have been implemented progressively, beginning with those having the least impact on individuals’ private lives, such as external surveillance of the entrances to and exits from the orphanage, and moving on, if necessary and on the basis of the relevant judicial authorisation, to more invasive measures such as telephone tapping, so as to ensure respect for the Article 8 rights of the individuals concerned, which must also be taken into account.", "222. Although the Court cannot speculate as to the progress and outcome of the investigation had it been conducted differently, it nevertheless regrets the fact that, following the email sent by the applicants’ father to the SACP and the report made by the Nadja Centre in November 2012, the SACP merely sent the father a letter, written in Bulgarian, requesting further information (see paragraphs 42-44 above). It observes that the Lanzarote Convention encourages the use of dedicated Internet or telephone helplines as a means of reporting abuse, and does not make the opening of an investigation conditional on the victims’ statements. In the circumstances of the present case it was open to the SACP, within a framework guaranteeing anonymity to the potential victims, to request all the necessary details from the Nadja Centre, which was in contact with Telefono Azzurro; this would have made it possible to identify the orphanage in question and carry out covert investigative measures even before publication of the L’Espresso article in January 2013. While it is true, as pointed out by the Government, that the article in L’Espresso reported on in the Bulgarian press may have alerted the possible perpetrators of the abuse, the Court considers that the very fact of its publication may conceivably have prompted them to contact each other by telephone or via messaging, a possibility which serves to demonstrate the usefulness of such investigative measures.", "223. It should also be observed that, despite the applicants’ allegations that the photographer D. had taken photographs and made videos, the investigators did not consider searching his studio, if necessary with the relevant court order, and seizing the media on which such images might have been stored. More generally, the seizure of telephones, computers, cameras, video-cameras or other media used by the persons specifically mentioned in the lists drawn up by the applicants’ father and sent to the Bulgarian authorities (see paragraphs 65 and 97 above) might have made it possible, if not to obtain proof of the abuse to which the applicants had allegedly been subjected several months previously, then at least to obtain evidence concerning similar abuse of other children.", "224. The Court also notes that, despite the fact that three investigations were opened following the publication of the press articles and the requests from the Italian authorities, the Bulgarian authorities confined their efforts to questioning the people present in the orphanage or in the vicinity, and closed the case on the sole basis of that investigative method, which was reiterated in different forms in each of the three investigations. In that connection the Court considers it unacceptable that even before the findings of the SACP’s first inspection of the orphanage on 14 and 15 January 2013 – which was very limited in terms of the investigative acts carried out – had been recorded in a written report and notified to the judicial authority, the President of the SACP, speaking on television, accused the applicants’ parents of slander, manipulation and inadequate parenting (see paragraph 58 above). A few days later, when the outcome of the criminal investigation was still not known, a group of MPs who visited the orphanage adopted a similar attitude (see paragraph 59 above). Such statements inevitably undermine the objectivity – and hence the credibility – of the inquiries conducted by the SACP and of the institution itself (see paragraph 207 above).", "225. It is of course undeniable that the Bulgarian authorities, by conducting the three investigations in question, formally responded to the requests of the Italian authorities and, indirectly, to those of the applicants’ parents. However, the Court would stress that, from the first statements made by the President of the SACP on 16 January 2013 until the final order issued by the public prosecutor’s office at the Supreme Court of Cassation on 27 January 2016 following communication of the present application by the Court (see paragraph 111 above), the reasons given for the authorities’ decisions are indicative of the limited nature of the investigations carried out.", "226. Thus, the first investigation was closed on the sole basis of the SACP’s report (see paragraphs 54 and 60 above). In the second and third investigations, the authorities, without having heard evidence from the applicants directly or even having viewed the video-recordings, attached decisive weight to the explanations offered by the persons who had been questioned and to the contradictions in the applicants’ remarks, particularly on the subject of the names and roles of the individuals they had named, although some of these inconsistencies, notably with regard to the name E., were easily explained (see paragraphs 32, 74 and 105-09 above). The final order issued on 27 January 2016 by the highest-ranking prosecutor’s office posited that the applicants had made allegations of abuse because they “[had been] fearful of being rejected by their adoptive parents, who disapproved strongly of their immoral behaviour ... [and had] sought to inspire pity ... by relating incidents that had not actually occurred in which they were the victims of crimes”. However, that order – which appears to have been based on the statement made by the President of the SACP a few hours after the commencement of the investigations three years previously (see paragraphs 207 and 224 above) – gave no details as to the factual circumstances on which these conclusions were based.", "227. In the Court’s view, an analysis of the information gathered and of the reasons given for the decisions reveals shortcomings which were liable to impair the effectiveness of the investigation in the present case. The reasons given do not appear to have resulted from a careful study of the evidence obtained and appear to show that, rather than clarifying all the relevant facts, the investigating authorities sought to establish that the applicants’ allegations were false by highlighting the inaccuracies which they contained, in particular regarding the name of the director and the fact that an individual named N. had not been employed in the orphanage but had worked as an outside contractor.", "228. In the Court’s view, all these considerations suggest that the investigating authorities, who did not make use, in particular, of the available investigation and international cooperation mechanisms, did not take all reasonable measures to shed light on the facts of the present case and did not undertake a full and careful analysis of the evidence before them. The omissions observed appear sufficiently serious for it to be considered that the investigation carried out was not effective for the purposes of Article 3 of the Convention, interpreted in the light of the other applicable international instruments and in particular the Lanzarote Convention. It follows that there has been a violation of the procedural limb of Article 3.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "229. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "230. The applicants claimed 1,600,000 euros (EUR) each in respect of non-pecuniary damage. The Government considered the applicants’ claims excessive and asked the Court to reject them.", "231. The Court considers that the applicants have suffered non ‑ pecuniary damage as a result of the procedural violation of Article 3 of the Convention found in the present case. Having regard to the circumstances of the case, it awards each of the applicants EUR 12,000 under this head.", "Costs and expenses", "232. As the applicants did not submit a claim for reimbursement of their costs and expenses, no award is to be made under that head.", "Default interest", "233. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born on 1 January 2004 and lives in Birmingham.", "Background to the case", "7. The applicant referred to the report by the Défenseur des droits under the title “Displaced persons and fundamental rights: the situation on the territory of Calais”, published on 6 October 2015.", "8. The report showed that for several years many individuals wishing to seek the protection of the United Kingdom had congregated in the Calais area.", "9. A reception centre had been opened near Calais, at Sangatte, in 1999. It had been closed, however, in 2002 and according to the Défenseur des droits this had led to the dispersion of the migrants over a wider area and to the development of makeshift camps which had become known as the “jungle”.", "10. A number of operations aimed at clearing and demolishing the makeshift camps had been carried out by the authorities. The Défenseur des droits thus noted that, for a long time, the authorities’ wish not to create any focal points around Calais had led to an increase in evictions. However, in March 2015 the authorities had opened a day reception centre, the “Jules Ferry Centre”, outside the town. Under the management of an association commissioned by the authorities, the centre’s main task was to serve about 2,500 meals per day to the migrants and to provide them with facilities to charge their mobile telephones and to wash their laundry, as well as placing sixty shower units and thirty toilets at their disposal. It also allowed them access to nursing care for two hours per day on weekdays and included a shelter for women and children. A new “jungle” comprising several thousand migrants had quickly emerged near the centre, on a piece of land commonly known as “ la lande ” (the heath), some of which had been made available to the State by the municipality of Calais.", "11. The report of the Défenseur des droits impugned the living conditions prevailing on the heath and the ensuing violations of fundamental rights, in particular with regard to unaccompanied minors.", "12. Describing the heath area as a “shantytown”, he reported that the majority of migrants were forced to live in “inhumane conditions”. He highlighted their “extremely precarious” living conditions: apart from the hundred women and children who took shelter at night in the Jules Ferry Centre, the vast majority of the migrants lived in cramped conditions, sleeping in rudimentary tents and shelters (made of planks or plastic tarpaulins), some without any protection at all. He further noted that the lack of infrastructure contributed to the hostile environment and the squalid living conditions: 2,500 meals were distributed only once a day, even though more than 3,500 people were living on the heath, in poor material conditions (a 500-metre queue outdoors, long waiting times without any guarantee of a meal, police surveillance and insufficient sheltered eating places). Apart from the taps and showers at the Jules Ferry Centre, which was open only from 12 noon to 7 pm, there were just three water taps on the heath; the waste collection facilities were insufficient and represented a major health risk. The report also mentioned the migrants’ state of physical and mental exhaustion, pointing out that, after travelling for several months or years, they were forced to adopt a way of life that was “more like a survival experiment”. They were showing signs of conditions that were characteristic of people in situations of very serious instability, combined with disorders specific to migrants and were suffering from post-traumatic syndromes linked to police violence or pressure. The report added that there was insufficient medical care available to cater for all the health needs.", "13. The report of the Défenseur des droits pointed out that the many minors present on the heath were thus living in “deplorable material conditions” and were frequently exposed to danger. He criticised the lack of educational facilities and the saturation and inadequacy of the protection offered to minors. In the specific case of unaccompanied foreign minors, he noted that there were four rooms in a children’s home, run as a social facility, for the emergency accommodation of children under fifteen years of age for a maximum of eight days, pending the examination of their situation and their orientation to the most appropriate placement. However, he considered this system to be unsuitable, as the minors concerned often refused to go to other places because of their distance from the heath, whilst they still wanted to reach England. He made the same observation with regard to unaccompanied foreign minors over fifteen years of age, their accommodation being provided for in a centre catering for thirty, located 45 km away from Calais. The report also pointed out that the unaccompanied foreign minors without supervision were left to their own devices, with the development of risky behaviour among teenagers that was mainly linked to increased alcohol consumption.", "Decisions of 2 and 23 November 2015", "14. In a decision of 2 November 2015 the urgent applications judge of the Lille Administrative Court, hearing a case under Article L. 521-2 of the Code of Administrative Justice (urgent applications for the protection of a fundamental freedom), brought in particular by non-governmental organisations, ordered the prefect of the Pas-de-Calais département to proceed, within forty-eight hours, with the enumeration of unaccompanied minors in distress and to arrange with the authorities of that département for their placement. The judge also ordered the prefect, together with the municipality of Calais, to set up on the site ten additional water access points and fifty pit or watertight latrines, to introduce a waste collection system with the installation of large-capacity mobile refuse containers or additional rubbish bins, to clean the site and to clear access routes for the emergency services.", "15. An appeal against this decision by the Ministry of the Interior was dismissed on 23 November 2015 by a decision of the urgent applications judge of the Conseil d’État, based on the following reasoning:", "“... 6. ... it is not seriously disputed that, despite major actions by the public authorities, the current conditions of accommodation, food, access to water, sanitation and safety of the population living on the heath, which is home to approximately 6,000 people, including 300 women and 50 children, as shown by the investigation and the numerous documents in the file, especially the report of the Défenseur des droits drafted in October 2015, reveal a serious emergency situation.", "... 10. ... while the investigation has shown that the Jules Ferry Centre organises only one distribution of 2,500 meals per day, between 3 pm and 5.30 pm, when the population on the heath is 6,000, it is not disputed that the meals served are designed to provide the necessary number of daily calories, that many migrants provide for their own food needs either through the on-site associations or by their own means, and it has not been established that the migrants are suffering from malnutrition; .... thus, it does not appear that a grave and serious deficiency can, on this point, be attributed to the public authorities.", "11. ... however, ... the investigation has revealed, first, that the Jules Ferry Centre makes available to the migrants, from 10.30 am to 7.30 pm, only four water access points, sixty showers, fifty toilets, of which ten are for women, and washbasins; ... moreover, on the heath can be found only four water access points, three of which have five taps, and sixty-six latrines, together with twenty-two other latrines that have only recently been added in compliance with the decision under appeal; ... the distance to access these facilities may be up to two kilometres; ... access to drinking water and toilets is, under these conditions, clearly insufficient.", "12. ... the investigation has also revealed that no rubbish collection is carried out within the site, that the five rubbish bins installed on the edge of the site are not used because of their distance, that the occupants of the site have created collection points in the form of holes dug one metre deep, in which the waste is burned, releasing fumes and unpleasant odours, that the site is overrun by rats and, finally, that neither waste water nor excrement from ‘rudimentary toilets’ is removed; and that, even though more rubbish bins have been added and additional collections made since the impugned decision, migrants living on the heath are thus exposed to high risks of poor sanitation.", "13. ... it has been established, lastly, that emergency, fire and rescue vehicles cannot circulate within the site in the absence of the development of any roadway, even a basic one, given the haphazard proliferation of tents and various shelters.", "14. ... the living conditions described above show that the public authorities’ response to the basic needs of migrants living on the site, with regard to their access to sanitation and drinking water, remains manifestly inadequate and reveals a deficiency of such a nature as to expose them, to a severe degree, to inhuman or degrading treatment, thus causing a serious and manifestly unlawful breach of a fundamental freedom. Consequently, the urgent applications judge of the Lille Administrative Court has rightly ordered the State, since the measures to be taken to deal with the massive influx of migrants from the whole of the national territory to the site of the heath exceed the general policing powers vested in the mayor of the municipality, and also – in so far as its intervention is required, in its capacity as owner of some of the buildings concerned and pursuant to its agreements with the State, to enable the implementation of the orders, the municipality of Calais – to set up on the heath ten additional water access points, each comprising five taps, fifty pit or watertight latrines given the sandy nature of the land on which the camp is situated, to introduce a waste collection system with the installation of large-capacity mobile refuse containers inside the site and/or additional rubbish bins, to clean up the site and, lastly, to create one or more access routes inside the camp for the emergency services and, where necessary, the removal of the refuse containers. The measures thus prescribed must start to be implemented within a period of eight days, subject to a penalty of 100 euros per day of delay in respect of each measure ...”", "16. The Government stated that the facilities and the health and safety measures ordered by the urgent applications judge had been fully implemented. The applicant pointed out that as a result of the general recommendation of 20 April 2016 by the Défenseur des droits (see paragraph 39 below) an enumeration of unaccompanied minors had been carried out from January 2016 onwards, but that it had not been followed by the effective protection of the individuals concerned. The same document showed that the Conseil général (local authority for the département ) had confined itself to organising outreach efforts to make contact with minors, but being conducted by under-trained individuals and without any translators, those efforts had not been sufficient to arrange for placements. He observed that, as a result, the context which had justified the intervention of the administrative judge for urgent applications in November 2015 had not changed in 2016; the number of unaccompanied foreign minors living on the heath in huts or tents had actually increased.", "Clearance of the Calais heath area", "17. On 12 February 2016 the prefect of Pas-de-Calais announced at a press conference that she had decided to order the clearance of the southern part of the heath area. On 19 February 2016, taking the view that “for reasons of security, health and human dignity, there [was] an urgent need to reduce the area of the ‘heath’ camp in order to limit its occupation to the northern zone, around the reception facilities organised by the State”, she issued an order requiring the “undocumented occupants” of the southern part of the heath to “leave and vacate it of all persons and property” by 23 February at 8 p.m. The order specified that, after this period, the eviction would be enforced, if necessary with police assistance.", "18. On 18 and 19 February 2016, migrants and non-governmental organisations filed applications with the Lille Administrative Court for the annulment of the above-mentioned decision and order. They also made an application to the urgent applications judge of that court under Article L. 521-1 of the Code of Administrative Justice (application for immediate suspension) for the suspension of the clearance decision. In particular, they argued that this measure infringed their right to housing as guaranteed by Article 8 of the Convention and Article 31 of the European Social Charter, together with their right to respect for their private life and the best interests of the child. They also argued that the measure was disproportionate given the number of people concerned and the lack of appropriate and sufficient social assistance measures, particularly in terms of relocation.", "19. In submissions registered on 23 February 2016 (not produced before the Court), the applicant and other occupants of the heath intervened in the proceedings before the urgent applications judge. It appears from the decision of 25 February 2016 (see paragraph 20 below) that they asked the judge to instruct the prefect of Pas-de-Calais to identify the minors present on the heath and to offer them appropriate accommodation, support and information on their rights, commensurate with their vulnerability and needs.", "20. On 25 February 2016 the urgent applications judge ordered the suspension of the clearance in so far as it would have resulted in the destruction of libraries, schools and places of worship that had been set up in the area to be vacated, pending a decision on the merits as to the legality of the measure. He dismissed the application for the remainder, together with the submissions from the third-party interveners.", "21. On 26 February 2016 the claimants appealed on points of law before the Conseil d’État. However, they withdrew their appeal on 13 April 2016, as the Conseil d’État had not ruled by that date, whereas the clearance of the southern zone, which had begun on 29 February 2016, had been completed on 16 March 2016.", "22. In a decision of 19 April 2016, the Conseil d’État, emphasising that the proceedings had been discontinued as a result of this withdrawal, took the view that there was no need to rule on the above-mentioned third-party submissions by the applicant and other occupants of the heath, as they had become devoid of purpose.", "23. The parties have not provided any information on the status of the proceedings on the merits before the Lille Administrative Court.", "24. The Government pointed out that the vast majority of the shelters and tents removed had already been abandoned. The few migrants who were still living there had been made aware of the clearance beforehand by the outreach efforts of the local Department of Social Cohesion, the French Immigration and Integration Office and two associations, and had gone of their own accord to take up the places available in the temporary reception centre for 1,500 recently opened on another part of the heath, or in one of the reception and orientation centres set up from October 2015 throughout France, or had opted for the tents made available by the civil protection authority. The Government added that the migrants concerned had not been prevented from retrieving personal belongings from their shelters.", "25. The Government also stated that social outreach campaigns had been conducted to identify minors and find alternative accommodation for them: either in the context of child welfare facilities, in Calais, in the Georges Brassens Hostel for minors under 15 years of age, and in Saint Omer, in the Young Refugees Hostel for minors of 15 and over; or in the temporary reception centre on the heath, where four 48-place containers had been reserved for minors; or in civil protection tents or in reception and orientation centres where specific places had been reserved for them.", "26. The northern zone of the Calais heath was cleared at the end of October 2016.", "27. In a document entitled “Observation report: clearance of camps and placement of former occupants; Calais – Stalingrad (Paris)”, dated 20 December 2016, the Défenseur des droits noted that the authorities welcomed the fact that they had conducted a large-scale humanitarian operation, taking to shelter several thousand people and more than 1,700 unaccompanied minors in Calais and Paris in just a few days, and stepping up calls for the UK authorities to take responsibility for receiving these young people. But he stated that he did not share this satisfaction and that he could not endorse a view of the situation which suggested that anything was better than keeping people in shantytowns, especially in the case of minors. He pointed out that clearance operations had to be anticipated, planned and coordinated in order to prevent them from further violating the fundamental rights of the migrants concerned. In particular, he submitted that the interests of minors had not been of primary concern in the operation. In his view, the solutions implemented by the authorities, even when they were purportedly humanitarian, were more influenced by considerations related to the control of migration flows than by the need to ensure respect for the fundamental rights of those concerned.", "The applicant’s situation", "28. The applicant stated that he had left Afghanistan at the end of August 2015 after his father’s disappearance in order to travel to the United Kingdom to seek asylum. In particular, he had crossed Iran, where he claimed to have been physically abused by people smugglers. He added that after arriving in France in September 2015 he had made his way to Calais following other migrants he had met on the journey, hoping to find a means of reaching the United Kingdom. He had settled in a hut in the same month in the southern part of the Calais heath. He pointed out that he had “come into contact” with non-governmental organisations, including the Calais Women and Children’s Centre and Cabane juridique.", "29. On 19 February 2016 Cabane juridique had lodged an application with the Youth Judge for his provisional placement. It had also requested the appointment of an ad hoc guardian to assist him in applying for asylum application. The same process was put in place for 300 unaccompanied foreign minors.", "30. In a decision of 19 February 2016, the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance, noting that the applicant had no legal representatives in France, appointed an ad hoc guardian “to take any steps in his interest”.", "31. In a decision of 22 February 2016, the same judge ordered that the applicant, “without family ties in France” should be temporarily placed in the care of the Child and Family Protection Department in Calais from 23 February 2016. Pointing out that his decision was automatically enforceable, on a provisional basis, pursuant to Article 514 of the Code of Civil Procedure, the judge emphasised as follows:", "“The minor is not accompanied by family members in France; he has hitherto been living in the Calais ‘jungle’; the prefecture has announced the clearance of that camp in the coming days; the minor is thus exposed to an even greater situation of danger; it is appropriate to place him in the care of the child welfare authority in order to take him to shelter with a view to his reunion with family members living in the United Kingdom within a period of one month.”", "32. The applicant stated that neither the Pas-de-Calais authorities nor the prefecture had acted to take him to shelter. Even though his hut had been demolished when the southern part of the heath was cleared, and he had lived through the operation, which had been particularly brutal, in an anxious and worried state, no alternative accommodation had been offered to him. In particular, the child welfare services had not invited him to go to a children’s home. He added that the reception facilities in the northern zone of the heath, for children accompanied by a parent and for women, had not been accessible to unaccompanied minors; consequently, like many occupants of the southern zone of the heath, he had been forced to take refuge in a “makeshift shelter” located in the northern zone. He pointed out that life in the northern zone was difficult; since the people displaced from the southern zone had gathered there, while others were already settled there, this had accentuated the overcrowding and significantly worsened the sanitary and living conditions.", "33. The Government stated that the child welfare services had been unable to implement the placement measure; they had prepared the placement but the applicant had not made contact with them, and neither his lawyer, nor his ad hoc guardian, nor the association following his case, had informed them of his whereabouts.", "34. During the week of 20 March 2016 the applicant left the heath and reached England by clandestine means. He was taken into care by the British child protection services. He now lives in a children’s home.", "35. On 8 April 2016, noting that the applicant “[had] fled and [had] given no further news”, the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance lifted the placement measure.", "RELEVANT DOMESTIC LAW AND PRACTICE", "36. Articles L. 112-3 and L. 112-4 of the Code on Social Action and Families read as follows:", "Article L. 112-3", "“Child protection seeks to guarantee due consideration of the fundamental needs of children, to support their physical, emotional, intellectual and social development and to preserve their health, safety, morality and education, ensuring respect for their rights.", "It encompasses preventive actions for the benefit of children and their parents, organising the identification of and response to situations of danger or risk of danger for children and the administrative and judicial decisions taken for their protection. Telephone helplines are to be set up within the relevant services.", "The implementation of those decisions must be tailored to each situation and based on objective observation through mandatory visits to the places where the children spend their time, in their presence, working with the family’s resources and the child’s environment. They will take account of any difficulties that the parents may be facing in the fulfilment of their educational responsibilities and will involve tailored support actions, ensuring if need be a partial or total placement of the child. In all cases, children must be associated with the decisions concerning them, according to the child’s degree of maturity.", "...", "Child protection also seeks to prevent any difficulties that may be encountered by minors who are temporarily or permanently deprived of the protection of their family and to ensure their placement.", "...”", "Article L. 112-4", "“The children’s interest and due regard for their fundamental, physical, intellectual, social and emotional needs, together with respect for their rights, must guide any decisions concerning them.”", "37. Article 375 of the Civil Code reads as follows:", "“If the health, safety or morality of a dependent minor are at risk, or if the conditions of his education or his physical, emotional, intellectual and social development are seriously endangered, measures of educational assistance may be judicially ordered at the request of the father and mother jointly, or of one of them, of the person or body to whom the child was entrusted or of the guardian, of the minor himself or of the Public Prosecutor’s office. In the cases where the Public Prosecutor’s office has been advised by the President of the conseil départemental, it shall verify that the situation of the minor falls within the scope of Article L. 226-4 of the Code on Social Action and Families. Exceptionally, the court may examine the case of its own motion. ...”", "RELEVANT INTERNATIONAL LAW", "38. Articles 2, 3, 20 and 22 of the Convention on the Rights of the Child of 20 November 1989 (ratified by France on 7 August 1990) read as follows:", "Article 2", "“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.", "2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.’", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”", "Article 20", "“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.", "2. States Parties shall in accordance with their national laws ensure alternative care for such a child.", "3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”", "Article 22", "“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.", "2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.”", "DOCUMENTS CONCERNING THE SITUATION IN THE CALAIS HEATH AREA AT THE MATERIAL TIME", "39. The situation of migrants in general and of unaccompanied minors in particular, in the Calais heath area, before, during and after the clearance of the southern zone, is described in a number of documents including the following:", "– the reports of the Défenseur des droits entitled “Displaced persons and fundamental rights: the situation on the territory of Calais” (6 October 2015, cited above) and “Observation report: clearance of camps and placement of former occupants; Calais – Stalingrad (Paris)” (20 December 2016, cited above), and his general recommendation under section 25 of the Law of 29 March 2011 (20 April 2016, cited above);", "– the opinion of the Commission nationale consultative des droits de l’homme (“CNCDH” – National Advisory Commission on Human Rights) “on the situation of migrants in Calais and its surroundings” (2 July 2015), its follow-up opinion “on the situation of migrants in Calais and its surroundings” (7 July 2016) and its statements on “the clearance of the Calais shantytown and its consequences: the case of minors” (8 November 2016) and “on the situation of unaccompanied minors placed in a CAOMI following the clearance of the shantytown in Calais” (26 July 2017);", "– the “Report of the fact-finding mission on the situation of migrants and refugees in Calais and Grande-Synthe, France” of the Special Representative of the Secretary General on migration and refugees (12 October 2016);", "– the report of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) “concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by France, Second Evaluation Round” (adopted 31 March 2017);", "– the document published by UNICEF entitled “Neither safe nor sound: investigation into unaccompanied minors in northern France” (June 2016)." ]

[ "THE LAW", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "40. The applicant complained that the French authorities had failed to fulfil their obligation to protect foreign unaccompanied minors who, like him, were living in the Calais heath area. He complained more specifically about the fact that the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016, ordering his temporary placement in facilities of the child welfare service had not been implemented. He relied on Article 3, Article 6 § 1 and Article 13 of the Convention, the first of which reads as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "41. Reiterating that it is master of the characterisation to be given in law to the facts of the case, and finding that these complaints converge, the Court finds it appropriate to examine the applicant’s allegations under Article 3 of the Convention alone (see, for example, Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 145, 19 December 2017; see also Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018). It will thus seek to ascertain whether the respondent State has failed in its obligations under that Article by not implementing the necessary means to enforce the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016 ordering the applicant’s temporary placement and thus failing to take him into shelter when he had spent several months in the Calais heath area.", "Admissibility", "42. The Government argued that the applicant had not exhausted domestic remedies. In their view he should have lodged an urgent application for the protection of a fundamental freedom ( référé-liberté under Article L. 251-2 of the Code of Administrative Justice) asking the judge to order the local authority ( conseil départemental ) to take him into shelter on the basis of his right to emergency accommodation.", "43. The applicant pointed out that the obligation to exhaust domestic remedies was confined to a normal use of effective remedies, merely to penalise the failure to make use of any essential course of action. He added, in particular, that he had availed himself of the “genuinely appropriate procedure” by applying to the Youth Judge to decide on his placement, emphasising that such a decision was in itself immediately enforceable.", "44. The Court notes that the States, such as the respondent State, which are parties to the Convention on the Rights of the Child, are required by Article 20 thereof to “ensure alternative care”, “in accordance with their national laws”, for any child who, within their jurisdiction, is “temporarily or permanently deprived of his or her family environment”; while Article 2 states that this obligation is irrespective of the child’s national origin (see paragraph 38 above). Moreover, it can be seen from the Court’s case-law that, as part of their positive obligations under Article 3 of the Convention, the States Parties are required to protect and take care of unaccompanied foreign minors (see paragraphs 70-71 below).", "45. The provision of protection and care to the applicant could thus be regarded as an automatic obligation imposed on the domestic authorities.", "46. Owing to the particularly difficult conditions in which he found himself, the applicant, through the non-governmental organisation Cabane juridique, lodged an application with the Youth Judge under Article 375 of the Civil Code seeking to be taken into care by the child welfare services. This provision authorises the judge to order educational assistance measures if the health, safety or morals of an unemancipated minor are in danger, or if the conditions of his or her education or physical, emotional, intellectual and social development are seriously compromised. The judge may in particular receive an application from the youth himself or from the public prosecutor’s office; he may also examine the matter of his own motion on an exceptional basis (see paragraph 37 above). Taking into account the applicant’s situation of danger and the need to take him into shelter, the Youth Judge granted the request by a decision of 22 February 2016, which was automatically enforceable on a provisional basis and against which no appeal was lodged (see paragraph 31 above). The authorities were required to enforce this decision, without any further proceedings being required under domestic law for this purpose. They could also be required to protect and take care of the applicant from the moment they became aware of his situation. In accordance with the principle of subsidiarity, the application to the Youth Judge gave the respondent State the opportunity to prevent or remedy the breach of the positive obligations that Article 3 of the Convention could impose on it on account of the minor’s situation. Thus, in the very particular circumstances of his case, the applicant did what could reasonably be expected of him for the purposes of Article 35 § 1 of the Convention.", "47. Accordingly, the objection is rejected.", "48. The Court notes, moreover, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsParties’ observations", "Parties’ observations", "Parties’ observations", "(a) The applicant", "49. The applicant pointed out that, in the Rahimi v. Greece judgment (no. 8687/08, 5 April 2011), the Court found that the failure of the national authorities to take care of an unaccompanied foreign minor constituted a breach of Article 3 of the Convention in so far as they had left him to fend for himself and in general he had been taken care of solely by local non ‑ governmental organisations. He further emphasised that the authorities were required to take account of the extreme vulnerability of such minors. He complained that the decision on his provisional placement of 22 February 2016 had not been enforced, stressing that he had never opposed its enforcement and had absolutely no objection to being taken into shelter. He considered more generally that the authorities should have gone to the “jungle” to provide him with basic material support and initiate welfare formalities that would enable him to be directed to facilities where he could be taken into shelter, such as the child welfare service’s accommodation. He pointed out that départements and the State had a particular obligation to protect unaccompanied minors and minors in situations of danger. He observed that the Government had not adduced any evidence to show that steps had been taken to trace him. He also rejected the Government’s argument that his lawyer or the associations following his case should have taken physical steps, in particular by taking him and the other minors concerned to the child welfare services. Pointing out that only the prefect and the local authority ( conseil départemental ) were responsible for the organisation of the reception and placement of unaccompanied foreign minors, he took the view that it would be legally erroneous and unacceptable to shift this burden to others, adding that his lawyer would not have had the material resources to take such action. The Rahimi judgment, cited above, showed that the obligation to take care of unaccompanied foreign minors did not fall on third parties but on the authorities, and on the latter alone.", "50. The applicant also criticised the State for proceeding with the demolition of the southern part of the “jungle” without having first taken into shelter the unaccompanied minors who had been living there. He had thus been deprived of shelter, when he was only twelve years old and the operation had taken place in mid-winter.", "51. The applicant adduced, inter alia, a report broadcast on the France 3 television news on 8 April 2016, showing that unaccompanied minors had seen their shelters demolished during the clearance of the southern part of the heath area without being informed of an alternative solution, and that several of them had been forced to settle in the northern part of the heath where many other people were already living and where they were confronted with particularly difficult living conditions. The report also showed that, in the aftermath of the clearance of the southern zone, in spite of the decisions of the urgent applications judge of November 2015 ordering the prefect to enumerate the unaccompanied foreign minors present on the site with a view to their placement (see paragraphs 14 and 15 above), the deputy prefect, who was interviewed in the report, did not have a list of their names. This showed, in the applicant’s submission, that no steps had been taken by the authorities to identify the unaccompanied minors who were the subject of a placement decision.", "52. The applicant also referred to a decision of the Immigration and Asylum Chamber of the Upper Tribunal of 29 January 2016, which noted the dangers that prevailed on the heath, including the exploitation of unaccompanied children. He further relied on the concluding observations of 23 February 2016 of the UN Committee on the Rights of the Child and on a report of 12 October 2016 of the Special Representative of the Council of Europe Secretary General on migration and refugees, which showed that the mechanisms for identifying, and for providing care and support to, unaccompanied foreign minors in Calais were inadequate. He also noted that the non-governmental organisations present on the heath had not been contacted by the authorities to seek a global solution for the unaccompanied minors.", "(b) The Government", "53. The Government submitted that the failure to comply with the protection measure ordered by the Youth Judge on 22 February 2016 could be attributed to the applicant’s conduct, which had allegedly prevented its implementation. Although the decision had been requested by the applicant, he had not appeared at the hearing. They emphasised that the child welfare service of the département had taken the necessary action. In that connection, the service had prepared a placement for the applicant (and for the other eleven minors concerned by a similar measure on the same day) but he had not turned up; and neither his ad hoc guardian, nor the associations that supported him, nor his lawyer, had taken him to that location or informed the service of his whereabouts. The child welfare service had then taken steps to trace the applicant on the heath. It had contacted the association which provided emergency shelter there on behalf of the département and to which the State had entrusted the task of enumerating unaccompanied minors ( France Terre d’Asile ), but it replied that it did not know the applicant.", "54. According to the Government, the fact that the applicant had not appeared at the hearing before the Youth Judge, that he had not kept in touch with his ad hoc guardian, his lawyer or the association following his case, that he had not appeared at the home designated for his placement, and that he had entered the United Kingdom in the week of 20 March – less than a month after his request for care – showed that he was not seeking long ‑ term shelter and care from the French authorities but had above all wished to travel to the United Kingdom.", "Observations of third-party interveners", "(a) Défenseur des droits", "55. The Défenseur des droits (Defender of rights) pointed out that this case was an illustration of the dramatic humanitarian situation in which displaced people found themselves in the Calais and Grande Synthe areas, caused in particular by the Franco-British agreements and the pitfalls of European migration policy. He stated that, following an in-depth investigation, on-site inspections and meetings with all stakeholders and his British counterpart, he had issued reports and decisions, and had made recommendations to the competent authorities specifically concerning the situation of unaccompanied minors, their reception and care – in particular the establishment of an unconditional shelter scheme on the heath – also monitoring their implementation. He added that to date their situation still remained a major concern for him.", "56. The Défenseur des droits referred to his report of October 2015, in which he had described the alarming living conditions of unaccompanied minors on the Calais heath and had taken the view that they substantiated a situation of danger which automatically imposed an obligation of protection on the authorities; he had also described the dangers to which these minors were exposed (violence, risk of trafficking and prostitution, risky behaviour such as alcohol abuse, and trauma related to living conditions and risky attempts to cross the sea to England), aggravated by the lack of regular and adequate medical follow-up. He pointed out that the French authorities were bound by both domestic and international law to shelter and take care of them (he referred in particular to Article 20 of the International Convention on the Rights of the Child, General Comment No. 6 of the UN Committee on the Rights of the Child, the Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006-XI) and Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13, 22 November 2016) judgments, Article 375 of the Civil Code and Article L. 112-3 of the Social Action and Family Code). Above all, the authorities had been required to enumerate the minors concerned and offer them appropriate protection, as indeed the Administrative Court had ordered them to do on 2 November 2015. Having been informed that 316 unaccompanied minors had been identified on the heath as of 5 January 2016, the Défenseur des droits expressed concern about the lack of information regarding the identification and monitoring of 77 of them. He added that, on 23 February 2016, the United Nations Committee on the Rights of the Child had expressed concern about the precarious situation of children, the authorities’ refusal to register them and the insufficient resources allocated to infrastructure and services. He also emphasised that, when an unaccompanied minor was entrusted to the child protection services by judicial decision, the failure of the authorities to implement that decision deprived the right to protection of its substance.", "57. The Défenseur des droits further noted that the right to education of unaccompanied minors living on the Calais heath was far from being guaranteed, that few of them had been informed of their rights or supported in their efforts to be reunited with their families, efforts which were complicated by the fact that before they could submit asylum applications it was necessary in practice for them first to have been taken into the care of the child welfare service or even to have been placed under guardianship.", "58. The Défenseur des droits indicated that following the clearance of the southern part of the heath in February 2016, associations had deplored the disappearance of around 100 unaccompanied minors. The living conditions of those who were still there remained worrying: as the authorities had not sufficiently anticipated the consequences of this operation for the situation of unaccompanied minors, many of them, being homeless, had been forced to live in even more extreme squalor. On 20 April 2016 he had recommended the implementation of regular and intensive socio-educational outreach by specially trained social workers, with a view to establishing a relationship of trust and allowing the stabilisation of unaccompanied minors on the site and effective care, stressing that the minor’s acceptance of the protection measure should be sought but should not constitute a precondition for any attempt to find a solution. In his view, the fact that some did not request child protection and did not support the proposed measures could not justify the inaction on the part of the public authorities, which had an obligation to ensure their protection and to consider how to achieve it, taking into account the specific circumstances of the group concerned.", "59. The Défenseur des droits additionally observed that, in spite of insisting that the authorities should act on this matter, the unconditional and adapted sheltering of unaccompanied minors that he had advocated had never taken place, as the facilities provided by the authorities – among them a reception centre 45 km from Calais – were ineffective. He pointed out that the specificity of these minors – their wish to go to England and refusal to settle in France – should have been taken into account before any considerations about their care. In this connection he had, in particular, recommended that an accommodation centre and a daytime reception facility be opened near the heath.", "(b) Commission nationale consultative des droits de l’homme", "60. The Commission nationale consultative des droits de l’homme (“CNCDH” – National Advisory Commission on Human Rights), which stated that it had conducted three fact-finding missions to Calais in 2015 and 2016, referred to the opinions and statements that it had issued: opinion “on the situation of unaccompanied foreign minors in France; taking stock one year after the circular of 31 May 2013 on the arrangements for taking care of unaccompanied foreign youths (national system for taking to shelter, assessment and orientation)” (26 June 2014); opinion “on the situation of migrants in Calais and its surroundings” (2 July 2015); opinion on the situation of migrants in Grande-Synthe (26 May 2016); opinion “on the situation of migrants in Calais and its surroundings” (7 July 2016); statements on “the clearance of the Calais shantytown and its consequences: the case of minors” (adopted 8 November 2016); statement “on the situation of unaccompanied minors placed in migrant reception and orientation centres” (26 January 2017); and a declaration on the treatment of migrants (17 October 2017).", "61. The CNCDH highlighted the worrying situation in which many unaccompanied foreign minors found themselves during the period when the applicant was in the Calais area. It observed that in France child protection fell within the remit of the départements, while the State was responsible for migration matters, and that, in the case of unaccompanied foreign minors, who did not have a specific status, this led to an “institutional ping-pong”, preventing a coherent understanding of their specificity and particular vulnerability, and neglecting the best interests of the child, whereas they were above all to be seen as children rather than aliens. Their access to rights and justice was limited, in particular as regards their access to the asylum procedure: an ad hoc guardian could only be appointed to represent them once they had taken steps to benefit from protection, while some steps (including withdrawal of the asylum application) could only be taken after such appointment. This procedure, in addition to the steps to be taken under the head of child protection, was complex and slow. According to the CNCDH, the difficulties encountered by unaccompanied foreign minors in the context of asylum applications or their administrative situation revealed a security logic that led to the minor being regarded first and foremost as a foreigner, while a child in danger had be covered by a protection measure regardless of his or her personal status and situation in terms of the rules on entry and residence.", "62. The CNCDH also took the view that the State’s shortcomings in the care of unaccompanied foreign minors in Calais had been numerous and systematic. First, court decisions had not been enforced, in particular placement decisions. Secondly, the reception facilities were inadequate, so that between 2014 and the end of 2016 several hundred unaccompanied foreign minors had been living in appalling conditions in the Calais shantytown, characterised by squalor, deprivation and insecurity. Thirdly, their protection against the risks of trafficking and exploitation was inadequate. Fourthly, their rights to education and health were insufficiently guaranteed: even in cases of emergency temporary shelter, schooling or training had rarely been put in place; extreme and inhumane living conditions on the heath were triggering or aggravating disease, as well as traumas linked to their chaotic migration history, conditions of anxiety and depression and impaired mental health due to exhaustion and survival needs. On this last point, the CNCDH added that the significant increase in population density in the northern part of the camp caused by the clearance of the southern zone in February 2015 had considerably increased the risk of contagion of infectious diseases. The State’s shortcomings and failures were all the more unjustifiable as it had been more than twenty years since the Calais area had first been confronted with a large number of migrants wishing to travel to the United Kingdom, and therefore the situation was not exceptional.", "(c) Groupe d’information et de soutien des immigrés", "63. The non-governmental organisation Groupe d’information et de soutien des immigrés (“GISTI” – Migrant Information and Support Group) submitted that the material living conditions of unaccompanied minors in the heath area of Calais had led to systematic violations of Article 3 of the Convention, given their particular vulnerability. The chronic failure to provide them with care, before, during and after the clearance of the southern zone had increased their vulnerability, and the authorities had not enforced decisions in their favour, whereas particular attention should have been paid to them because of their age and their particularly insecure situation. It referred to the observations by the Défenseur des droits since 2015 and by UNICEF in 2016 regarding the poor living conditions of unaccompanied minors on the heath, the dangers to which they were exposed, the State’s failure in its duty to protect and take care of them, the lack of legal assistance and the ineffectiveness of the procedures initiated for family reunion. It further pointed out that in law, the fact that an individual was a minor took precedence over his or her status as an alien.", "64. GISTI denounced the shortcomings of the French asylum procedure and the failure to provide information to minors in this connection, noting that this had been observed by the Immigration and Asylum Chamber of the UK’s Upper Tribunal in its decision of 29 January 2016 (cited above) and by the Lille Administrative Court which, on 11 February 2016, had compelled the authorities to register applications from minors who had been refused by officials in charge of the relevant service.", "65. It further noted that, as a result of the clearance of the Calais heath area, a large number of unaccompanied foreign minors had been left homeless or had been inadequately or inappropriately provided for, their number having been estimated at 1,932 in October 2016.", "66. GISTI referred to the December 2016 report of the Défenseur des droits on the dismantling of the camps and the provision made for the displaced migrants. The report stated that the authorities had failed to take the necessary measures to protect unaccompanied minors, had allowed them to live in inhumane conditions and in situations of danger, and had not taken them to shelter or found placements for them prior to the clearance operation. The third party also noted that, in a decision of 26 June 2017, the urgent applications judge at the Lille Administrative Court had found that unaccompanied minors still present in the Calais area were very often exposed to inhuman and degrading treatment on account of the ineffectiveness of the identification and orientation measures put in place.", "(d) Cabane juridique", "67. The non-governmental organisation Cabane juridique, present in the heath area of Calais before and during the clearance operation, observed that in the years 2015 and 2016 the authorities had unduly decided not to introduce any arrangements in Calais for the care of unaccompanied foreign minors, in order to avoid a “pull factor”, or set up any shelters, so that minors would be encouraged to move away from the city rather than remaining in contact with the people smugglers.", "68. First of all, Cabane juridique deplored the inadequacies of the provisions for unaccompanied foreign minors from a quantitative standpoint. No accommodation had been provided in Calais and the facility set up to receive and support them was located in Saint-Omer, some 50 kilometres away, and as noted by the Défenseur des droits the outreach efforts in Calais were insufficient. While a temporary reception centre of 1,500 places had been set up in the northern part of the heath after the clearance of the southern part, it was not open to unaccompanied minors. According to the third party, during the entire existence of the shantytown, no specific reception and care facilities for unaccompanied minors had existed in Calais, with the result that they had been forced to remain in makeshift shelters unless they pretended to be adults in order to be admitted to the temporary reception centre.", "69. Cabane juridique further denounced the insufficient provision for unaccompanied foreign minors in Calais from a qualitative standpoint, observing in particular that inadequate consideration had been given to their migration plans. It noted, for example, that until the end of February 2016, it had been very difficult for those wishing to join a family member in the United Kingdom to obtain even the registration of an asylum application for the purpose of implementing the family reunion procedure under the Dublin III Regulation; while applications could subsequently be lodged, they had been processed very slowly. Moreover, throughout the shantytown’s existence, the unaccompanied minors concerned had received very little information on how to travel legally to the United Kingdom. It was also because the authorities had not sufficiently taken into account the migration plans of unaccompanied minors that the accommodation system put in place had been shunned and misunderstood by the minors concerned and had thus been a failure.", "70. Cabane juridique further pointed out that, without an accommodation solution, unaccompanied foreign minors on the heath had been exposed to violence. About twenty of them had reported to it that they had been victims of violence. Referring to the above-mentioned UNICEF report, it alluded to mental health problems, sexual abuse, physical violence and cases of prostitution, trafficking and exploitation. It also referred to a police report which showed that between 1 and 21 February 2016, 103 tear gas grenades had been thrown in Calais against the migrants during particularly violent police operations, giving rise to almost daily clashes.", "71. The third party took the view that the State engaged its responsibility under Article 3 of the Convention whenever an unaccompanied minor was left homeless and exposed to risks of inhuman and degrading treatment as a result of the inadequacy of the protection system. It noted that, in its decision of 23 November 2015 (see paragraph 15 above), the Conseil d’État had found that the shortcomings of the authorities in the handling of minors in the Calais shantytown characterised a disregard for the principle of the dignity of the human person. It added that, even at the present time when the shantytown no longer existed, nothing was being done in the Calais area to guarantee prompt protection measures for unaccompanied foreign minors.", "The Court’s assessment", "(a) General considerations and principles", "72. Ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. The Court has previously deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Rahimi, cited above, § 59, and the judgments cited therein).", "73. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment. Those Articles, taken together, should enable effective protection to be provided, particularly to children and other vulnerable members of society, including reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge (see, among many other authorities, Rahimi, cited above, §§ 60 and 62, and the judgments cited therein).", "74. In cases concerning foreign minors, whether accompanied or unaccompanied, the child’s situation of extreme vulnerability is the decisive factor and it takes precedence over considerations relating to his or her status as an irregular migrant (see, for example, N.T.P. and Others v. France, no. 68862/13, § 44, 24 May 2018, and the judgments cited therein, and Rahimi, cited above, § 87). The Court thus emphasised in Rahimi (ibid.) that as an unaccompanied foreign minor without leave to remain the applicant fell into “the category of the most vulnerable individuals in society”, and that it had been incumbent on Greece to protect him and provide for him by taking appropriate measures in accordance with its positive obligations under Article 3.", "75. The Rahimi case concerned the situation in Greece of an unaccompanied minor, an Afghan national aged 15. Having arrived alone on the island of Lesbos, he had been arrested and held there for two days. He had been released after being notified of a removal measure. Having reached Athens, the day after his release, he remained there for about a day, left to his own devices, until he was picked up by a non-governmental organisation. He had not yet filed an asylum application. The Court found a violation of Article 3 of the Convention, taking the view that, particularly on account of the authorities’ failure to monitor and provide for the applicant, the threshold of severity required for that Article to be engaged had been attained. It observed that the applicant had been left to his own devices after being released by the Greek authorities, basing its finding on reports about the lack of provision for unaccompanied foreign minors in Greece by the Council of Europe Commissioner for Human Rights, the Office of the United Nations High Commissioner for Refugees (UNHCR), the Greek Ombudsman and the non-governmental organisations Amnesty International and Human Rights Watch, together with the testimony of non-governmental organisations which had followed the applicant’s case on Lesbos and in Athens. It noted in particular that his accommodation and his protection more generally had been provided for solely by local non-governmental organisations. It found that on account of the conduct of the authorities, which had been indifferent towards him, the applicant must have felt extremely anxious and worried, especially from the time of his release until he was looked after in Athens by a non-governmental organisation, which indicated that when he was admitted to the accommodation centre for minors he had trouble going to sleep without leaving the light on, had difficulty speaking and was very under-nourished.", "(b) The present case", "76. The Court notes the applicant’s young age at the material time. He was 11 years old when he arrived in France in September 2015. He was 12 when the southern zone of the Calais heath was cleared (in February 2016) and when he left France (in the week of 20 March 2016).", "77. The Court further observes that, in the applicant’s submission, he settled on the Calais heath in September 2015. Moreover, his presence on the site is established by a video-recording of 21 February 2016, produced by him in support of his observations, and by the decisions of 19 and 22 February 2016 (see paragraphs 30-31 above). Further noting that the Government neither disputed the applicant’s presence on the heath nor claimed that he arrived there later or left before 20 March 2016, the Court finds that he lived there for about six months.", "78. The applicant has not described in detail the material conditions of his life on that site. He merely stated that, as he was not under the care of the authorities, he lived in a “hut” in the southern zone of the heath, and that after the demolition of this hut during the clearance operations he had moved to a “makeshift shelter” in the northern zone. He also stated that he had received support from non-governmental organisations.", "79. That being said, the Court finds that the Government did not dispute the applicant’s claim that he had not received any care from the authorities. This is borne out by the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016 (see paragraph 31 above), and several of the documents mentioned in paragraph 39 above show that this was the case for the majority of unaccompanied foreign minors in the Calais area (see, for example, the “Follow-up opinion on the situation of migrants in Calais and its surroundings” by the CNCDH, § 95).", "80. As to the living conditions on the heath, they are described by the urgent applications judge of the Conseil d’État in his decision of 23 November 2015 (see paragraph 15 above) and also by national and international bodies (paragraphs 7-13 and 39 above) and by non-governmental organisations.", "81. It can be seen from those documents that the authorities only distributed 2,500 meals, once a day, whereas, according to the above-mentioned decision, 6,000 people were living on the heath in November 2015. They also show that most of those people lived in cramped conditions, in tents or makeshift shelters made of wooden boards and tarpaulins, and in very poor conditions of hygiene due to inadequate sanitation, drainage and waste collection facilities, and that they had limited access to safe drinking water and healthcare. The Défenseur des droits described the heath in particular as a “shantytown” and the living conditions of the majority of its occupants as “inhumane” (see paragraph 12 above). The urgent applications judge of the Conseil d’État, who used the term “shantytown” in his decision of 23 November 2015, found that provision for the basic needs of those concerned with regard to their hygiene and drinking water was “manifestly inadequate” and that this revealed “a deficiency of such a nature as to expose them, to a severe degree, to inhuman or degrading treatment, thus causing a serious and manifestly unlawful breach of a fundamental freedom” (see paragraph 15 above).", "82. The Government indicated that, pursuant to the decision of the urgent applications judge, the heath site had been tidied up, ten additional water access points and fifty toilets had been installed, together with a roadway for emergency access and a waste collection system. The Court would observe, however, that having regard in particular to the number of people present on the heath, these measures could only bring about a relative improvement of the occupants’ living conditions (see, in particular, the above-cited “Follow-up opinion on the situation of migrants in Calais and its surroundings” by the CNCDH, § 36). The prefect’s order of 19 February 2016 for the clearance of the southern zone was indeed based on considerations relating to public health and human dignity (see paragraph 17 above).", "83. Following the clearance of the southern zone many of its occupants settled in the northern zone of the heath, thus exacerbating the cramped living conditions there. The CNCDH thus reported in April 2016 that, in spite of the measures taken by the authorities “between 2,000 and 3,500 individuals continue[d] to live in the shantytown in dangerous and unhealthy makeshift shelters, in a state of total squalor”, and that “many of those makeshift installations [were] becoming permanent, in the absence of any alternative accommodation provided by the State” (document cited above, § 37).", "84. In that context, unaccompanied foreign minors were, being left to their own devices, also exposed to various dangers such as the risk of physical violence, including sexual abuse (see, for example, the UNICEF report “Neither safe nor sound; investigation into unaccompanied children in northern France”; see also paragraphs 13, 55-56, 61, 63 and 69 above).", "85. Accordingly, in the absence of protection by the authorities and in spite of the support he was able to find from non-governmental organisations on the heath, the applicant spent six months in an environment that was manifestly unsuited to his status as a child, characterised in particular by unhealthy, precarious and unsafe conditions. It was precisely on the grounds of the danger in which he found himself, and the fact that the danger had been exacerbated by the clearance of the southern zone of the heath, that the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance ordered on 22 February 2016 that he be placed in the care of the child welfare services (see paragraph 31 above).", "86. In the Court’s view, while already extremely problematic before the clearance of the southern zone, the failure to provide the applicant with care was even more so in the aftermath of that operation, owing to the demolition of the hut in which he had been living and the general deterioration of living conditions on the site that the operation had caused. The applicant’s statements on the latter point (see paragraph 32 above) are consistent in particular with the information reported by the Défenseur des droits (see paragraph 58 above), by the CNCDH (see paragraph 62 above) and by the non-governmental organisation GISTI (see paragraph 65 above).", "87. The Government submitted that every effort had been made by the authorities to take charge of the applicant in accordance with the decision of 22 February 2016, but that the applicant had not turned up at the home designated to receive him. They added that neither his ad hoc guardian, nor the associations that had supported him, nor his lawyer, had taken him there. They indicated that the child welfare service had then tried unsuccessfully to trace him by contacting the association to which the State had entrusted the enumeration of unaccompanied minors. In their submission, this showed that the applicant was not seeking long-term shelter and care in France (see paragraphs 53-54 above).", "88. In the Court’s view, the fact that it was necessary to wait for the Youth Judge to order the applicant’s placement before his case could actually be considered by the competent authorities raises in itself a question as to the respondent State’s compliance, in respect of the applicant, with its obligation to protect and take care of unaccompanied foreign minors under Article 3 of the Convention (see paragraph 74 above). It follows that, until that point, the competent authorities had not even identified the applicant for that purpose, even though he had been on the heath for several months and his young age should have particularly attracted their attention.", "89. In this connection, it appears that, as complained of by the applicant (see paragraph 51 above) and as noted in particular by the Special Representative of the Council of Europe Secretary General on Migration and Refugees (see the “Report of the fact-finding mission on the situation of migrants and refugees in Calais and Grande-Synthe, France”, cited in paragraph 39 above), the steps taken to identify unaccompanied foreign minors on the heath were insufficient. This shortcoming explains, at least in part, the difficulty encountered by the child welfare service in tracing the applicant in order to enforce the 22 February 2016 decision.", "90. With regard to the Government’s argument that the failure to comply with that decision could be attributed to the applicant’s lack of cooperation, it appears from the file that unaccompanied foreign minors on the heath did not always go along with the proposed care measures (see, for example, the recommendation of the Défenseur des droits of 20 April 2016, cited above; see also paragraph 58 above). However, the Court notes that, in the opinion of the Défenseur des droits in particular, the reluctance of unaccompanied minors on the heath could be explained by the fact that the shelter system was unsuited to their situation, in particular because of the distance of the facilities; it further observes that, according to the Défenseur des droits, their reluctance could not, in any event, justify the inaction of the authorities, which had an obligation to ensure their protection and therefore to find the best means to fulfil it, taking into account the specificities of the minors’ situation (ibid.). In the present case the applicant stated that he himself was in favour of an alternative accommodation solution. The Court would point out that he was a child of only twelve years old who, moreover, probably had only a limited knowledge of the French language. It is not therefore persuaded by the Government’s assertion that it was for the applicant himself to take the necessary steps to ensure that his protection measures were implemented. Nor does it consider that the non-governmental organisations which had provided support to the applicant on a voluntary basis, the lawyer who had represented him in the proceedings leading to the decision of 22 February 2016, and the ad hoc guardian who had been appointed on 19 February 2016, could be reproached for not having taken him to the home designated by the authorities for his placement, since this was clearly the responsibility of the State.", "91. The Court is aware of the complexity of the task facing the national authorities, in particular with regard to the number of persons present on the heath at the relevant time, together with the difficulty of identifying unaccompanied minors among them and of establishing and implementing arrangements adapted to their situation when they were not always seeking protection. On the latter point, it notes the ambiguity of the applicant’s conduct: although he applied to the Youth Judge for his provisional placement, his intention was not to remain in France but to leave the country and travel to the United Kingdom. The Court further notes that the national authorities did not remain totally inactive since they took steps to enforce the decision of 22 February 2016.", "92. In view of the foregoing, however, the Court is not persuaded that the authorities, which ultimately failed to implement the decision of the Youth Judge of the Boulogne-sur-Mer tribunal de grande instance of 22 February 2016 ordering the applicant’s provisional placement, did all that could reasonably be expected of them to fulfil the obligation to provide care and protection to the applicant, such obligation being imposed on the respondent State as he was an unaccompanied foreign unaccompanied minor and irregular migrant, at the age of twelve, and therefore an individual falling with the category of the most vulnerable individuals in society (see paragraph 74 above).", "93. The applicant thus spent several months in the shantytown of the Calais heath, in an environment totally unsuited to his status as a child, whether in terms of safety, housing, hygiene or access to food and care, and in unacceptably precarious conditions in view of his young age.", "94. The Court is of the view that these particularly serious circumstances and the failure to enforce the decision of the Youth Judge ordering measures for the applicant’s protection, when taken together, constitute a breach of the obligations imposed on the respondent State, thus attaining the threshold of severity required for Article 3 of the Convention to be engaged. It thus concludes that the applicant found himself, as a result of the failings of the French authorities, in a situation which contravened that provision and which it considers to have constituted degrading treatment.", "95. Accordingly, there has been a violation of Article 3 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND Article 1 of Protocol No. 1", "96. The applicant complained of the destruction of his shelter, which was his home, without sufficient notice or any offer of alternative accommodation and protection, even though he was an unaccompanied minor. He relied on Article 8 of the Convention and Article 1 of Protocol No. 1, which read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "97. Having regard to the facts of the case, to the parties’ submissions and to the conclusion it has reached under Article 3 of the Convention, the Court takes the view that it has examined the main legal question raised by the present application and that it does not need to rule separately on the other complaints (see, in particular, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "98. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "99. The applicant claimed 29,000 euros (EUR) in respect of the pecuniary and non-pecuniary damage that he alleged to have sustained as a result of the failure to take him into care and the demolition of his shelter.", "100. The Government submitted that the applicant’s claim should be rejected. They took the view, first, that the alleged pecuniary damage had not been substantiated and that the non-pecuniary damage claimed had been the result of the applicant’s own conduct, as he had eschewed the alternative accommodation offered to him. They added that, should the Court nevertheless find the pecuniary damage to be substantiated, the finding of a violation of the Convention would in itself constitute sufficient just satisfaction.", "101. The Court does not discern any causal link between the violation of Article 3 that it has found and the pecuniary damage alleged; it therefore rejects this claim. However, it finds it appropriate to award the applicant EUR 15,000 in respect of non-pecuniary damage.", "Costs and expenses", "102. The applicant also claimed EUR 1,000 for the costs and expenses incurred in the proceedings before the Court.", "103. The Government noted that the applicant had failed to adduce any documents to substantiate the reality and amount of the costs that he was claiming. They inferred that no award should be made to him on this basis.", "104. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, noting that the applicant did not provide any supporting documents, the Court rejects the entire claim for costs and expenses.", "Default interest", "105. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicants were allegedly born in 1999. Mr Ousainou Darboe lives in Padua. The whereabouts of Mr Moussa Camara are unknown. The applicants are represented before the Court by Mr M. Ferrero and Ms E. Chiaretto, lawyers practising in Padua.", "3. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora, and subsequently by Mr L. D’Ascia, her successor.", "4. The facts of the case may be summarised as follows.", "Mr Moussa Camara", "5. According to Mr Moussa Camara, he reached the coast of Sicily in 2016 and was transferred to an adult reception centre in Cona (Venice).", "6. By a letter dated 24 June 2021, his representatives informed the Court that they had lost contact with their client. It is therefore proposed to strike this part of the application out of the list of cases (see paragraphs 95 et seq. below).", "7. Thereinafter, the Court will then refer to Mr Ousainou Darboe as “the applicant”, with the only exception of paragraphs 95 to 98 below.", "Mr Ousainou DarboeThe applicant’s arrival in Italy and age assessment", "The applicant’s arrival in Italy and age assessment", "The applicant’s arrival in Italy and age assessment", "8. The applicant reached the coast of Sicily on 29 June 2016 aboard a makeshift vessel.", "9. He submitted that he had declared his minor age and orally expressed his intention to apply for international protection shortly after his arrival. However, no information on how to initiate the relevant procedure was provided to him, and no request for international protection was eventually lodged in his case.", "10. The applicant was initially housed in a centre for foreign unaccompanied minors.", "11. On 27 September 2016 he was transferred to the adult reception centre in Cona. A healthcare card was provided to him, indicating his date of birth as 22 February 1999. According to this date, the applicant was seventeen years old at the time.", "12. On 27 October 2016, at the request of the prefecture, a doctor of the local health authority carried out a medical examination of the applicant to determine his age. The corresponding medical report stated that his bone age, as evaluated by X-ray examinations of the left wrist and hand on the basis of the Greulich and Pyle method [1], corresponded to that of an eighteen-year-old male.", "13. The applicant alleged that his consent to undergo this examination had not been acquired and that he had not been provided with a copy of the relevant medical report at the time. No margin of error was indicated therein, nor was any administrative or judicial decision regarding his age assessment communicated to him.", "14. Once in Cona, the applicant was assisted by lawyers, who eventually filed his application with the Court.", "The applicant’s application to the Venice District Court to obtain the appointment of a legal guardian", "15. On 16 January 2017 the applicant’s representatives lodged an application with the Venice District Court to obtain the appointment of a legal guardian. They stated that the applicant had declared to be an unaccompanied minor upon his arrival in Italy and had been registered as a minor by the local health authority, which had provided him with a healthcare card.", "16. They explained that the applicant had requested international protection since his arrival, and that he had been interviewed once in Cona by someone whose functions remained unknown, without the assistance of an interpreter or understanding the content of the document drawn up on that occasion, which had possibly been transmitted to the Venice Prefecture. The applicant had not yet received a provisional stay permit or been called by the relevant police department in Venice to file his request for international protection. No information had been provided to him with regard to the international protection procedure. He had not been interviewed in order to assess his possible vulnerability and specific needs as a minor.", "17. The representatives submitted that the applicant’s situation was in violation of Article 19 §§ 1, 4 and 5 of Legislative Decree no. 142 of 2015 (see paragraph 47 below), considering that, under these provisions, unaccompanied minors had to be accommodated in governmental initial reception facilities for the time strictly necessary for their identification, their possible age assessment and to receive all relevant information about their rights, in a manner appropriate to their age, including the right to apply for international protection. Moreover, during his stay, the applicant should have been interviewed with a view to assessing his personal situation. By no means should minors be housed in structures dedicated to adults. In addition, the police authorities should have immediately informed the Juvenile Court and its prosecutor that the applicant was there, so that the relevant guardianship proceedings could be initiated. None of these guarantees had been applied in his case.", "18. As to the applicant’s international protection request, the representative referred to the guarantees laid down in Article 19 of Legislative Decree no. 25 of 2008 (see paragraph 45 below), as regards in particular the obligation to provide the necessary assistance to the minor in order to formulate the request, the appointment of a legal guardian, the possibility of undergoing a non-invasive age-assessment medical examination, with the individual’s consent, and information pertaining to the type of examination and its consequences. The representatives also referred to the measures laid down in the context of age-assessment procedures by Prime Ministerial Decree no. 234 of 2016 (see paragraph 55 below) and reiterated that the applicant had not benefited from the above-mentioned safeguards.", "19. Lastly, the representatives asked that the applicant be granted all the above-mentioned rights as an unaccompanied minor asylum-seeker.", "20. On 19 January 2017 the guardianship judge annotated the first page of the application with the words “To be sent to the Venice police headquarters for the necessary checks”.", "21. In their observations, the Government did not provide any information concerning the outcome of that application. The applicant’s representatives indicated that no further communication had been addressed to them either.", "The applicant’s living conditions in ConaLiving conditions as described by the applicant", "Living conditions as described by the applicant", "Living conditions as described by the applicant", "22. The applicant complained of an overcrowding situation in the Cona reception centre, which was intended to house solely adults. Notwithstanding its 542-person capacity, the centre accommodated around 1,400 people at the time of his stay. The 360 sq. m dormitory housed 250 adults, sleeping in bunk beds.", "23. Proper heating and hot water in the bathrooms were lacking. The number of bathrooms and canteen benches was insufficient, educational and recreational activities were poor, and there were only twenty-five members of staff. Furthermore, knives, alcohol and narcotics circulated in the centre. Episodes of violence and prostitution took place during his stay.", "24. The applicant also complained of a lack of proper healthcare, including psychological assistance, and of access to legal information and assistance.", "Evidence submitted by the applicant", "25. The applicant submitted a number of pictures showing, among other things, overcrowded dormitories.", "26. He also provided a parliamentary question submitted by a member of parliament on 6 December 2016 following a visit to Cona on 16 November 2016. The relevant document indicated that the centre housed 1,256 people, living in seven large, overcrowded tents, measuring from 340 to 1,500 sq. m.", "27. The report stated that the centre was understaffed and that healthcare, provided by local practitioners who had to take care of a high number of patients, was inadequate. It was also noted that some people had been residing in the centre for more than one year.", "28. In addition, the applicant submitted a report from a non-governmental organisation, Associazione Giuristi Democratici. The report stated that, at the time of its visit on 4 January 2017, the centre had housed 1,400 people.", "29. According to this report, migrants were crammed into small brick buildings and large tents without proper heating. Bunkbeds were placed so close together that there was no space to pass between them. The number of canteen tables and chairs was insufficient compared to the number of people eating. Only one doctor was present during the day in the centre, while one nurse was there at night and during the holidays.", "The applicant’s transfer to a minor migrant centre", "30. On 21 January 2017 the applicant lodged a Rule 39 request to the Court asking to be transferred to facilities where his reception conditions as an unaccompanied minor could be ensured.", "31. Replying to the Court’s request for information on 26 January 2017, the Government stated that the applicant had undergone an X-ray examination of his wrist and hand, in the light of which he had been considered an adult. He was therefore still in Cona.", "32. On 14 February 2017 the Court decided to apply Rule 39 and to indicate to the Government to transfer the applicant to facilities where his reception conditions as unaccompanied minor could be ensured.", "33. The applicant’s representatives submitted the applicant’s X-ray results of 27 October 2016 to another doctor. A statement by that doctor, issued on 13 February 2017, expressed the view that the Greulich and Pyle method alone was not sufficient to determine an individual’s age with certainty and was only indicative, subject to biological variability. The degree of biological maturity, particularly during puberty, presented a wide statistical variability. Applying the TW3 method [2], the statement concluded that the applicant’s date of birth was compatible with that initially indicated by him, namely 22 February 1999.", "34. On 18 February 2017 the applicant was transferred to the “Villa Sarina-Aria” centre for minors in Vedrana di Budrio (Bologna). His stay in the Cona reception centre had lasted more than four months.", "35. On 2 March 2017 a representative of FAMI ( Fondo Asilo, Migrazione e Integrazione 2014-2020 – the 2014-2020 Asylum, Migration and Integration Fund), a project organised by the Ministry of the Interior and co-financed by the European Union, met the applicant and drew up a report detailing his personal and family situation in his country of origin and the different steps of his journey to Europe.", "36. On 9 March 2017 a representative of FAMI met the applicant again, assisted by an interpreter.", "37. The applicant was asked to answer certain questions concerning the period of his stay in Cona. The facts of the case presented to the Court were read to him, and he confirmed the circumstances and information described therein, also with regard to his identification procedure and the living conditions in Cona. In particular, he reported his difficulties living in an overcrowded facility housing adult and minor migrants together, without any information being provided to him and without any control and respect for the minimal rules of civil cohabitation.", "38. According to the relevant reports, the applicant pointed out that he had only had the opportunity to be interviewed once, upon his arrival. On that occasion, few questions had been put to him as regards his migration plans and no information as to the place he had reached, his rights as a minor migrant and the possibility of international protection had been provided to him. As regards his age assessment, the applicant stated that he had declared his minor age immediately upon his arrival, during the above-mentioned interview. However, his interlocutor had clearly expressed doubts as to the credibility of the information provided and informed him that he would have to undergo a medical examination in order to verify the veracity of his statements.", "39. During this second meeting with a FAMI representative, the applicant changed his date of birth to 22 May 1999 and provided a photo of what he considered to be his birth certificate, a copy of which was annexed to the file.", "40. The reports also indicated that the lack of information provided to the applicant, the absence of any qualified support and the suspicious and biased attitude towards him had clearly been a source of distress and disorientation.", "41. On 7 November 2018 Rule 39 was lifted." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAWPreliminary considerations", "Preliminary considerations", "Preliminary considerations", "42. At the time of the facts of the case, the relevant Italian legislative framework consisted only of the original texts of Legislative Decrees no. 25 of 20 January 2008 (see paragraph 45 below) and no. 142 of 18 August 2015 (see paragraph 47 below).", "43. Further parts containing some important provisions relating to the treatment of unaccompanied minors were later added to Legislative Decree no. 142 of 18 August 2015 by Law no. 47 of 7 April 2017, which entered into force on 6 May 2017 (see paragraph 48 below). These new parts are indicated in the footnotes to the Articles concerned (see paragraph 47 below).", "44. The legislative framework also included Legislative Decree no. 24 of 4 March 2014 (see paragraph 46 below), but that only addressed questions of human trafficking and became applicable on 6 January 2017, after the entry into force of Prime Ministerial Decree no. 234 of 10 December 2016 (see paragraph 55 below).", "Legislative frameworkLegislative Decree no. 25 of 20 January 2008 “Implementation of EU Directive 2005/85/CE on minimum standards on procedures in Member States for granting and withdrawing refugee status”", "Legislative Decree no. 25 of 20 January 2008 “Implementation of EU Directive 2005/85/CE on minimum standards on procedures in Member States for granting and withdrawing refugee status”", "Legislative Decree no. 25 of 20 January 2008 “Implementation of EU Directive 2005/85/CE on minimum standards on procedures in Member States for granting and withdrawing refugee status”", "45. The relevant provisions of this Legislative Decree state as follows:", "Article 19 - Guarantees for unaccompanied minors", "“1. Unaccompanied minors who have expressed their intention to ask for international protection shall be provided with the necessary assistance to lodge such a request. They shall be provided with the assistance of a legal guardian at all stages of the examination of the application, in accordance with Article 26 § 5.", "2. In case of doubt about the minor’s age, the individual may be subjected, with his or her consent or that of his or her representative, to non-invasive medical examinations. If the examinations do not allow the exact age to be determined, the provisions of this Article shall apply.", "3. The person shall be informed that his or her age can be determined through a medical examination, of the type of examination to be carried out and of its consequences in relation to the result of his or her request. Refusal to undergo the examination does not constitute grounds for not granting asylum or adopting the relevant decision.", "4. The minor shall participate in a personal interview [for the asylum request] and shall be duly informed of the significance and possible consequences of the personal interview ...", "Article 26 - Treatment of requests for international protection", "...", "5. When the request is presented by an unaccompanied minor, the receiving authority shall suspend the proceedings and immediately inform the Juvenile Court in order to open guardianship proceedings and appoint a legal guardian ... Within forty-eight hours the court shall appoint a legal guardian. The legal guardian ... shall make immediate contact with the minor to inform him or her of his or her appointment ... and with the police [ Questura ] to confirm and follow up the request [for international protection]. ...”", "Legislative Decree no. 24 of 4 March 2014 “Implementation of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims”", "46. The relevant provisions read as follows:", "Article 4 - Unaccompanied minors who are victims of human trafficking", "“1. Unaccompanied minors who are victims of human trafficking shall be duly informed of their rights, including that of access to the international protection procedure.", "2. A [Prime Ministerial] Decree ..., to be adopted within six months of the entry into force of this Decree, shall settle the mechanisms through which, if there are well-founded doubts about the victim’s minor age, and the age cannot be assessed through identification documents, in accordance with the best interests of the child, age shall be assessed through a multidisciplinary procedure carried out by specialised staff, following appropriate procedures that take into account the specificities of the minor’s ethnic and cultural origin, as well as, where appropriate, the identification of minors through the involvement of diplomatic authorities.", "Pending the age-assessment and identification procedures, a victim of human trafficking is considered to be a minor with regard to access to assistance and protection. Minority is also presumed where the multidisciplinary procedure does not allow the age of the person concerned to be established with certainty.”", "Legislative Decree no. 142 of 18 August 2015", "47. This Decree implemented EU Directives 2013/32 and 2013/33 (see paragraphs 76 and 77 below). The relevant provisions state as follows:", "Article 15 - Identification of the reception facility", "“1. The prefecture shall provide a place for the applicant in the facility that has been identified ...", "6. A refusal to place someone in a reception facility can be challenged before the administrative courts.", "Article 18 - Provisions on minors [3]", "1. In implementing the reception measures provided for by this Decree, the principle of the best interests of the child is of primary importance with a view to ensuring adequate living conditions, compatible with minority, in relation to the protection, well-being and development (included social development) of minors ...", "2. In order to evaluate the best interests of the child, it is necessary to interview the minor, taking into account his or her age, level of maturity and personal development, also with a view to evaluating his or her past experience and the risk that he or she is a victim of human trafficking, and to evaluate the possibility of family reunification ...", "2 bis. Emotional and psychological support of unaccompanied foreign minors shall be ensured at all ... stages of the proceedings by the presence of suitable persons, indicated by the minor, as well as of groups, foundations, associations and non-governmental organisations with proven experience in the field of assistance to foreign children ...", "2 ter. An unaccompanied foreign minor has the right to participate, through his or her representative, in all administrative and judicial proceedings concerning him or her, and to be heard on the merits. To this end, the presence of a cultural mediator shall be ensured.", "Article 19 - Accommodation of unaccompanied minors [4]", "1. ... Unaccompanied minors shall be accommodated in governmental initial reception facilities ... for the time (which should not exceed thirty days) strictly necessary for their identification (which should not exceed ten days), for their possible age assessment and for receiving all adequate information about their rights and their implementation, in a manner appropriate to their age, including the right to apply for international protection ... During their stay at the reception facility, an interview with a developmental psychologist shall be carried out, if necessary in the presence of a cultural mediator, in order to assess the minor’s personal situation, the reasons and the circumstances of his or her departure from the country of origin and travel, as well as their personal expectations ...", "1 bis. Under no circumstances shall a foreign unaccompanied minor be subject to removal at the border [ respingimento alla frontiera ].", "2. Unaccompanied minors shall be received in the framework of the system of protection of asylum-seekers, refugees and unaccompanied minor migrants ...", "2 bis. While choosing the place of reception, among those available, importance shall be given to the specific needs and characteristics of the minors that emerged from the interview described in paragraph 1 ... The accommodation for unaccompanied minors shall respect the minimum standards of services and assistance generally provided by the assistance facilities for minors and shall have authorisation under the relevant national and regional regulations ...", "3. In the event that reception facilities are temporarily unavailable, assistance shall be given by the public authority of the municipality in which they are located.", "3 bis. In the event of mass arrivals of unaccompanied minors and the impossibility of ensuring their reception as provided above, minors shall be accommodated, following a request by a prefect, in temporary structures exclusively dedicated to unaccompanied minors, suitable for up to fifty people each and only for the time necessary for their transfer to ordinary facilities ...", "4. A minor shall not be housed in structures dedicated to adults.", "5. The police authorities shall immediately inform the Juvenile Court and its prosecutor of the presence of unaccompanied minors, in order to open the relevant guardianship proceedings ...", "6. A legal guardian shall have the necessary competences to exercise his or her functions and shall perform his or her duties in conformity with the principle of the best interests of the child ...", "7 bis. Within five days of the interview described in paragraph 1 of Article 19- bis, if there is no risk to the foreign unaccompanied minor or his or her family members, once the minor’s consent has been acquired, and exclusively in his or her own interest, the person exercising parental authority, even temporarily, can send a report to the competent institution, which shall immediately commence enquiries [in respect of the minor’s family].", "7 ter. The results of the above-mentioned enquiries shall be communicated to the Ministry of the Interior, which shall promptly inform the minor, the person exercising parental authority and those who held the above-mentioned interview.", "7 quater. If family members able to take care of the unaccompanied foreign minor are identified, this solution shall be preferable to placing the minor in a centre ( comunità ) ...", "Article 19 bis - Identification of foreign unaccompanied minors [5]", "1. As soon as a foreign unaccompanied minor has contacted the police, social services or other representatives of local entities or the judicial authority (or those authorities have been notified of his or her presence), qualified staff of the initial reception facility shall carry out ... an interview with a view to assessing the individual’s personal and family history and any other elements useful for his or her protection, following the procedure set up by the Prime Ministerial Decree to be adopted within 120 days of the date of entry into force of this provision [6]. A cultural mediator shall be present during the interview.", "2. If there are well-founded doubts concerning the age declared by the minor, paragraphs 3 et seq. shall apply. In any event, pending the results of the identification procedure, the minor shall be housed in a dedicated initial reception facility for minors; where the conditions are fulfilled, the provisions of Article 4 of Legislative Decree no. 24 of 4 March 2014 shall apply.", "3. The identity of a foreign unaccompanied minor shall be verified by an authority responsible for public safety, with the assistance of a cultural mediator, in the presence of his or her legal guardian or provisional legal guardian, where already appointed, only once the minor has been provided with initial humanitarian assistance. When doubts as to the person’s age persist, the latter shall be verified primarily through an identity document, with the assistance of the diplomatic and consular authorities, where appropriate ...", "4. When reasonable doubts as to the unaccompanied minor’s age still persist, a prosecutor at the Juvenile Court can order a social and medical assessment in order to assess the person’s age.", "5. The foreigner shall be informed, with the assistance of a cultural mediator, in a language that he or she understands and in language adapted to his or her level of maturity and literacy, of the fact that his or her age can be determined through social and medical assessments, of the kind of examinations to be carried out and possible consequences of their results, as well as those resulting from a refusal to undergo such examinations. This information shall also be provided to the presumed minor’s legal guardian, even if exercising such powers temporarily.", "6. A social and medical age assessment shall be carried out in an appropriate environment and through a multidisciplinary approach by adequately trained professionals and, where appropriate, in the presence of a cultural mediator, using the least invasive method possible and with due respect to the person’s presumed age, sex, and physical and mental integrity. Social and medical assessments which could compromise the person’s physical and mental integrity shall not be carried out.", "7. The result of the social and medical assessment shall be communicated to the foreign national in a manner appropriate to his or her age, maturity and level of literacy, in a language that he or she can understand. [It shall also be communicated] to the person exercising parental authority and the judicial authority that ordered the age assessment. The margin of error must always be indicated in the final report.", "8. If, after the social and medical assessment, doubts about the person’s minor age still persist, minor age shall be presumed ...", "9. The age-assessment certificate [issued by the Juvenile Court, pursuant to Legislative Decree no. 220 of 22 December 2017] shall be served on the alien and, at the same time, on the legal guardian, where one has been appointed, and can be challenged on appeal, in accordance with Article 739 and et seq. of the Code of Civil Procedure. If appealed against, the judge shall decide the appeal within ten days ...”", "Law no. 47 of 7 April 2017 - Provisions concerning the protection of unaccompanied minors", "48. This Law aims at ensuring foreign unaccompanied minors all the rights granted to minors of Italian or European Union nationality, with consideration in particular for their increased vulnerability (Article 1).", "49. The different phases of the age-assessment procedure have been summarised in the new Article 19 bis and in the new paragraphs of Articles 18 and 19 of Legislative Decree no. 142 of 2015.", "50. Other protective measures concern, inter alia, the following issues: pending the appointment of a guardian, the person in charge of the reception centre is entitled to act on behalf of the minor in order to apply for a residence permit or international protection (Article 6); unaccompanied minors’ placement with families (to be preferred to their placement in reception centres) (Article 7); procedural guarantees concerning unaccompanied minors’ repatriation (Article 8); the need to keep a “social report”, to be sent to social services, concerning the situation of unaccompanied minors and a long-term solution to be considered in their best interests (Article 9); the granting of a residence permit (Article 10); drawing up a list of duly trained voluntary guardians (Article 11); and informing foreign unaccompanied minors of their right to legal assistance (Article 16).", "51. The first paragraph of the latter Article has added paragraph 4 quater to Article 76 of Presidential Decree no. 115 of 30 May 2002 (on legislative provisions and regulations concerning legal expenses). The new paragraph reads as follows:", "“Unaccompanied foreign minors involved in judicial proceedings of any kind shall have the right to be informed of the opportunity to appoint a lawyer of their own choice, including via the appointed guardian or the person exercising parental authority ... and to make use, based on the applicable legislation, of public free legal aid at every type and stage of the procedure ...”", "Administrative measuresCircular of the Minister of the Interior of 9 July 2007 (Identification of minor migrants)", "Circular of the Minister of the Interior of 9 July 2007 (Identification of minor migrants)", "Circular of the Minister of the Interior of 9 July 2007 (Identification of minor migrants)", "52. The relevant parts of this Circular read as follows:", "“The current applicable legislation proscribes the expulsion of certain categories of individuals, including minor migrants ...", "The need to properly assess the age of migrants appears then to be of particular importance given that, in the event of a minor being wrongly identified as an adult, serious measures in breach of his or her rights, such as expulsion, removal or detention in a reception or identification centre, could be wrongly adopted.", "Therefore, if there are doubts about a possible minor’s age, it is necessary to carry out all the age-assessment examinations set out in the current legislation as a priority in public facilities with paediatric wards.", "However, as such assessments cannot provide exact information and can only indicate an age range, it is possible that the margin of error could include both minor and adult ages.", "In this regard, [we reiterate] ... that age assessment shall be carried out in a scientific and secure way, respecting the age, sex, physical integrity and dignity of the person concerned, and that the benefit of the doubt should always be applied.", "The principle of presumption of minor age [recognised in the framework of criminal proceedings against minors] shall also be applied in migration cases, as it is aimed at providing children with the broadest guarantees possible ...”", "Guidelines on unaccompanied foreign minors of the Ministry of Labour and Social Policies of 19 December 2013", "53. The relevant parts of these Guidelines state that, in the absence of identity documents and if there are well-founded doubts concerning the information provided by the individual concerned, age must be assessed by the competent authorities with due respect for the rights and the guarantees set out for minors. Minor age is presumed if, at the end of the assessment, doubts about minority still persist.", "Protocols on age assessment of unaccompanied minors", "54. A Protocol of 3 March 2016, signed by the Conference of Regions and Autonomous Provinces following the entry into force of Legislative Decree no. 142 of 2015 (see paragraphs 47 et seq. above) restated inter alia the applicable legislation and rules on this matter (including the Circular of the Minister of the Interior of 11 July 2007 and the Legislative Decree no. 24 of 4 March 2014, see paragraph 46 above). The document, based on a previous Protocol drawn up by the Ministry of Health in 2009 (“Protocol on the age assessment of minors based on a multidimensional approach”), was followed in turn by the “Multidisciplinary Protocol on the age assessment of unaccompanied minors” which was circulated to Regions and Autonomous Provinces on 19 November 2018. Only the latter Protocol was adopted by the Presidency of the Council of Ministers on 9 July 2020.", "Prime Ministerial Decree no. 234 of 10 December 2016 “Regulation of the mechanism for age assessment of unaccompanied minors who are victims of human trafficking”", "55. The relevant parts of this Decree, which entered into force on 6 January 2017, state as follows:", "Article 2 - Administrative identification procedure and age assessment", "“1. In all age-assessment procedures, the best interests of the child constitute the main criterion.", "2. The police shall verify the age of the person on the basis of the available identity documents ... and of the data collected from [public institution] databases ...", "4. If the assessment of the person’s age through the said documents is not possible, the police ... shall hold an interview with the presumed minor, explaining, possibly with the help of a cultural mediator and an interpreter, and in a language that is comprehensible and appropriate for a presumed minor, the importance of declaring correct information and the legal consequences of possible false declarations. The person shall also be informed that, if there are reasonable doubts as to his or her age, the judicial authority can authorise certain examinations ( accertamenti ), which can be medical in nature, in order to determine his or her age.", "5. The actions described in paragraphs 2 and 4 shall be carried out within twenty-four hours of the first contact with the potential human-trafficking victim, pursuant to Articles 600 and 601 of the Criminal Code ...”", "Article 3 - Intervention of the judicial authority", "“1. Once the actions referred to in Article 2 § 5 have been carried out, if reasonable doubts about the person’s age still persist ... the police can ask the competent guardianship judge for authorisation to carry out the procedure described in Article 5 ...", "4. While authorising the said procedure, the judge shall identify the person who is going to exercise legal guardianship [of the presumed minor] ... and a medical institution equipped with multidisciplinary paediatric staff where the examination described in Article 5 can be carried out ...”", "Article 4 - Right to information", "“1. The presumed minor shall be informed by qualified staff of the medical facility ... that his or her age is going to be determined through the age-assessment procedure described in Article 5. The information shall be provided in a language that the person can understand, and shall be adapted to his or her level of maturity and literacy, by means of the support of multilingual material and a cultural mediator, where appropriate. In any event, the presumed minor shall be informed:", "a) of the fact that his or her age shall be determined by means of a multidisciplinary procedure which can involve medical examinations;", "b) of the activities involved in the said procedure, of the expected results and of their consequences;", "c) of his or her right to refuse to submit to any steps of the examination described in Article 5.", "2. The steps described in paragraph 1 shall take place in the presence of a legal guardian or of a person temporarily entitled to guardianship ...”", "Article 5 - Multidisciplinary age-assessment procedure", "“1. Age assessment shall be carried out by qualified staff of the medical institution identified in accordance with Article 3 § 4 ... A medical examination shall be held following a method of progressive invasiveness. At all stages of the examination the guarantees and protections reserved to minors, taking into account their sex, culture and religion, shall be taken into account.", "2. The age-assessment procedure shall be carried out by a multidisciplinary team. It shall consist of an interview held by social workers ( colloquio sociale ), focusing on previous life experiences that might be relevant for the assessment, an auxological examination, and a psychological or neuropsychiatric evaluation, in the presence of a cultural mediator, where appropriate.", "3. The procedure shall start within three days of the date of the authorisation, as set down in Article 3 § 4, and end within the following twenty days. The final report, written by the multidisciplinary team, shall indicate the estimated chronological age, specifying the margin of error inherent in biological variability and the methods used, and the relevant minimum and maximum value of the age that can be attributed.", "4. The procedure’s results shall be communicated to the guardianship judge, the legal guardian or the person exercising, even temporarily, guardianship powers, and to the presumed minor in a language that he or she understands, taking into account the person’s age, maturity and level of literacy.”", "Article 6 - Age-assessment final decision", "“1. A guardianship judge shall take the decision concerning the attribution of age on the basis of the results of the multidisciplinary procedure ...", "2. In the event that the elements collected are not sufficient to establish, beyond any reasonable doubt, the person’s age, the judge takes the final decision on age assessment, stating the inability to attribute the exact age, and the minimum value referred to in Article 5 § 3;", "3. The decision is served on the person undergoing the examination, together with a translation in a language that he or she can understand well, as well as to the legal guardian or to the person exercising, even temporarily, guardianship powers; the decision can be challenged ...”", "Article 7 - Presumption of minor age", "“1. Pending the identification and age-assessment procedure, in view of the immediate access to assistance, support and protection, the victim of human trafficking shall be ... considered a minor.", "2. For the same purpose, minor age shall be presumed in the case described in Article 6 § 2.”", "Domestic case-law", "56. The Italian Supreme Court of Cassation, both in its Civil and Criminal Chambers (Chamber I, no. 6520 of 2020 and Chamber I, no. 43322 of 2021 respectively), has clarified that the multidisciplinary age-assessment procedure pursuant to Article 19 bis of Legislative Decree no. 142 of 2015, as amended (see paragraph 47 above), in force starting on 6 May 2017, has a pre-eminent position in the Italian legal system, as is made clear by the provision contained therein which stipulates that all other pending proceedings are suspended until age is assessed. The outcome of the assessment therefore has authority in any other set of civil or criminal proceedings, both pending or started subsequently.", "INTERNATIONAL LAW AND PRACTICEUnited NationsConvention on the Rights of the Child of 20 November 1989", "United NationsConvention on the Rights of the Child of 20 November 1989", "Convention on the Rights of the Child of 20 November 1989", "United NationsConvention on the Rights of the Child of 20 November 1989", "Convention on the Rights of the Child of 20 November 1989", "Convention on the Rights of the Child of 20 November 1989", "57. The United Nations Convention on the Rights of the Child (“the CRC”) sets out universally recognised standards for the protection and promotion of children’s rights. The relevant provisions provide as follows:", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”", "Article 12", "“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.", "2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”", "The UN Committee on the Rights of the Child", "58. The implementation of the CRC is monitored by the UN Committee on the Rights of the Child, which is composed of independent experts. Amongst other activities, it decides individual complaints and issues authoritative interpretative guidance on CRC provisions.", "59. By a decision of 27 September 2018 on individual complaint no. 11/2017 lodged against Spain in relation to the Optional Protocol to the CRC on a communications procedure (which entered into force on 14 April 2014), the Committee found a breach of the principle of the best interests of the child and of the right of the child to be heard, guaranteed by Articles 3 and 12 of the CRC, in a case where a migrant applicant, on arrival in Spain, had declared that he was a minor to the authorities. He had then been subject to an age-assessment examination on the sole basis of the Greulich and Pyle method, following which the authorities had adjudged that he was an adult. The Committee also noted that the applicant in that case had not been represented by a legal guardian or representative on his arrival, nor interviewed and assisted by a psychologist.", "60. The relevant General Comments of the UN Committee on the Rights of the Child are the following.", "61. General Comment no. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin describes the particularly vulnerable situation of such children and outlines the multifaceted challenges faced by States and other actors in ensuring that children are able to access and enjoy their rights.", "62. General Comment no. 12 (2009) on the right of the child to be heard strengthens the objective of supporting States Parties in the effective implementation of this right.", "63. General Comment no. 14 (2013) focuses on the right of the child to have his or her best interests taken as a primary consideration.", "Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by General Assembly resolution 45/158 of 18 December 1990", "64. The relevant parts of Joint general comment no. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and no. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration provide as follows:", "“35. ... it is critical to implement fully [children’s] right to express their views on all aspects affecting their lives, including as an integral part of immigration and asylum proceedings, and for their views to be given due weight. Children may have their own migration projects and migration-driving factors, and policies and decisions cannot be effective or appropriate without their participation. The Committee also emphasizes that these children should be provided with all relevant information, inter alia, on their rights, the services available, means of communication, complaints mechanisms, the immigration and asylum processes and their outcomes. Information should be provided in the child’s own language in a timely manner, in a child-sensitive and age-appropriate manner, in order to make their voice heard and to be given due weight in the proceedings.", "36. States parties should appoint a qualified legal representative for all children, including those with parental care, and a trained guardian for unaccompanied and separated children, as soon as possible on arrival, free of charge. Accessible complaints mechanisms for children should be ensured. Throughout the process, children should be offered the possibility to be provided with a translator in order that they may express themselves fully in their native language and/or receive support from someone familiar with the child’s ethnic, religious and cultural background. These professionals should be trained on the specific needs of children in the context of international migration, including gender, cultural, religious and other intersecting aspects.", "37. States parties should take all measures appropriate to fully promote and facilitate the participation of children, including providing them with the opportunity to be heard in any administrative or judicial proceeding related to their or their families’ cases, including any decision on care, shelter or migration status. Children should be heard independently of their parents, and their individual circumstances should be included in the consideration of the family’s cases. Specific best-interests’ assessments should be carried out in those procedures, and the child’s specific reasons for the migration should be taken into account.", "Regarding the significant relationship between the right to be heard and the best interests of the child, the Committee on the Rights of the Child has already stated that there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives.”", "65. The relevant parts of Joint general comment no. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and no. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration of 16 November 2017 provide as follows:", "“4. To make an informed estimate of age, States should undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or other professionals who are skilled in combining different aspects of development. Such assessments should be carried out in a prompt, child-friendly, gender-sensitive and culturally appropriate manner, including interviews of children and, as appropriate, accompanying adults, in a language the child understands. Documents that are available should be considered genuine unless there is proof to the contrary, and statements by children and their parents or relatives must be considered. The benefit of the doubt should be given to the individual being assessed. States should refrain from using medical methods based on, inter alia, bone and dental exam analysis, which may be inaccurate, with wide margins of error, and can also be traumatic and lead to unnecessary legal processes. States should ensure that their determinations can be reviewed or appealed to a suitable independent body ...", "15. The Committees are of the view that States should ensure that their legislation, policies, measures and practices guarantee child-sensitive due process in all migration and asylum administrative and judicial proceedings affecting the rights of children and/or those of their parents.”", "Council of EuropeCommittee of Ministers", "Committee of Ministers", "Committee of Ministers", "66. The relevant parts of Recommendation of the Committee of Ministers CM/Rec(2019)11 of March 2020, entitled “Effective guardianship for unaccompanied and separated children in the context of migration”, state as follows:", "“III. Guiding principles for an effective guardianship system", "Principle 1 – Protection of the rights of unaccompanied and separated children in migration through guardianship", "States should have in place an effective system of guardianship which takes into account the specific needs and circumstances of unaccompanied and separated children in migration in order to protect and promote their rights and secure their best interests.", "Principle 2 – Guardianship frameworks and measures", "States should adopt and implement adequate legal, policy, regulatory and/or administrative frameworks to ensure the provision of guardianship for unaccompanied and separated children in migration.", "Principle 3 – Appointment or designation of guardians without undue delay", "States should ensure that an unaccompanied or separated child in migration has a guardian appointed or designated without undue delay, taking into account individual characteristics, to provide support to the child until the age of majority, and that care and support are available through guardianship or other means for a transitional period after reaching 18 years of age, as may be deemed appropriate in specific situations.", "Principle 4 – Legal responsibilities and tasks of guardians", "States should take measures to empower guardians to inform, assist, support and, where provided by law, represent unaccompanied and separated children in migration in processes affecting them, to safeguard their rights and best interests and to act as a link between the child and the authorities, agencies and individuals with responsibilities for them. States should ensure that guardians enjoy the independence and impartiality appropriate to their role.", "Principle 5 – Information, access to justice and remedies, including child-friendly complaint mechanisms", "States should ensure that unaccompanied and separated children in migration are provided with relevant information and advice, and that they have access to an independent complaint mechanism and remedies to effectively exercise their rights or act upon violations of their rights.", "Principle 6 – Institutional measures", "States should ensure that a competent authority is in place with responsibility for the management of guardianship for unaccompanied and separated children in migration taking into account the manner in which responsibilities for guardianship are organised in member States.", "Principle 7 – Resources, recruitment, qualifications and training", "States should allocate adequate resources to ensure effective guardianship for unaccompanied and separated children in migration, including ensuring that guardians are adequately screened, reliable, qualified and supported throughout their mandate.", "Principle 8 – Co-operation and co-ordination at national level", "States should, in accordance with their domestic systems, establish mechanisms and take measures to ensure effective co-operation and co-ordination between people exercising responsibilities towards unaccompanied and separated children in migration, and the guardian and/or guardianship authority.", "Principle 9 – International co-operation", "States should rapidly, constructively and effectively provide the widest range of international co-operation in relation to unaccompanied and separated children in migration, including for family tracing and identifying and implementing sustainable, rights-based solutions, and involve in appropriate ways their guardianship authority and/or guardians.”", "Parliamentary Assembly", "67. The relevant material of the Parliamentary Assembly of the Council of Europe reads as follows:", "(a) Resolution 1810 (2011) “Unaccompanied children in Europe: issues of arrival, stay and return”, 15 April 2011", "“...", "5. The Assembly believes that child protection rather than immigration control should be the driving concern in how countries deal with unaccompanied children. With this in mind, it establishes the following ... principles, which it invites member states to observe and work together to achieve:", "5.1. unaccompanied children must be treated first and foremost as children, not as migrants;", "5.2. the child’s best interests must be a primary consideration in all actions regarding the child, regardless of the child’s migration or residence status;", "...", "5.5. every unaccompanied child should be provided immediately with a guardian mandated to safeguard his or her best interest. The legal guardian should be independent and should have the necessary expertise in the field of childcare. Every guardian should receive regular training and undergo regular and independent check-ups/monitoring;", "5.6. legal, social and psychological assistance should be provided without delay to unaccompanied children. Children should be informed immediately upon arrival or interception, individually and in a language and form that they can understand, about their right to protection and assistance, including their right to seek asylum or other forms of international protection, and the necessary procedures and their implications;", "5.7. all interviews with an unaccompanied child concerning his or her personal details and background should be conducted individually by specialised and well-trained staff and in the presence of the child’s guardian;", "5.8. access to asylum and international protection procedures must be made unconditionally available to all unaccompanied children. A harmonised, child-sensitive asylum system needs to be established, including procedures that take into consideration the additional difficulties children may have in withstanding trauma and in expressing coherently what has happened to them and their child-specific experiences of persecution. Asylum applications by unaccompanied children should be given priority and processed within the shortest appropriate time frame, while allowing children sufficient time to understand and prepare for the process. All unaccompanied children in asylum proceedings must be represented by a lawyer in addition to a guardian, provided free of charge by the state and be able to challenge before a court decisions regarding their protection claims;", "5.9. no detention of unaccompanied children on migration grounds should be allowed. Detention should be replaced with appropriate care arrangements, preferably foster care, with living conditions suitable for children’s needs and for the appropriate period of time. Where children are accommodated in centres, they must be separated from adults;", "5.10. age assessment should only be carried out if there are reasonable doubts about a person being underage. The assessment should be based on the presumption of minority, involve a multidisciplinary evaluation by an independent authority over a period of time and not be based exclusively on medical assessment. Examinations should only be carried out with the consent of the child or his or her guardian. They should not be intrusive and should comply with medical ethical standards. The margin of error of medical and other examinations should be clearly indicated and taken into account. If doubts remain that the person may be underage, he or she should be granted the benefit of the doubt. Assessment decisions should be subject to administrative or judicial appeal;", "5.11. the child’s views should be heard and given due weight in all relevant procedures, in accordance with his or her age and maturity. Administrative and judicial procedures within member states should be conceived and applied in a child-friendly manner ...”", "(b) Recommendation no. 1985 (2011) “Undocumented migrant children in an irregular situation: a real cause of concern”, 7 October 2011", "“... 1. A child is first, foremost and only, a child. Only after this may he or she be seen as a migrant. This, together with the need to take into account the best interest of the child, as stipulated by Article 3 of the United Nations Convention on the Rights of the Child, and the requirement not to discriminate between children, should be the starting point of any discussion about undocumented migrant children. The issue of migratory status can only ever be a secondary consideration.", "2. Undocumented migrant children are triply vulnerable: as migrants, as persons in an undocumented situation and as children. ...", "9. Bearing in mind the need for a firm legislative basis and implementation of the laws in practice, the Assembly recommends that member states: ...", "9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child ...”", "(c) Resolution no. 1996 (2014) “Migrant children: what rights at 18?”, 23 May 2014", "“... 3. The Parliamentary Assembly observes that there is no legal instrument, or even consensus, with regard to procedures for assessing a person’s age and stresses the need to apply the benefit of the doubt, bearing in mind the higher interest of the child. ...", "10. In view of the above, the Assembly calls on member States of the Council of Europe to:", "10.1. take due account of the specific situation of unaccompanied young migrants who are reaching adulthood, bearing in mind the higher interest of the child;", "10.2. give young migrants the benefit of the doubt when assessing their age and ensure that such assessment is made with their informed consent ...”", "(d) Resolution no. 2020 (2014) on the alternatives to immigration detention of children, 3 October 2014", "“... 9. The Assembly considers that it is urgent to put an end to the detention of migrant children and that this requires concerted efforts from the relevant national authorities. The Assembly therefore calls on the member States to:", "... 9.4. ensure that children are treated as children first and foremost, and that persons who claim to be children are treated as such until proven otherwise;", "9.5. develop child-friendly age-assessment procedures for migrant children ...”", "(e) Resolution 2136 (2016) on harmonising the protection of unaccompanied minors in Europe, 13 October 2016", "“... 5. The Assembly recalls that the general principle of respect for migrant minors’ rights first and foremost as children implies that they should benefit from special protection, including social and health care which ensure their physical and psychological integrity and development, sufficient and child-friendly information, education and empowerment. On observation of the situation in member States, it is clear that these conditions are far from being systematically guaranteed for unaccompanied migrant minors. ...", "8.2.5. in cases where a child’s age cannot be established by identity documents and only where there is doubt as to the individual’s status as a minor, carrying out early and non-intrusive age assessment in full respect for the dignity and integrity of children. The procedure should be multidisciplinary and carried out by independent professionals, familiar with their ethnic, cultural and developmental characteristics. Similar principles should apply when there is a dispute over the country of origin;", "8.2.6. improving or introducing accelerated asylum application procedures for unaccompanied minors, including the early designation of sufficiently trained guardians and legal representatives who can assist children and who are each allocated a small number of migrant children ...”", "(f) Parliamentary Assembly: Resolution no. 2195 (2017) on Child-friendly age assessment for unaccompanied migrant children, 24 November 2017", "“... 2. Age assessment is a process by which authorities seek to establish the chronological age, or age range, of a person, or determine whether an individual is an adult or a child. Currently there is no process of assessment, medical or otherwise, which can determine the exact age of an individual with 100% accuracy. There is also considerable variation in the methods and quality of age assessments undertaken in European States ...", "...", "6. The many methods of age assessment used in Europe reflect the lack of a harmonised approach and agreed method. The Assembly believes that the development of a child-sensitive, holistic model of age assessment would enable European States to meet the needs of unaccompanied or separated children. It therefore calls on member States to:", "6.1. conduct case-by-case, reliable age assessment of unaccompanied migrant children only in cases of serious doubt about the child’s age and as a last resort, in the best interests of the child;", "6.2. provide unaccompanied migrant children with reliable information about age-assessment procedures in a language that they understand, so that they can fully understand the different stages of the process they are undergoing and its consequences;", "6.3. appoint a guardian to support each unaccompanied migrant child individually during the age-assessment procedure;", "6.4. ensure that an unaccompanied migrant child or his or her representative can challenge the age-assessment decision through appropriate administrative or judicial appeal channels;", "6.5. use only as a last resort dental or wrist x-ray examinations and all other invasive medical procedures for the purpose of determining the age of unaccompanied or separated migrant children;", "6.6. ensure that all medical examinations are sensitive to the child’s gender, culture and vulnerabilities and that the interpretation of results takes into account the child’s national and social background as well as previous experiences;", "6.7. prohibit, in all situations, the use of physical sexual maturity examinations for the purpose of determining the age of unaccompanied and separated migrant children;", "6.8. prohibit the detention of unaccompanied or separated children who are awaiting or undergoing age assessment, and always apply the margin of error in favour of the person so that the lowest age in the margin determined by the assessment is recorded as the person’s age;", "6.9. identify and provide alternative accommodation options for children awaiting or undergoing age assessment, with a view to avoiding the detention of children during disputes about age, including by temporary placement in centres for children where appropriate safeguards should be in place to protect them and other children in the centres;", "6.10. support and promote the development of a single, holistic model of age assessment in Europe, based on the presumption that the person is a minor;", "6.11. whenever possible, ensure that the procedure of age assessment is carried out by professionals acquainted with the children’s ethnic, cultural and developmental characteristics. ...”", "(g) Parliamentary Assembly: Resolution no. 2449(2022) on Protection and alternative care for unaccompanied and separated migrant and refugee children, 22 June 2022", "“...6. The Assembly underlines that all member States should adopt a common approach whereby unaccompanied and separated migrant and refugee children are, first and foremost, considered as children. This entails ensuring that their best interest is the primary consideration, irrespective of their migration status in the country concerned. In this context, member States must ensure that unaccompanied and separated migrant and refugee children benefit from:", "6.1. all due child protection safeguards, including adequate and immediate identification and registration of their identity and legal, family and social situation;", "6.2. a robust and gender sensitive assessment of their immediate protection, support and care needs; particular attention should be paid to victims of violence, abuse and human trafficking as well as to children with special needs including medical and psychological needs;", "6.3. the immediate appointment of a guardian, who will act to protect the child’s best interest and link the child to required services, while searching for the child’s parents and family members;", "6.4. an exhaustive assessment and determination of their best interest by their guardians, child protection services or competent courts where necessary;", "6.5. access to education; governments must provide for the integration of unaccompanied migrant minors in the field of education, ensure their learning process and facilitate their link with school and with other children of their age;", "6.6. child-sensitive age-assessment procedures, which should only be carried out if there are serious doubts about a person’s age, and which should always be carried out in the best interests of the child, and be subject to independent monitoring; the development of a single model of age assessment in Europe, based on the presumption that the person is a minor; systematic application of the margin of error in favour of the person concerned, so that the lowest age in the margin determined by the assessment is recorded as the person’s age; and access to effective remedies.", "7. Furthermore, the Assembly underlines that member States are legally responsible for unaccompanied and separated migrant and refugee children within their territory in accordance with Article 8 of the European Convention on Human Rights and, therefore, should offer solid child protection systems, which include strong co-ordination between the competent child protection and migration bodies as well as with other authorities and relevant civil society. Appropriate and sustainable budgeting and investment in human and other resources can ensure adequate and gender sensitive protection and care...”", "The Council of Europe Commissioner for Human Rights – “Realising the right to family reunification of refugees in Europe”, February 2017", "68. The relevant parts read as follows:", "“... 8. Carry out age assessments only if there are reasonable doubts about a person being a minor. If doubts remain that the person may be underage, he or she should be granted the benefit of the doubt. Assessment decisions should be subject to administrative or judicial appeal.", "9. Age assessments based on medical evidence alone have proven to be ethically dubious and inadequate for determining a person’s actual age. Age assessments should rather involve a multidisciplinary evaluation by an independent authority over a period of time and not be based exclusively on medical assessment.", "10. Where there is a medical component to a multidisciplinary age assessment, examinations should only be carried out with the consent of the child or his or her guardian. Examinations should not be intrusive and should comply with medical and other pertinent ethical standards. The margin of error of medical and other examinations should be clearly indicated and taken into account. ...”", "“Thematic Report on migrant and refugee children” prepared by the Special Representative of the Secretary General on migration and refugees (SRSG), 10 March 2017", "69. This report follows four fact-finding missions held by the SRSG to Greece and North Macedonia, Turkey, northern France (Calais and Grande-Synthe) and Italy. It was published following the Council of Europe Secretary General’s proposals for priority actions in the context of “Protecting children affected by the refugee crisis: a shared responsibility”. The relevant parts read as follows:", "“The United Nations Children’s Fund (UNICEF) has noted that almost one child in ten lives in a country affected by armed conflict and more than 400 million children live in extreme poverty (UNICEF June 2016). Such harsh circumstances have led to half of the world’s displaced now being children under the age of 18 (UNHCR Global Trends 2015). ...", "According to figures from Eurostat and the European Parliamentary Research Service (EPRS), around 30% of asylum seekers arriving in Europe in the last two years were children. Nearly 70% of these children were fleeing conflict in Syria, Afghanistan and Iraq. The number of unaccompanied children who applied for asylum in the European Union reached 96,465 in 2015 and they accounted for almost one quarter of all asylum applicants under 18 years of age ...", "Identification and age assessment", "In order to access special protection and assistance measures, unaccompanied children must be identified and referred to child protection authorities. Without proper identification procedures in place, children are at risk of being treated like adults and placed in detention, as witnessed in the field.", "Therefore, age assessment measures are necessary when an individual’s stated age is disputed. However, as observed, such measures are not always comprehensive because psycho-social aspects appear to be neglected. The Committee on the Rights of the Child of the United Nations advises that age assessment measures should be multi-disciplinary and holistic (CRC General Comment No. 6) and should be carried out with appropriate safeguards.", "Registration and guardianship", "Following identification, children and families should be registered. Unaccompanied and separated children, as well as age-disputed individuals, should have a guardian appointed as soon as possible. As observed in the field, unaccompanied children are not always identified, registered and provided with a guardian. Without a guardian and suitable care, such children may be exposed to serious protection risks, such as sexual exploitation, and are more likely to go missing. Until a guardian is appointed, there is often a vacuum in terms of the child’s ability to access and to enjoy protection, particularly in countries where children need guardians in order to complete administrative procedures, including applications for asylum and requests for relocation and family reunification. While guardianship practices vary across Europe, good practice standards do exist ...”", "The European Social Charter", "70. In its decision of 15 June 2018 ( EUROCEF v. France, complaint no. 114/2015), the European Committee of Social Rights found, among other things, that “medical age assessments as currently applied can have serious consequences for minors and that the use of bone testing to determine the age of unaccompanied foreign minors is inappropriate and unreliable. The use of such testing therefore violates Article 17 § 1 of the [European Social] Charter”.", "71. In its 2019 Conclusions, the European Committee of Social Rights highlighted the following with regard to the right of children and young persons to social, legal and economic protection (Article 17 of the [European Social] Charter ):", "“ ... An issue that was considerably developed during the cycle was the right to assistance. The Committee is increasingly concerned about the treatment of children in an irregular migrant situation unaccompanied or not and asylum seeking children. In particular it stated that the detention of such children cannot be considered as being in their best interests and States Parties should find alternatives to detention. Further accommodation must be appropriate and in particular safe, in order to protect this vulnerable group from violence and exploitation. In the respect it found two countries not to be in conformity on the ground of the inadequate and often unsafe accommodation of unaccompanied migrant children or the inadequate protection from violence and abuse (Greece, Hungary).", "The Committee also raised a question regarding age assessments and bone testing. It noted that the use of bone testing in order to assess the age of unaccompanied children is inappropriate and unreliable. It asked whether the state uses bone testing to assess age and in what situations the state does so. Should the state carry out such testing, the Committee asked what potential consequences such testing may have (e.g., can a child be excluded from the child protection system on the sole basis of the outcome of such a test) ...”", "Council of Europe Greta (Group of Experts on Action against Trafficking in Human Being) reports", "72. While noting that the following sources concern trafficking in human beings, which is not per se the subject matter of the present case, the Court acknowledges that some of the principles referred to therein are worth citing in the present context.", "(a) Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Italy (first evaluation round), published on 22 September 2014, GRETA(2014)18", "“...135. GRETA urges the Italian authorities to ensure that all victims of trafficking are properly identified and can benefit from the assistance and protection measures contained in the Convention, in particular by:", "...", "- taking steps to address the problem of disappearance of unaccompanied foreign children by providing suitable safe accommodation and assigning adequately trained legal guardians;", "- developing age assessment tools and effectively implement the presumption and the measures foreseen in Article 10, paragraph 3, of the Convention when the age of the victim is uncertain and the measures foreseen in Article 10, paragraph 4, of the Convention if an unaccompanied child is identified as a victim of trafficking;", "...”", "(b) Report on Italy under Rule 7 of the Rules of Procedure for evaluating implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, published on 30 January 2017, GRETA (2016)29", "“...74. GRETA is seriously concerned by the fact that unaccompanied children disappear within a few days of being placed in reception centres. In the context of quick disappearances, it is not possible to establish whether the child is already in the process of being trafficked and what are his/her concrete individual protection needs, including that of international protection. GRETA once again urges the Italian authorities to take steps to address the problem of disappearance of unaccompanied children, in particular by:", "- providing enhanced safeguarding measures in reception facilities specialised for children, with adequately trained staff;", "- ensuring that unaccompanied children are assigned a legal guardian, as expeditiously as possible, and providing adequate training to legal guardians and foster families to ensure that the best interests of the child are effectively protected, in accordance with Article 10, paragraph 4, of the Convention.", "75. Further, GRETA considers that the Italian authorities should review the age assessment procedures, ensuring that the best interests of the child are effectively protected and that the benefit of the doubt is given in cases of age disputes and special protection measures are provided, in accordance with Article 10, paragraph 3, of the Convention, and taking into account the requirements of the UN Convention on the Rights of the Child and General Comment No. 6 of the Committee on the Rights of the Child...”", "(c) Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Italy (second evaluation round), published 25 January 2019, GRETA(2018)28", "“...48. Guardia di Finanza organises training for first-line staff dealing with emergencies related to irregular migration. In 2017, five training initiatives, both at central and peripheral level, were organised.", "In the training plan for 2018, there are also five training initiatives envisaged in the form of e-learning for first-line staff (a total of 1 600 persons).", "49. In collaboration with the Ministry of the Interior, UNHCR has provided training on the identification of victims of THB among asylum seekers to members of the Territorial Commissions dealing with asylum applications, on the basis of the new guidelines for the identification of THB victims among asylum-seekers (see paragraph 150). In 2017, 11 training workshops were organised throughout the territory of Italy. In 2018, four training sessions for members of Territorial Commissions were organised (in Milan, Brescia, Perugia and Cagliari) and another four were scheduled by the end of 2018 (in Foggia, Reggio Calabria, Trapani and Trieste). Since the beginning of the project almost 230 members of Territorial Commissions, 70 interpreters and 285 anti-trafficking personnel have been trained. Further, the subject of human trafficking was one of the focuses of the training organised by the National Commission for 250 new members of Territorial Commissions. The National Commission for the Right to Asylum and UNHCR, together with the High Council for the Judiciary, organised in 2017 and 2018 joint training of Presidents of Territorial Commissions and specialised judges dealing with asylum applications. Another training on trafficking in human beings for judges of Juvenile Courts was held in Naples in May 2018.", "50. Since 2017, the Department for Civil Liberties and Immigration of the Ministry of the Interior, with the support of EASO, has delivered training on the reception and protection of unaccompanied children to staff of first-line reception centres, Prefectures, and municipal police, health and social services. Eight trainings were delivered in 2017 and another six in 2018, including trainers from IOM and UNHCR. Several sessions were dedicated to children with special reception needs, including victims of trafficking. Further, EASO presented its tool for identification of persons with special needs.", "51. Further, in the framework of the project ADITUS which runs until the end of 2019, IOM implements training for staff working at facilities for asylum seekers and staff of the Prefectures involved in the management of the phenomenon of trafficking and exploitation. Training has already taken place in the regions of Piedmont, Veneto, Treviso, Liguria, Emilia Romagna, Tuscany, Lazio, Molise, Campania, Apulia, Calabria, Sicily and Sardinia (see also paragraph 148)...”", "Council of Europe Strategy for the Rights of the Child (2016-2021), March 2016", "73. This document set the priorities of the Council of Europe in the area of protection and promotion of the rights of the child for the period 2016 to 2021. The relevant parts read as follows:", "“7. Migration", "22. Children on the move and otherwise affected by migration are one of the most vulnerable groups in Europe today. In some countries, they face limited access to justice, education, social and health services. While unaccompanied children face a particularly precarious situation, migrant children at large even when accompanied by parents often suffer persistent violations of their human rights. The principle of the best interests of the child is too often neglected in asylum and immigration procedures. The use of detention instead of child welfare protection, failures in appointing effective guardianship, family separation and demeaning age-assessment procedures are emblematic of the different ways in which migrant children fall through loopholes in child protection frameworks. They are also at high risk of trafficking and exploitation. Children left behind when their parents migrate, as well as stateless children are likewise at a heightened risk of finding their rights violated.”", "Other Council of Europe instruments", "74. Further relevant information concerning minor migrants’ rights are illustrated in the following reports: “Age assessment: Council of Europe member States’ policies, procedures and practices respectful of children’s rights in the context of migration”, September 2017, and the Roundtable conference report “Child-friendly information for children in migration”, Council of Europe 29-30 November 2017.", "EUROPEAN UNION LAWEU Directives and ResolutionEU Directive 2005/85", "EU Directives and ResolutionEU Directive 2005/85", "EU Directive 2005/85", "EU Directives and ResolutionEU Directive 2005/85", "EU Directive 2005/85", "EU Directive 2005/85", "75. The relevant Article of this Directive states as follows:", "Article 17 - Guarantees for unaccompanied minors", "“1. With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 12 and 14, Member States shall:", "(a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application. This representative can also be the representative referred to in Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers;", "(b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for the personal interview. Member States shall allow the representative to be present at that interview and to ask questions or make comments, within the framework set by the person who conducts the interview.", "Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present.", "2. Member States may refrain from appointing a representative where the unaccompanied minor:", "(a) will in all likelihood reach the age of maturity before a decision at first instance is taken; or", "(b) can avail himself, free of charge, of a legal adviser or other counsellor, admitted as such under national law to fulfil the tasks assigned above to the representative; or", "(c) is married or has been married.", "3. Member States may, in accordance with the laws and regulations in force on 1 December 2005, also refrain from appointing a representative where the unaccompanied minor is 16 years old or older, unless he/she is unable to pursue his/her application without a representative.", "4. Member States shall ensure that:", "(a) if an unaccompanied minor has a personal interview on his/her application for asylum as referred to in Articles 12, 13 and 14, that interview is conducted by a person who has the necessary knowledge of the special needs of minors;", "(b) an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor.", "5. Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for asylum.", "In cases where medical examinations are used, Member States shall ensure that:", "(a) unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination;", "(b) unaccompanied minors and/or their representatives consent to carry out an examination to determine the age of the minors concerned; and", "(c) the decision to reject an application for asylum from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal.", "The fact that an unaccompanied minor has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum. L 326/22 Official Journal of the European Union 13.12.2005 EN The best interests of the child shall be a primary consideration for Member States when implementing this Article.”", "EU Directive 2011/95 (the so-called “Recast Qualification Directive”, “Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted”)", "76. The relevant parts of this Directive read as follows:", "Article 31 - Unaccompanied minors", "“1. As soon as possible after the granting of international protection Member States shall take the necessary measures to ensure the representation of unaccompanied minors by a legal guardian or, where necessary, by an organisation responsible for the care and well-being of minors, or by any other appropriate representation including that based on legislation or court order.", "2. Member States shall ensure that the minor’s needs are duly met in the implementation of this Directive by the appointed guardian or representative. The appropriate authorities shall make regular assessments.", "3. Member States shall ensure that unaccompanied minors are placed either:", "(a) with adult relatives; or", "(b) with a foster family; or", "(c) in centres specialised in accommodation for minors; or", "(d) in other accommodation suitable for minors.", "In this context, the views of the child shall be taken into account in accordance with his or her age and degree of maturity. ...", "6. Those working with unaccompanied minors shall have had and continue to receive appropriate training concerning their needs.”", "EU Directive 2013/32 (the so-called “Asylum Procedures Directive”, “Common procedures for granting and withdrawing international protection”)", "77. The relevant parts of this Directive read as follows:", "Article 25 - Guarantees for unaccompanied minors", "“1. ... Member States shall:", "(a) take measures as soon as possible to ensure that a representative represents and assists the unaccompanied minor to enable him or her to benefit from the rights and comply with the obligations provided for in this Directive. The unaccompanied minor shall be informed immediately of the appointment of a representative. The representative shall perform his or her duties in accordance with the principle of the best interests of the child and shall have the necessary expertise to that end. The person acting as representative shall be changed only when necessary. Organisations or individuals whose interests conflict or could potentially conflict with those of the unaccompanied minor shall not be eligible to become representatives. The representative may also be the representative referred to in Directive 2013/33/EU;", "(b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself or herself for the personal interview. Member States shall ensure that a representative and/or a legal adviser or other counsellor admitted or permitted as such under national law are present at that interview and have an opportunity to ask questions or make comments, within the framework set by the person who conducts the interview.", "Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present.", "2. Member States may refrain from appointing a representative where the unaccompanied minor will in all likelihood reach the age of 18 before a decision at first instance is taken.", "3. Member States shall ensure that:", "(a) if an unaccompanied minor has a personal interview on his or her application for international protection as referred to in Articles 14 to 17 and 34, that interview is conducted by a person who has the necessary knowledge of the special needs of minors;", "(b) an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor.", "4. Unaccompanied minors and their representatives shall be provided, free of charge, with legal and procedural information as referred to in Article 19 also in the procedures for the withdrawal of international protection provided for in Chapter IV.", "5. Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for international protection where, following general statements or other relevant indications, Member States have doubts concerning the applicant’s age. If, thereafter, Member States are still in doubt concerning the applicant’s age, they shall assume that the applicant is a minor.", "Any medical examination shall be performed with full respect for the individual’s dignity, shall be the least invasive examination and shall be carried out by qualified medical professionals allowing, to the extent possible, for a reliable result.", "Where medical examinations are used, Member States shall ensure that:", "(a) unaccompanied minors are informed prior to the examination of their application for international protection, and in a language that they understand or are reasonably supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for international protection, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination;", "(b) unaccompanied minors and/or their representatives consent to a medical examination being carried out to determine the age of the minors concerned; and", "(c) the decision to reject an application for international protection by an unaccompanied minor who refused to undergo a medical examination shall not be based solely on that refusal.", "The fact that an unaccompanied minor has refused to undergo a medical examination shall not prevent the determining authority from taking a decision on the application for international protection.", "6. The best interests of the child shall be a primary consideration for Member States when implementing this Directive. ...”", "EU Directive 2013/33 (the so-called “recast Reception Conditions Directive”, “Laying down standards for the reception of applicants for international protection”)", "78. The relevant parts of this Directive read as follows:", "Article 23 - Minors", "“1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Member States shall ensure a standard of living adequate for the minor’s physical, mental, spiritual, moral and social development.", "2. In assessing the best interests of the child, Member States member States shall in particular take due account of the following factors:", "(a) family reunification possibilities;", "(b) the minor’s well-being and social development, taking into particular consideration the minor’s background;", "(c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking;", "(d) the views of the minor in accordance with his or her age and maturity.", "3. Member States shall ensure that minors have access to leisure activities, including play and recreational activities appropriate to their age within the premises and accommodation centres. ...”", "Article 24 - Unaccompanied minors", "“1. Member States shall as soon as possible take measures to ensure that a representative represents and assists the unaccompanied minor to enable him or her to benefit from the rights and comply with the obligations provided for in this Directive. The unaccompanied minor shall be informed immediately of the appointment of the representative. The representative shall perform his or her duties in accordance with the principle of the best interests of the child, as prescribed in Article 23(2), and shall have the necessary expertise to that end. In order to ensure the minor’s well-being and social development referred to in Article 23(2)(b), the person acting as representative shall be changed only when necessary. Organisations or individuals whose interests conflict or could potentially conflict with those of the unaccompanied minor shall not be eligible to become representatives.", "Regular assessments shall be made by the appropriate authorities, including as regards the availability of the necessary means for representing the unaccompanied minor.", "2. Unaccompanied minors who make an application for international protection shall, from the moment they are admitted to the territory until the moment when they are obliged to leave the Member State in which the application for international protection was made or is being examined, be placed:", "(a) with adult relatives;", "(b) with a foster family;", "(c) in accommodation centres with special provisions for minors;", "(d) in other accommodation suitable for minors.", "Member States may place unaccompanied minors aged 16 or over in accommodation centres for adult applicants, if it is in their best interests, as prescribed in Article 23(2).", "As far as possible, siblings shall be kept together, taking into account the best interests of the minor concerned and, in particular, his or her age and degree of maturity. Changes of residence of unaccompanied minors shall be limited to a minimum.", "3. Member States shall start tracing the members of the unaccompanied minor’s family, where necessary with the assistance of international or other relevant organisations, as soon as possible after an application for international protection is made, whilst protecting his or her best interests. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety.", "4. Those working with unaccompanied minors shall have had and shall continue to receive appropriate training concerning their needs, and shall be bound by the confidentiality rules provided for in national law, in relation to any information they obtain in the course of their work.”", "Resolution of the Council of the European Union of 26 June 1997 on unaccompanied minors who are nationals of third countries", "79. The relevant parts of this Resolution read as follows:", "“Article 4 Asylum procedure", "...3. (a) In principle, an unaccompanied asylum-seeker claiming to be a minor must produce evidence of his age.", "(b) If such evidence is not available or serious doubt persists, Member States may carry out an assessment of the age of an asylum-seeker. Age assessment should be carried out objectively. For such purposes, Member States may have a medical age-test carried out by qualified medical personnel, with the consent of the minor, a specially appointed adult representative or institution.", "...Article 6 Final provisions", "1. Member States should take account of these guidelines in the case of all proposals for changes to their national legislations. In addition, Member States should strive to bring their national legislations into line with these guidelines before 1 January 1999.", "2. Member States shall remain free to allow for more favourable conditions for unaccompanied minors.”", "EU Action Plan on Unaccompanied Minors 2010-14", "80. This Action Plan aims at providing concrete responses to the challenges posed by the arrival of significant numbers of unaccompanied minors on EU territory.", "81. It recognises that the EU has a significant role in this matter and aimed at a global and integrated approach across its policies. It addressed the challenges of insufficient data, and then three main strands for action: prevention, regional protection programmes, reception and identification of durable solutions.", "82. Some priorities emphasised in the Action Plan include achieving higher standards of protection for unaccompanied children in EU law and evaluating the need to introduce targeted amendments or a specific instrument setting down common standards on reception and assistance for all unaccompanied minors regarding, among other things, guardianship, legal representation, access to accommodation and care, initial interviews and education.", "EASO (EU European Asylum Support Office) [7]", "83. The report “Age assessment practice in Europe” (2013) offers practical guidance, recommendations and tools on the implementation of the best interests of the child during age assessment. It promotes a multidisciplinary and holistic approach.", "84. It focuses, among other things, on the principle of the benefit of the doubt, the right of the individual to information and to express his or her views, the importance of designating a legal guardian and representative and the need for the opportunity to challenge age-assessment results.", "85. The “Practical guide on age assessment” second edition (2018) builds upon the information on the age-assessment process and methods analysed in the EASO 2013 report.", "86. In addition to the content of the latter, the guide highlights that there is no age-assessment method that can provide absolutely accurate results in respect of the chronological age of a person, and that all methods have a margin of error. As regards carpal (hand/wrist) maturity tests, the most practised group of tests among member States, the EASO stresses that “socioeconomic status is a key factor that affects the rate of ossification” leading to underestimating a person’s age. Dental observation is considered “not designed to estimate chronological age”, whilst physical development assessment is “the least accurate”.", "87. The EASO guide also points out the need to conduct age assessment using the least intrusive method. All X-ray examinations are physically intrusive since they use ionising radiation that maybe harmful. There is also opposition on ethical grounds to using radiation if it is not for medical purposes. Sexual maturity examinations are of a highly intrusive nature, conflicting with the rights of dignity, integrity and privacy, and should be precluded for age-assessment purposes.", "Summary Report – Separated, asylum-seeking children in European Union member States, (FRA) 2010", "88. The European Union Agency for Fundamental Rights (FRA) carried out a study on living conditions, provisions and decision-making procedures in respect of asylum-seeking children in twelve EU member States through child-centred participatory research.", "89. It identified the good practices and shortcomings of the existing systems in relation to aspects such as accommodation, access to healthcare, education and training, legal representation, the role of social workers, age assessment, family tracing and reunification.", "90. As regards age assessment, the comparative report reads as follows:", "“Age assessment should only be used where there are grounds for serious doubt of an individual’s age. If medical examinations are considered essential, the child must give his/her informed consent to the procedure after any possible health and legal consequences have been explained in a simple, child-friendly way and in a language that the child understands. Age assessment should be undertaken in a gender appropriate manner by independent experts familiar with the child’s cultural background and fully respecting the child’s dignity. Recognising that age assessment cannot be precise, in cases of doubt, authorities should treat the person as a child and grant the right to appeal age assessment decisions.”", "Age assessment and fingerprinting of children in asylum procedures – minimum age requirements concerning children’s rights in the EU” (FRA) 2018", "91. The EU Agency for Fundamental Rights mapped national legislative provisions on this matter and produced the following three recommendations with regard to age-assessment procedures:", "“1. In conducting an age assessment medical test, EU Member States should consider seeking the explicit consent of both the person concerned and their legal representative.", "2. EU Member States should use age-assessment procedures only where there are grounds for doubting an individual’s age. They should only use medical tests if they cannot base their age assessment on other, less invasive methods, such as documents or an interview by specialised social workers. Medical tests, especially involving radiation, should be a method of last resort to establish the age of a person seeking international protection, whereas sexual maturity tests should be prohibited. Medical tests should always be carried out by qualified medical staff, adhering to all relevant medical protocols and in a gender-sensitive way, taking into consideration the cultural background of the person concerned. If Member States still have doubts about the age of the person after a medical assessment test, they should decide in favour of the person being under the age of 18 years (presumption of minority), as provided in Article 25 (5) of the Asylum Procedures Directive.", "3. Persons having to undergo an age assessment medical test should be informed about the nature of the medical test and the possible health and legal consequences, especially as regards their legal status as international protection seekers. This information should be provided by competent national authorities in a child-friendly manner and in a language that they understand. To ensure that the rights of the child are respected, it is essential that before an age-assessment procedure, national authorities appoint a guardian to support and represent the person undergoing the assessment.”", "“Approaches to Unaccompanied Minors Following Status determination in the EU plus Norway”, Report of the European Migration Network (EMN) of the European Commission, July 2018", "92. This report, produced by the EMN, focuses, in particular, on the situation of unaccompanied minors who have been granted a residence permit or issued a return decision.", "93. As to the scale of unaccompanied minors in the EU, the report states that the number increased dramatically in 2015, reaching a total of 99,995 minors (an increase of 315% in comparison to the previous year) before returning to 31,975 in 2017. Germany, Sweden, Italy, Austria and Hungary received the highest number of minors applying for asylum in the EU over the 2014-17 period. The majority of these minors were boys (89%). Most of them were between the ages of 16 and 17 (65%) with only a small portion being less than 14 years old.", "94. The report provides information about EU member States’ care arrangements for unaccompanied minors, including when they turn 18 years old, their accommodation, guardianship, integration and healthcare.", "THE LAW", "The part of the application lodged by Mr Moussa Camara", "95. The Court reiterates that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court), but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm his or her continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 35, 17 November 2016; Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014; and, mutatis mutandis, Ali v. Switzerland, 5 August 1998, § 32, Reports of Judgments and Decisions 1998 ‑ V). In the case of N.D. and N.T. v. Spain [GC] (nos. 8675/15 and 8697/15, § 73, 13 February 2020), the Court found that some cases in which the applicant’s representative had lost touch with his or her client, including in cases concerning the expulsion of aliens, might warrant striking the application out of the list under Article 37 § 1. The lack of contact was sometimes taken as an indication that the applicant no longer wished to pursue the application within the meaning of Article 37 § 1 (a) (see Ibrahim Hayd v. the Netherlands (dec.), no. 30880/10, 29 November 2011, and Kadzoev v. Bulgaria (dec.), no. 56437/07, § 7, 1 October 2013) or that examination of the application was no longer justified because the representative could not “meaningfully” pursue the proceedings before it in the absence of instructions from the applicant, despite the fact that the lawyer had authority to continue with the proceedings (see Ali, cited above, §§ 30-33, and Ramzy v. the Netherlands (striking out), no. 25424/05, §§ 64-66, 20 July 2010). In some cases, the Court’s findings combined these two reasons (see M.H. v. Cyprus (dec.), no. 41744/10, § 14, 14 January 2014, and M.Is. v. Cyprus (dec.), no. 41805/10, § 20, 10 February 2015). In Sharifi and Others (cited above), the Court struck the application out of its list with regard to some of the applicants in respect of whom the information provided by the lawyer was vague and superficial and insufficiently substantiated (§§ 127-29 and 131 ‑ 34).", "96. In the present case, following the Court’s request to be informed whether the applicant’s representatives were still in contact with their client, on 24 June 2021 the latter replied by letter that they had lost contact with him. The Court also notes that the representatives have not insisted that the Court nonetheless continue the examination of his application (contrast V.M. and Others, cited above, § 32).", "97. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention and the Protocols thereto, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the application lodged by Mr Moussa Camara.", "98. Accordingly, this part of the application should be struck out of the list of cases.", "The part of the application LODGED by mr Ousainou DarboeThe applicant’s locus standi", "The applicant’s locus standi", "The applicant’s locus standi", "99. The Government pointed out that, at the time the applicant’s application was lodged, the applicant had been a minor and had not been represented by a legal guardian. He therefore had no standing in the proceedings before the Court.", "100. The applicant observed that, in his case, no legal guardian had been appointed at the initiative of the national authorities, despite it being required by law, and that this in fact constituted one of the core issues of his complaints.", "101. The Court has already examined cases where the power of attorney to be represented before the Court was provided by a minor applicant (see Rahimi v. Greece, no. 8687/08, 5 April 2011) or by an applicant whose age could not be determined with certainty (see Ahmade v. Greece, no. 50520/09, 25 September 2012).", "102. The Court sees no reason to depart from this approach. Moreover, it is apparent from the case file that the applicant’s complaints are based, inter alia, on the fact that no representative was appointed in his case, notwithstanding his declaration that he was of minor age.", "103. Even assuming that the Government’s preliminary consideration could be read as an objection of inadmissibility of the case for lack of the applicant’s locus standi, the Court concludes that their argument must be rejected.", "The Government’s objection of non-exhaustion of domestic remedies", "104. In the framework of their observations on the merits of the applicant’s complaint under Article 13 of the Convention, the Government submitted that the applicant had had the possibility of challenging his age assessment under Article 19 of Legislative Decree no. 25 of 2008 (see paragraph 45 above), which provides as follows:", "“Unaccompanied minors who have expressed their intention to ask for international protection shall be provided with the necessary assistance to lodge such a request. They shall be provided with the assistance of a legal guardian at all stages of the examination of the application ...”", "105. Moreover, the Government pointed out that Article 26 of the Decree stated that when the international protection request was presented by an unaccompanied minor, guardianship proceedings to appoint a legal guardian had to be opened immediately.", "106. In the Government’s view, the applicant or his representative could have appealed against the applicant’s age-assessment result by challenging the decision of the guardianship judge.", "107. Relying on the above-mentioned arguments, the Government concluded that the application should be declared inadmissible under Article 35 § 1 of the Convention.", "108. The Court observes that on 16 January 2017 the applicant lodged an application with the Venice Regional Court to obtain the appointment of a legal guardian. On that occasion, his representatives pointed out that he had not benefited from the guarantees granted to him by domestic law as an unaccompanied minor asylum-seeker. It should also be noted that, owing to the lack of appointment of a guardian on his arrival in Italy, the applicant promptly lodged his application as soon as he received legal assistance (see paragraphs 14 and 15 above). On 19 January 2017 the guardianship judge annotated the first page of the application with the words “To be sent to the Venice police headquarters for the necessary checks”. However, following this annotation, no further communication was addressed to the applicant’s representatives with regard to the outcome of that application, nor did the Government provide any information in this regard.", "109. In the light of the foregoing, the Court concludes that the applicant used, to the extent available to him, the domestic remedy pointed out by the Government, but to no avail. Accordingly, their objection should be dismissed.", "Alleged violation of Article 8 of the Convention", "110. The applicant complained that the competent authorities had failed to recognise his rights as an unaccompanied minor asylum-seeker. He alleged that the lack of protection had amounted to a violation of his right to respect for his private life. He relied on Articles 3 and 8 of the Convention.", "111. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), will examine the complaint from the standpoint of Article 8 alone, the relevant parts of which read as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The parties’ submissions", "(a) The applicant", "112. The applicant submitted that, despite having stated that he was a minor, he had been accommodated in an adult reception centre where he had been unable to benefit from the support and protection measures appropriate to his age.", "113. He further complained of a lack of access to legal information and of difficulties in communicating his discomfort and needs, in the absence of an interpreter or cultural mediator.", "114. Lastly, he drew the Court’s attention to the fact that he had been considered to be adult on the basis of an age-assessment procedure carried out in violation of the relevant provisions of national and international law.", "(b) The Government", "115. The Government argued that the applicant had been placed in Cona as an initial and temporary reception centre in order to be identified, in accordance with the law and on the basis of their statements. He had eventually been transferred to a centre for minors, as requested by the Court in application of Rule 39 of the Rules of the Court.", "116. As to the guarantees afforded to the applicant as an unaccompanied minor, the Government referred to several provisions of domestic law, including Legislative Decrees nos. 25 of 2008 and 142 of 2015, the Protocol on the identification and holistic multidisciplinary age assessment of unaccompanied minors of 2016, the Circular of the Minister of the Interior of 9 July 2007 and Prime Ministerial Decree no. 234 of 2016.", "The third-party interveners’ submissions", "(a) AIRE Centre, Dutch Council for Refugees, European Council on Refugees and Exiles (ECRE)", "117. These third parties highlighted the vulnerability of minor migrants and the importance of the principle of the best interests of the child in taking all actions concerning children. This requires a special regime in respect of asylum procedures and reception conditions, distinct from that applicable to adults.", "118. It was the interveners’ position that, owing to its potential impact on the mental and physical integrity of the subject, age-assessment procedures fall under the scope of Article 8 of the Convention. This includes age-assessment procedural safeguards such as information on the asylum procedure, the right of children to be heard in any judicial or administrative procedure and the need to collect their informed consent before proceeding with an age-assessment examination.", "(b) Défenseur des droits", "119. This third party emphasised that the vulnerability of minor migrants calls for governments to ensure effective protection of their rights, including the guarantee of being appointed a guardian or legal representative, who should be independent and qualified in order to duly assist the minor.", "120. Minors should be also informed about the proceedings they are undergoing, with the help of an interpreter if necessary.", "The Court’s assessment", "(a) Admissibility", "121. It is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant’s right to respect for his private life. The Court sees no reason to hold otherwise, in particular in view of the following reasons.", "122. It should be reiterated that the positive obligation of States under Article 8 of the Convention includes the competent authorities’ duty to examine a person’s asylum request promptly, in order to ensure that his or her situation of insecurity and uncertainty is as short-lived as possible (see, mutatis mutandis, M. S.S. v. Belgium and Greece [GC], no. 30696/09, § 262, 21 January 2011).", "123. The Court also observes that the concept of “private life” is a broad term which is not susceptible to exhaustive definition (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). It covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of the person’s identity such as, for example, gender identification, sexual orientation, name and elements relating to a person’s right to his or her image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). Article 8 protects, in addition, a right to personal development and the right to establish and develop relationships with other human beings and the outside world (see, for example, Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003-III, Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018 and Milićević v. Montenegro, no. 27821/16, § 54, 6 November 2018, all with further references). States’ obligations aimed to protect this right are even more important where, like in the present case, personal relationships of an unaccompanied minor are at stake, in a migration context that makes him or her particularly vulnerable.", "124. The Court considers that the age of a person is a means of personal identification and that the procedure to assess the age of an individual alleging to be a minor, including its procedural safeguards, is essential in order to guarantee to him or her all the rights deriving from his or her minor status.", "125. It also emphasises the importance of age-assessment procedures in the migration context. The applicability of domestic, European and international legislation protecting children’s rights starts from the moment the person concerned is identified as a child. Determining if an individual is a minor is thus the first step to recognising his or her rights and putting into place all necessary care arrangements. Indeed, if a minor is wrongly identified as an adult, serious measures in breach of his or her rights may be taken.", "126. According to the “Thematic Report on migrant and refugee children” prepared by the Special Representative of the Secretary General on Migration and Refugees (SRSG), as well as the Report of the European Migration Network (EMN) of the European Commission (see paragraph 69 and paragraphs 92 et seq. above), around 30% of asylum-seekers arriving in Europe in recent years have been children. The number of unaccompanied children increased in 2015, reaching a total of 99,995 minors (an increase of 315% in comparison with the previous year) before returning to 31,975 in 2017. Italy is among the countries which received the highest number of minors applying for asylum in the EU over the 2014-17 period.", "127. It follows that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "(b) Merits", "(i) Compliance with Article 8 of the Convention", "(α) General principles", "128. The Court reiterates that although the object of Article 8 is essentially that of protecting an individual against arbitrary interference by the public authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private and family life (see Bédat v. Switzerland [GC], no. 56925/08, § 73, ECHR 2016, and Lozovyye v. Russia, no. 4587/09, § 36, 24 April 2018). In choosing how to comply with their positive obligations, States enjoy a broad margin of appreciation (see A, B and C v. Ireland [GC], no. 25579/05, § 249, ECHR 2010).", "(β) The scope of the applicant’s complaint", "129. The substance of the applicant’s complaint is that the State failed to take all necessary measures to protect him as a minor and ensure the procedural safeguards related to his age assessment. The Court finds it appropriate to approach the present case from the perspective of Italy’s positive obligation under Article 8 of the Convention.", "130. In order to establish whether the requirements of Article 8 of the Convention were met in the present case, the Court will first acknowledge the national and international legal framework applicable at the time of the facts and, secondly, whether the authorities took reasonable steps to ensure the applicant’s procedural rights within the age-assessment procedure.", "131. In this context, the Court emphasises that it is not its task to speculate on whether or not the applicant was a minor at the time of his arrival in Italy, or whether he submitted any documents to prove his age. It is however satisfied that he did declare his minor age at some point after his arrival. This is likely to have happened by the time he arrived in Cona, when a healthcare card was provided to him indicating his date of birth as 22 February 1999, meaning he was a minor at the time (see paragraph 11 above). This was not contested by the Government. It should also be noted that there is no indication that the applicant’s claims that he was a minor were unfounded or unreasonable. In addition, a possible earlier declaration may have resulted from the initial placement of the applicant in a centre for minors, something on which, however, the Government did not take a clear stance. In the light of this, the scope of the case is to know whether, under Article 8 of the Convention, the domestic authorities ensured the procedural safeguards stemming from the applicant’s status as an unaccompanied minor requesting international protection.", "(γ) Legal national and international sources applicable at the time of the facts", "132. The Court reiterates at the outset that Law no. 47 of 2017 entered into force on 6 May 2017, thus after the facts of the case took place. This law added Article 19 bis to Legislative Decree no. 142 of 2015 (see paragraph 47 above) which introduced a social medical age assessment through a multidisciplinary approach by adequately trained professionals. This law establishes, in particular, the guarantees applicable to minor migrants and the different phases of the age-assessment procedure, taking into account the various applicable rules and elucidating the stage and type of action to be taken by the judiciary, the administration and medical staff. Moreover, the legal system has been further improved since the Juvenile Court acquired competence to issue age-assessment certificates (Legislative Decree no. 220 of 22 December 2017, see Article 19 bis of Legislative Decree no. 142 of 2015 in paragraph 47 above). The Court welcomes these legislative interventions.", "133. It should nevertheless be noted that, at the time the facts of the case were taking place, domestic and EU law already provided a number of guarantees for unaccompanied minor asylum-seekers.", "134. The Court refers to Article 19 of Legislative Decree no. 25 of 2008, implementing Article 17 of EU Directive 2005/85, in force at the material time, on minimum standards on procedures for granting and withdrawing refugee status (see paragraphs 45 and 75 above), which laid down guarantees for unaccompanied minors such as the assistance of a legal guardian during the international protection request, the need to obtain the individual’s consent for a non-invasive medical examination in case of doubt as to his or her minor age, the right to be informed that age can be determined through a medical examination, the type of examination to be carried out and its consequences in relation to the result of his or her request. Article 26 of the Decree provides that when the international protection request is presented by an unaccompanied minor, the proceedings must be suspended and guardianship proceedings must be opened in order to appoint a guardian for the minor.", "135. Paragraphs 1 and 2 of Article 18 of Legislative Decree no. 142 of 2015, implementing EU Directives 2013/32 and 2013/33 on asylum procedures, as in force at the time of the events (see paragraph 47 above), state the primary importance of the principle of the best interests of the child while implementing reception measures, in order to ensure adequate living conditions for minors. They clarify that it is necessary to interview the minor, taking into account his or her age, level of maturity and personal development, also with a view to evaluating his or her past experience and the risk that he or she could be a victim of human trafficking, and to evaluate the possibility of family reunification.", "136. The Court likewise reiterates that administrative measures also existed at the material time. In their observations on the admissibility and merits, the Government referred to several sources, including the Circular of the Minister of the Interior of 9 July 2007 (see paragraph 52 above) mentioning the margin of error inherent in the age-assessment examination of minor migrants. Moreover, the Guidelines on unaccompanied foreign minors of the Ministry of Labour and Social Policies of 19 December 2013 (see paragraph 12 above) state that age must be assessed by the competent authorities with due respect for the rights and guarantees established for minors.", "137. As regards the EU law in force at the material time, the Court may simply refer to the Directives that have been mentioned (see paragraphs 75, 76, 77 and 78 above), which have been implemented in Italy, as well as to the Resolution of the Council of the European Union of 26 June 1997 (see paragraph 79 above).", "138. As to Council of Europe sources, the Court reiterates, in particular, Parliamentary Assembly Resolution 1810 (2011) (see paragraph 67 above).", "139. These texts clearly recognise the primary importance of the best interests of the child and of the principle of presumption of minority in respect of unaccompanied migrant children reaching Europe.", "140. In particular, attention is given to the need for a child to be immediately provided with a guardian and for him or her to be assisted during the asylum proceedings. Several considerations are made in relation to medical examinations and age-assessment methods. Moreover, the margin of error inherent in medical examinations should always be taken into account.", "141. Although it is not for the Court, in the context of its assessments related to Article 8 obligations, to decide on whether these national, European and international legal standards were met, the legal sources cited above show a general recognition, at the material time, of the need for special protection for unaccompanied minor migrants. Therefore, the Court will examine whether the Italian authorities granted such special protection in the context of the applicant’s situation.", "(δ) National authorities’ positive obligation to protect the applicant’s rights as an unaccompanied minor", "142. The Court finds that the applicant’s procedural rights stemming from his status as an unaccompanied minor requesting international protection came into play in two ways in the present case, namely (i) his representation and (ii) the provision of adequate information during the age-assessment process.", "‒ Appointment of a guardian and/or representative", "143. Referring to the domestic and EU provisions cited above (see paragraphs 134 et seq.) in particular, the Court cannot but acknowledge that the national authorities failed to promptly provide the applicant with a legal guardian or representative. Despite having undisputedly orally expressed his wish to apply for international protection after his arrival, he was unable to request to have a guardian until his application to the Venice Regional Court on 16 January 2017.", "144. The Court is thus of the view that the failure to promptly appoint a legal guardian or representative in the applicant’s case prevented him from duly and effectively submitting an asylum request.", "‒ The right of the applicant to information in the framework of the age-assessment procedure", "145. As a consequence of a lack of consideration for his declared status as a minor, the applicant was placed in a reception centre for adults.", "146. A month later, on 27 October 2016, an X-ray examination of his left wrist and hand was carried out, without any information as to the type of age-assessment procedure he was undergoing and to its possible consequences. The applicant was then considered to be an adult. In these circumstances, the Court sees no need to examine the existence or validity of his consent to undergo a medical examination, or to assess its appropriateness (see, mutatis mutandis, Mahamed Jama v. Malta, no. 10290/13, 26 November 2015 and Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, 22 November 2016).", "147. It is, however, to be noted that the relevant medical report, which failed to indicate any margin of error, was not served on him.", "148. The Court also notes that no judicial decision or administrative measure concluding that the applicant was of adult age was issued in his case, which made it impossible for him to lodge an appeal.", "149. Once the applicant was in Cona and eventually assisted by his lawyers, he promptly filed an application with the Venice District Court to obtain the appointment of a guardian and recognition of his rights protected by the applicable domestic law as an unaccompanied minor asylum-seeker. However, no information was provided to him concerning the outcome of his application.", "150. Shortly after the applicant’s Rule 39 request, the Government transferred him to an adequate facility for unaccompanied minors. There, the applicant was interviewed by psychologists and representatives of FAMI and assisted by an interpreter. Despite these positive actions, the Court cannot but observe that owing to the shortcomings in the procedural guarantees afforded to him as a minor migrant after his arrival in Italy, the applicant was not afforded the necessary tools to file an asylum request and was placed in an overcrowded adult reception centre for more than four months.", "(ε) Conclusion", "151. As stated above, the concept of “private life” is a broad term which is not susceptible to exhaustive definition, covering both the physical and the psychological integrity of a person. This notion also includes a right to personal development and the right to establish and develop relationships with other human beings and the outside world (see paragraph 123 above with reference to the Court’s case-law).", "152. In addition, it reiterates that States’ interest in foiling attempts to circumvent immigration rules must not deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 81, ECHR 2006 XI).", "153. In the present case, the Italian authorities failed to apply the principle of presumption of minor age, which the Court deems to be an inherent element of the protection of the right to respect for private life of a foreign unaccompanied individual declaring to be a minor.", "154. While the national authorities’ assessment of the age of an individual might be a necessary step in the event of doubt as to his or her minority, the principle of presumption implies that sufficient procedural guarantees must accompany the relevant procedure.", "155. At the time of the facts of the case, these safeguards clearly included, under both domestic and EU law, the appointment of a legal representative or guardian, access to a lawyer and informed participation in the age-assessment procedure of the person whose age was in doubt. The guarantees put in place by EU and international law have gone further to ensure a holistic and multidisciplinary age-assessment procedure. The Court welcomes this development, as well as the implementation by the domestic authorities, subsequent to the facts of the present case, of a legal system which appears to be fully consistent with higher international standards.", "156. As regards the applicant’s situation, the fact remains that he did not benefit from the minimum procedural guarantees, and that his placement in an adult reception centre for more than four months must have affected his right to personal development and to establish and develop relationships with others. This could have been avoided if the applicant had been placed in a specialised centre or with foster parents. These measures, which are more conducive to the best interests of the child guaranteed by Article 3 of the Convention on the Rights of the Child ( ibid ., § 83), were considered and eventually put into place by the national authorities, but only after a considerable period of time had elapsed, following a Rule 39 application.", "157. In these circumstances, the Court concludes that the authorities did not act with reasonable diligence and therefore did not comply with their positive obligation to ensure the applicant’s right to respect for his private life in the present case. There has accordingly been a violation of Article 8 of the Convention.", "Alleged violation of Article 3 of the Convention", "158. The applicant also complained about his reception conditions in Cona. He alleged that the centre had been overcrowded and only intended for adults. He also complained of a lack of basic facilities such as proper heating and hot water, and a lack of access to medical care. The applicant also complained of a lack of psychological and legal assistance and an insufficient number of staff members and interpreters.", "159. He relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "The parties’ submissions", "(a) The applicant", "160. The applicant reiterated his complaints, relying on the evidence provided. He also noted that the Government had not disputed his account of the reception conditions in the Cona centre, which were supported by the evidence submitted.", "(b) The Government", "161. The Government stated that reception centres in the Veneto Region housed 8% of migrants entering the State. To cope with the massive phenomenon of migration, Cona, a former military facility, had been converted into a reception centre for migrants in July 2015.", "162. Structural renovations had then been carried out with regard to heating, hot water, the canteen facilities, educational activities and healthcare. In this regard, an agreement had been struck with the Italian Red Cross to ensure a proper healthcare service by providing sixteen specialised medical visits every day, as well as psychological assistance, and by deploying fourteen cultural mediators. Moreover, migrants could benefit from a wireless Internet connection, use two places of worship and make use of an area dedicated to sports and recreational activities.", "163. The Government also emphasised that the applicant had been provided with a health insurance card and could benefit from free healthcare. They maintained that structural and health and safety conditions in the Cona reception centre were appropriate.", "The third-party interveners’ submissions", "(a) AIRE Centre, Dutch Council for Refugees, ECRE", "164. These third parties highlighted the fundamental rights recognised to minor asylum-seekers as regards reception conditions, referring to the vulnerability of unaccompanied minors and to the principle of the best interests of the child.", "(b) Défenseur des droits", "165. Referring to the Court’s case-law ( Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014, and Mubilanzila Mayeka and Kaniki Mitunga, cited above), this third party emphasised that States must provide unaccompanied minors with reception conditions suited to their needs.", "The Court’s assessment", "(a) Admissibility", "166. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "(b) Merits", "(i) General principles", "167. The general principles applicable to the treatment of people held in immigration detention are set out in detail in M.S.S. v. Belgium and Greece (cited above, §§ 216-22), Tarakhel (cited above, §§ 93-99, ECHR 2014 (extracts)) and Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 158-69, 15 December 2016). In particular, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not create for them a situation of stress and anxiety, with particularly traumatic consequences. Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention (see Tarakhel, cited above, §§ 119, ECHR 2014 (extracts)).", "168. The Court reiterates that Article 3 of the Convention makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161).", "169. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, and in particular the nature and context of the treatment, the manner in which it was inflicted, its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII).", "170. With more specific reference to children, the Court has found a violation of Article 3 of the Convention on a number of occasions on account of the placement in migrant centres of accompanied and unaccompanied minors (in some cases, placed in administrative detention centres).", "171. As regards accompanied children, the Court points to the following cases: Muskhadzhiyeva and Others v. Belgium (no. 41442/07, §§ 55-63, 19 January 2010); Kanagaratnam v. Belgium (no. 15297/09, 13 December 2011); Mahmundi and Others v. Greece (no. 14902/10, §§ 72-74, 31 July 2012); Popov v. France (nos. 39472/07 and 39474/07, §§ 91-103, 19 January 2012); A.B. and Others v. France (no. 11593/12, §§ 107-15, 12 July 2016); R.R. and Others v. Hungary (no. 36037/17, §§ 58-65, 2 March 2021); M.H. and Others v. Croatia (nos. 15670/18 and 43115/18, §§ 183-204, 18 November 2021) and N.B. and Others v. France (no. 49775/20, §§ 47-53, 31 March 2022).", "172. With regard to unaccompanied minors, the Court refers to the following case-law: Mubilanzila Mayeka and Kaniki Mitunga (cited above, §§ 50-59); Rahimi v. Greece (no. 8687/08, §§ 95-96, 5 April 2011); Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13, §§ 111-15), 22 November 2016; S.F. and Others v. Bulgaria (no. 8138/16, §§ 78-83, 7 December 2017); Khan v. France (no. 12267/16, §§ 92-95, 28 February 2019); Sh.D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia (no. 14165/16, §§ 52-62, 13 June 2019) and Moustahi v. France (no. 9347/14, §§ 65-67, 25 June 2020).", "173. It is also important to bear in mind that a child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to his or her status as an illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). Children have specific needs that are related not only to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child (see paragraph 57 above) encourages States to take appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether alone or accompanied by his or her parents (see, in this connection, Popov, § 91, and Tarakhel, § 99, both cited above).", "(ii) Application of those principles to the present case", "174. The Court notes at the outset that the applicant provided a number of pieces of evidence in support of his claims. In particular, he produced a parliamentary question submitted by a member of parliament following a visit to Cona on 16 November 2016, and the report of the non-governmental organisation Associazione Giuristi Democratici on its visit to Cona on 4 January 2017. These documents confirmed the information concerning overcrowding at the centre, the insufficient number of staff and the difficulties in accessing medical care (see paragraphs 22 et seq. above).", "175. The Government, for their part, did not dispute the information and figures presented by the applicant and confined themselves to asserting that renovations had been carried out in the reception centre to the heating, hot water, canteen service, educational and recreational activities, healthcare and staff (specifically psychologists and cultural mediators).", "176. The Court notes, however, that they did not show that these improvements had taken place before the applicant’s arrival in Cona, and that the need for such interventions rather confirms the previous insufficiency of services and facilities during the applicant’s stay there.", "177. In addition to this, the Court reiterates that, despite having declared himself to be a minor, the applicant was housed in the adult reception centre in Cona.", "178. Once there, he was subject to an age-assessment procedure, which the Court has found to have been conducted in breach of Article 8 of the Convention (see paragraph 151 above; contrast Aarabi v. Greece, no. 39766/09, §§ 43-45, 2 April 2015).", "179. The applicant was then considered to be an adult and was kept in Cona for more than four months until, following the Court’s decision to apply Rule 39 of the Rules of Court, the Italian authorities promptly ordered his transfer to a migrant centre for minors.", "180. In the Court’s view, those circumstances are in themselves problematic with regard to the applicant’s vulnerability and dignity.", "181. The Court is sensitive to the Government’s argument that Cona, a former military facility, was converted into a reception centre for migrants to deal with the massive phenomenon of migration. In this connection, it should be noted that the number of unaccompanied minors arriving in Italy dramatically increased during the period in which the facts of the case were taking place (see paragraph 126 above).", "182. That being said, the Court can only reiterate its well-established case-law to the effect that, having regard to the absolute character of Article 3, the difficulties deriving from the increased inflow of migrants and asylum-seekers, in particular for States which form the external borders of the European Union, does not exonerate member States of the Council of Europe from their obligations under this provision (see M.S.S. v. Belgium and Greece, cited above, § 223; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 122, ECHR 2012; and Khlaifia, cited above, § 184; contrast J.R. and Others v. Greece, no. 22696/16, § 137, 25 January 2018).", "183. Therefore, having regard to the length and conditions of the applicant’s stay in the adult reception centre in Cona, the Court concludes that he was subjected to inhuman and degrading treatment and that there has been a breach of Article 3 of the Convention.", "Alleged violation of Article 13 of the Convention in conjunction with Articles 3 and 8", "184. Lastly, the applicant complained that he had not been afforded an effective remedy under Italian law by which to lodge his complaints under Articles 3 and 8 of the Convention. He relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "The parties’ submissions", "(a) The applicant", "185. The applicant stated that the Italian legal system had not provided any effective remedy by which to complain about the reception conditions for asylum-seekers or the suitability of a given reception centre. Moreover, he had had no access to any legal information.", "186. He also averred that the results of the age-assessment procedure had not been disclosed to him and that no judicial decision had been issued in his case. Moreover, he stressed that the Government had failed to pinpoint any internal remedy that would have been effective in his case.", "187. As regards his reception conditions, the applicant observed that an application could be lodged with the administrative courts under Article 15 of Legislative Decree no. 142 of 2015, but only in so far as it concerned the refusal to place him in a reception facility.", "188. The applicant also submitted that an application had been lodged with the court for the attention of the guardianship judge of Venice, but that he had had no news concerning its outcome.", "(b) The Government", "189. As to the reception conditions in Cona, the Government argued in general that the applicant had had a number of legal, administrative and health measures at his disposal aimed at his protection. They further submitted that he had been given a healthcare card.", "190. The Government’s observations on this point are set out in paragraphs 104 et seq. above.", "191. They concluded by stating that the applicant’s right to an effective remedy with regard to Articles 3 and 8 of the Convention had been respected.", "The Court’s assessment", "(a) Admissibility", "192. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "(b) Merits", "The Court’s assessment", "(a) General principles", "193. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief.", "194. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective.", "195. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła v. Poland, [GC], no. 30210/96, § 157, ECHR 2000-XI; Hirsi Jamaa and Others, cited above, § 197; and Khlaifia and Others, cited above, § 268).", "(b) Application of those principles to the present case", "196. Referring to the above conclusions (see paragraphs 151 and 183 above), the Court firstly considers that the applicant clearly has an arguable complaint under the Convention. Article 13 is therefore applicable in the present case.", "197. It then observes that the Government failed to indicate any specific remedy by which the applicant could have complained about his reception conditions in Cona.", "198. Moreover, it should be noted that the remedies mentioned by the Government with specific reference to the applicant’s age-assessment procedure (see paragraph 45 above, and Article 6 § 3 of Prime Ministerial Decree no. 234 of 2016 in paragraph 55 above) turned out to be ineffective in this case (see the Court’s conclusion with regard to the Government’s objection of non-exhaustion of domestic remedies in paragraphs 104 et seq. above).", "199. It follows that there has been a violation of Article 13 taken in conjunction with Articles 3 and 8 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "200. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "201. The applicant claimed 45,000 euros (EUR) in respect of non-pecuniary damage.", "202. The Government contested this claim.", "203. Having regard to the distress and frustration incurred by the applicant stemming from the violations of the Convention set out above, the Court awards him EUR 7,500 in respect of non-pecuniary damage.", "Costs and expenses", "204. The applicant claimed EUR 21,210.93 for the costs incurred in the proceedings before the Court.", "205. The Government contested the applicant’s claims.", "206. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 4,000, covering the costs and expenses for the proceedings before the Court." ]

[ "2. The applicants were born in 1948 and 1976 respectively and live in the village of Alapars. They were granted legal aid and were represented before the Court by Mr A. Zalyan, a lawyer practising in Vanadzor, and Ms J. Evans, Ms J. Gavron, Mr P. Leach and Ms K. Levine, lawyers from the European Human Rights Advocacy Centre in London.", "3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The school incident", "5. At the material time Derenik G., aged 10, was a fourth-grade pupil at School No. 5 in Charentsavan (“the school”). According to the applicants, he was in good health.", "6. At 9.30 a.m. on 5 June 2010 the second applicant took Derenik G. to school, where a mathematics examination was scheduled to take place at 11 a.m. Before that time the children were to prepare for the examination.", "7. The form teacher, S.K., seated the pupils in the classroom and wrote down the assignments on the blackboard. She then left the classroom to have a conversation with A.A., another teacher, who was the mother of one of the pupils. According to the Government, the form teacher left the classroom for only a few minutes. The applicants disagreed that this had been the case.", "8. While the form teacher was away, the pupils had a fight, as a result of which Derenik G. was beaten up by two of his classmates, I.H. and V.H., who were brothers. During the fighting, Derenik G. and other pupils screamed loudly.", "9. Having heard the noise, the janitor entered the classroom. Thereafter, the form teacher and other teachers came in. They found Derenik G. lying unconscious on the floor. Trying to revive him, they slapped his face, performed artificial respiration, sprinkled water on his face and tried to draw out his tongue. Since Derenik G. did not regain consciousness, they took him into the corridor, where another janitor joined them in their attempts to revive him. As their attempts were unsuccessful, the janitors took Derenik G. out of the school building. After further unsuccessful attempts to bring him back to consciousness, he was taken to hospital.", "10. Derenik G. was already dead when he was admitted to hospital.", "The initial investigation", "11. On the same day the police ordered a forensic medical examination to determine the cause of Derenik G.’s death, the existence of any injuries on his body, their location and type, the time and method of their infliction and their gravity. The expert was also asked to determine whether Derenik G. had suffered from any illness while alive and, if so, in what way he had been affected by such illness, and what possible link it might have had with his death.", "12. On 12 June 2010 the police took written statements ( բացատրություն ) from A.A. (see paragraph 7 above) and S.A., a military instructor working at the school.", "In her statement, A.A. mentioned that she had asked S.K. to come out of the classroom into the corridor to talk about her daughter, who was in the same class as Derenik G. While they spoke, she and S.K. had walked to the toilets on the same floor about twenty metres from the classroom. From there, she had gone to the staff room, while S.K. had returned to the classroom.", "S.A. stated that at around 9.30 a.m. on 5 June 2010, he had been outside the school with A.Av., the sports teacher. Suddenly, they had heard noises coming from the window and ran towards the school entrance. S.A. had then seen A.Av., who had reached the entrance first, carrying Derenik G. out of the school building, together with the janitors. They had laid him down and A.Av. had performed artificial respiration and cardiac massage while S.A. had started rubbing the boy’s feet to try to improve his blood circulation. Seeing that Derenik G. was not regaining consciousness, they had taken him to the school gates to put him in an ambulance. However, because the ambulance had been slow to arrive and in order not to waste time, they had taken Derenik G. to hospital using a van parked nearby.", "13. On 6 July 2010 the forensic medical examination was completed. The expert mentioned in his report that since early childhood Derenik G. had received medical assistance on several occasions, mainly for infectious diseases. In June 2009 Derenik G. had been examined by a paediatrician. The parents had informed the paediatrician that the child had lost consciousness for no reason two weeks previously, during a sports class. They had also said that, two years earlier, he had fallen and hit his head at school, as a result of which he had lost consciousness. The paediatrician had referred Derenik G. to a children’s hospital in Yerevan for further examination, where he was eventually diagnosed with syncope (fainting) and active supervision had been recommended. Thereafter the parents had not complained of the child having fainted. The expert concluded that the cause of Derenik G.’s death was acute respiratory failure and acute oxygen deprivation, which were the consequence of a number of changes in his internal organs discovered during the forensic examination and confirmed by the forensic analysis of his tissues. The report stated that he had suffered from severe muscular dystrophy and fatty degeneration of the heart, conditions which were linked to the cause of his death. Furthermore, syncope (fainting) could have been a factor contributing to his death. A haemorrhage in the area of the left temple and cheek was also discovered. It was concluded that this had been caused by a blunt, hard object while he was still alive and was not directly linked to the cause of the death.", "14. On 15 July 2010 the first applicant enquired of the Prosecutor General whether criminal proceedings had been instituted in respect of his grandson’s death and asked to be provided with a copy of the relevant decision. He also asked to be involved in the proceedings as his grandson’s legal heir.", "15. On 21 July 2010 criminal proceedings were instituted under Article 118 of the Criminal Code in respect of the beating of Derenik G.", "16. On 26 July 2010 the first applicant was joined in the proceedings as the victim’s legal heir.", "17. On 20 August 2010 the second applicant was questioned by the investigator and stated, inter alia, that her son had been healthy. To the investigator’s question of whether there had been prior incidents of Derenik G. fainting, the second applicant mentioned two such episodes in the past. In reply to the investigator’s question as to whether she had requested Derenik G.’s teachers to be attentive towards him, the second applicant stated that she had never made such a request.", "18. In September 2010 the first applicant lodged a complaint with the Prosecutor General, requesting that criminal proceedings be instituted in respect of Derenik G.’s death and not merely in relation to the beating prior to his death. He also complained that the police had not instituted criminal proceedings promptly and had not carried out the necessary investigative measures, such as questioning the witnesses or examining the scene of the incident.", "19. On 15 September 2010 the first applicant requested that an additional forensic medical examination be conducted, on the grounds that the expert had not given conclusive answers to the questions asked. In particular, the exact time of the death and of the infliction of injuries and their gravity had not been determined and the connection between Derenik G.’s medical conditions and the cause of death had not been clearly established. In addition, the first applicant had not been provided with the decision to order a forensic medical examination and had not had an opportunity to put questions to the expert. That request was rejected.", "20. During the investigation Derenik G.’s parents questioned two of his classmates in connection with the events of 5 June 2010 and recorded their answers. The two pupils questioned mainly confirmed that they had witnessed their classmates, brothers I.H. and V.H., beating up Derenik G. The recordings were submitted to the police.", "21. On 8 October 2010 the investigator examined the recordings.", "22. On 3 November 2010 the investigator sent a letter to the Chief of the State Education Inspectorate. Referring to the need to ensure a full and objective investigation of the case, he asked the State Education Inspectorate to examine the incident of 5 June 2010 in so far as the actions of the school’s administration and the teaching staff were concerned.", "23. By a letter of 15 November 2010, the Chief of the State Education Inspectorate stated that Derenik G.’s death was not attributable to any inaction or omission on the part of the school’s administration or the teaching staff. The letter stated in particular that A.A., not finding it appropriate to have a conversation with S.K. in front of the entire class, had asked the latter to have a word outside the classroom. During S.K.’s absence several pupils, including Derenik G., had had a fight and hit each other. As to the observance of the requirement to ensure the safety of the pupils, point 1(9) of part 3 of the model contract for the provision of free schooling services between a State school and the parent of a pupil, as established by the Order of 26 December 2009 of the Minister of Education and Science (see paragraph 42 below), had been included in the internal rules of conduct of the school and the relevant contract had been signed with the parents of all pupils, including Derenik G.’s parents. The school had been renovated and the necessary conditions for ensuring the safety of the pupils were in place.", "24. On 18 November 2010 the criminal proceedings were terminated. According to the police, Derenik G. had been beaten by I.H. and V.H. during a fight while S.K. was away from the classroom. After the fight Derenik G. had approached the blackboard to see more clearly what was written there. Upon returning to his desk, he had suddenly fallen to the floor and lost consciousness. The decision then referred to S.K.’s statement that she had been outside the classroom for only five minutes. It went on to say that I.H. and V.H. could not be prosecuted under Article 118 of the Criminal Code for beating Derenik G., since they had not attained the age of criminal responsibility.", "25. On 27 November 2010 the first applicant lodged a complaint with the Prosecutor General against the investigator’s decision to terminate the criminal proceedings. His complaint was rejected.", "26. On 7 December 2010 the first applicant lodged a complaint with the Kotayk Regional Court (“the Regional Court”) disputing the decision to terminate the criminal proceedings. He argued, in particular, that Derenik G. had died as a result of a fight among the children while they had been left alone in the classroom without a teacher’s supervision. The administration had not taken any measures to prevent the fight. Also, the police had not instituted separate criminal proceedings in respect of Derenik G.’s death. Although it had been established that Derenik G. had been beaten, the causal link between the beating and his death had not been properly examined.", "27. On 18 March 2011 the Regional Court allowed the first applicant’s complaint and set aside the decision of 18 November 2010, finding that the police had failed to investigate a number of issues properly, such as the exact length of time the form teacher had been away from the classroom, the exact time when Derenik G. had been beaten, whether or not a physician had been available at the school at the time of the events, and whether it would have been possible to save his life had he received timely first aid. Also, no expert panel had carried out a forensic examination to find out the reason for the changes to Derenik G.’s internal organs and whether such changes were connected with the blows sustained by him or to determine the period of time between those changes and the time of his death, the type of intervention that would have been necessary to save his life, whether his death could have occurred in other circumstances, how his diseases might have progressed had he lived, and after how long they might have caused his death.", "28. On 7 June 2011 the Criminal Court of Appeal, upon an appeal by the prosecutor, fully upheld the Regional Court’s decision. In addition to the findings of the Regional Court, it found that the cause of Derenik G.’s death had not been established in the course of the investigation and that it was still to be determined whether the blows sustained to different parts of his body during the fight were linked to his death or not. Furthermore, the investigator had referred the matter to the State Education Inspectorate instead of making his own legal assessment of the actions of the school’s administration.", "The further investigation", "29. On 7 July 2011 the criminal proceedings were resumed.", "30. On 22 July 2011 an additional forensic medical examination by an expert panel was ordered to determine the cause of Derenik G.’s death and the injuries discovered on his body, as well as the types of diseases he had suffered from and whether those diseases were linked to his death. The expert panel was further requested to determine whether Derenik G.’s injuries, if they had resulted from him having been beaten, were directly linked to his death and whether those injuries in any way aggravated, or could have aggravated, the diseases that were directly linked to his death.", "31. On 16 November 2011 the additional forensic medical examination was completed. The relevant parts of the report issued by the expert panel read as follows:", "“... according to the results of the [initial] forensic medical examination of the body, a haemorrhage in the area of the left temple and cheek was discovered which had been caused while [Derenik G.] was still alive by a blunt, hard object, possibly as a result of one or more than one action ...", "While he was still alive, Derenik G. had suffered from tubular atrophy, mild ... infection of the liver and atrophic changes of the heart muscle which could possibly have progressed during [his] epileptic seizure of 5 June 2010 and its aftermath. The other pathological changes in his internal organs mentioned in [the expert report of 6 July 2010] ... could have developed during the epileptic seizure and upon his death.", "The medical evidence submitted and the material in the criminal case file [statements of the sport teacher and school janitors] also lead to the conclusion that in 2009 [Derenik G.] had had (two) seizures accompanied by a loss of consciousness, which, however, had not been diagnosed as epileptic seizures ..., having been recorded as syncope (fainting).", "...", "As regards the link between the blows sustained by [Derenik G.], the sudden worsening of his state of health, his loss of consciousness accompanied by a seizure and his death, it should be noted that in view of the above-mentioned pathological changes in his internal organs which occurred while he was alive, the blows coupled with [Derenik G.’s] psychological and emotional state at the given moment could have contributed to the epileptic seizure and to the development of acute respiratory failure and cardiac function disorder connected with [the seizure], which caused [his] death.”", "32. On 7 December 2011 the investigator decided to terminate the criminal proceedings. The decision stated, inter alia, that, although the conclusion of the panel of experts had established a causal link between Derenik G.’s death and his beating by I.H. and V.H., his assailants could not be prosecuted for homicide since the element of intention on their part was absent. In any event, I.H. and V.H. had not attained the age of criminal responsibility for any type of crime. The decision further stated that S.K. and the school principal had been unaware of Derenik G.’s epileptic seizures. In those circumstances they had not realised, and could not have realised, the danger inherent in their actions (or inaction).", "33. The first applicant disputed the investigator’s decision before the prosecutor, who rejected the complaint.", "34. On 9 January 2012 the first applicant lodged a complaint with the Regional Court against the investigator’s decision of 7 December 2011. He argued, in particular, that Derenik G. had died as a result of the failure on the part of the school’s administration to properly implement its duty to protect its pupils. He also complained that no separate criminal proceedings had been instituted in respect of Derenik G.’s death, notwithstanding the fact that the causal link between the beating and his death had been established.", "35. On 22 February 2012 the Regional Court granted the first applicant’s complaint and set aside the decision to terminate the criminal proceedings. It referred to its previous decision of 18 March 2011 (see paragraph 27 above) and considered that, following the reopening of the proceedings, the police had still failed to find out whether or not a physician had been available at the school at the time of the incident and whether it would have been possible to save Derenik G.’s life had he received timely first aid.", "36. On 1 March 2012 the prosecutor lodged an appeal, stating, in particular, that it had been revealed during the investigation that, in accordance with the relevant order by the director of the Charentsavan Medical Centre, one physician had been put in charge of the school in question and one other State school in Charentsavan. On the day of the events, in accordance with the schedule, the physician had been on duty at the other school.", "37. On 3 April 2012 the Criminal Court of Appeal granted the prosecutor’s appeal and quashed the Regional Court’s decision of 22 February 2012. It found, inter alia, that the police had not addressed the question of whether it would have been possible to save Derenik G.’s life had he received timely first aid from a physician for objective reasons, given the fact that on 5 June 2010 the latter had been on duty at the other school.", "38. On 3 May 2012 the first applicant lodged an appeal on points of law. He argued in detail that an effective investigation had not been carried out, mainly because the police had failed to take the necessary steps to find those responsible for Derenik G.’s death. He reiterated his previous arguments in relation to the fact that no separate criminal proceedings had been instituted in respect of Derenik G.’s death, although it had been established that the cause of the latter’s death was the beating by his classmates.", "39. On 8 June 2012 the Court of Cassation declared the first applicant’s appeal inadmissible for lack of merit." ]

[ "RELEVANT LEGAL FRAMEWORK", "40. Article 118 of the Criminal Code provides that beating or other violent actions that have not generated the consequences envisaged by Article 117 (intentional infliction of bodily harm which causes short-term deterioration of health) are punishable by a fine, the maximum amount of which is one hundred times the fixed minimum wage, or a maximum of two months’ detention.", "41. Section 22(1) of the Public Education Act of 10 July 2009 provides that, for the purpose of the implementation of the educational programme, the educational institution must ensure, inter alia, safe and secure conditions, normal work routines, medical assistance and the necessary conditions for the physical development and maintenance of the health of the pupils.", "42. The Order of 26 December 2009 of the Minister of Education and Science on establishing the model contract for the provision of free schooling services between a State school and the parent of a pupil provides an example of the contract to be signed between State schools and the parents (or legal representatives) of pupils educated in State schools. Part 3 of the model contract sets out the rights and responsibilities of the parties, including those of the school principal. Point 1(8) states that the school principal must ensure the necessary conditions for, inter alia, the maintenance of the pupils’ health. Point 1(9) states that the school principal must secure the life and safety of the pupils by implementing legitimate actions to protect them from any interference with their interests and by taking preventive measures and keeping them away from narcotic substances, explosives, begging, vagrancy and other criminal and unlawful activities. Part 6 provides that the parties bear responsibility under the law for the failure to perform their obligations in relation to, inter alia, securing the life and safety of a pupil.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "43. The applicants complained that Derenik G. had died as a result of the failure of the school’s administration and the teaching staff to properly perform their duty to protect his life and safety while he was under their supervision. They further complained that the authorities had failed to conduct an effective investigation into his death. They relied on Articles 2, 6 and 8 of the Convention.", "44. The Court, as master of the characterisation to be given in law to the facts of the case (see, among many other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), considers that it is appropriate to examine the applicant’s complaints solely under Article 2 of the Convention, the relevant part of which reads as follows:", "“1. Everyone’s right to life shall be protected by law. ...”", "Admissibility", "45. The Court notes that these complaints are neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "46. The applicants maintained that the State had failed to protect the right to life of Derenik G. The incident had occurred inside the school building and during the time when the children had been entrusted to the school’s supervision. In their view, by leaving the children unattended in the classroom and not ensuring proper medical aid and assistance on the day of the incident, the school’s authorities had failed in their duties to ensure the safety and security of the children while they were under their control. They submitted that it had been the primary duty of the school’s authorities, including S.K. as the form teacher, to ensure the proper supervision of the pupils in order to protect them from any violence to which they might be subjected during the period while they were under their supervision. However, the school’s authorities had failed to properly fulfil that duty. Furthermore, no physician or nurse had been available at the school to provide medical assistance to Derenik G. after the incident.", "The applicants further maintained that the authorities had failed to conduct an effective investigation into the circumstances of Derenik G.’s death. They argued, inter alia, that the investigation had not been accessible to them.", "47. The Government argued that the school’s authorities, including the principal of the school and the form teacher, S.K., had been unaware of Derenik G.’s health issues. In that respect they referred to the second applicant’s statement to the investigator to the effect that she had never drawn the attention of Derenik G.’s teachers to his health (see paragraph 17 above). Hence, they had not known and could not have known of the existence of a real and immediate risk to his life and could not have been expected to take special measures to prevent such a risk. The Government submitted that S.K. had been absent from the classroom for only a few minutes and she could not have supposed that a fight would happen during her absence and that, moreover, such a fight could lead to the pupil’s death on account of his diseases. The Government pointed out that immediately after the incident the teachers and other members of the school personnel had done everything possible to help Derenik G. regain consciousness. When they were unable to do so, they had taken him to the school gates and then to hospital.", "The Government further argued that the authorities had complied with their obligation to conduct an effective investigation into the circumstances of Derenik G.’s death. They submitted in that connection that the investigation had been prompt, thorough, independent and accessible to the applicants. In particular, the first applicant’s status as the victim’s legal heir in the proceedings had been recognised on 26 July 2010, five days after the criminal proceedings had been initiated. Furthermore, on the day of the incident the police had ordered a forensic medical examination. The investigator had then questioned Derenik G.’s classmates, S.K. and other teachers. Other investigative measures had also been carried out, such as an examination of the scene of the incident and the questioning of witnesses. The Government provided copies of the written statements ( բացատրություն ) of two teachers of the school, dated 12 June 2010 (see paragraph 12 above).", "The Court’s assessment", "(a) General principles", "48. The basic principles concerning a State’s positive obligation to protect the right to life under Article 2 were set out by the Grand Chamber in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 130-31, ECHR 2014) and most recently in Kurt v. Austria ([GC], no. 62903/15, §§ 157-160, 15 June 2021).", "49. The State’s positive obligation under Article 2 has been found to be engaged in the context of public education. Thus, the Court has found that school authorities have an obligation to protect the health and well-being of pupils, in particular young children, who are especially vulnerable and are under their exclusive control (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 35, 10 April 2012, and Kayak v. Turkey, no. 60444/08, § 59, 10 July 2012).", "50. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For this positive obligation to arise, it must be established that the authorities knew or ought to have known at the relevant time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (the so-called “ Osman test” – see Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII) (see Kurt, cited above, § 158). Furthermore, the assessment of the nature and level of risk constitutes an integral part of the duty to take preventive operational measures where the presence of a risk so requires. Thus, an examination of the State’s compliance with this duty under Article 2 must comprise an analysis of both the adequacy of the assessment of risk conducted by the domestic authorities and, where a relevant risk triggering the duty to act was or ought to have been identified, the adequacy of the preventive measures taken (ibid., § 159).", "51. The Court reiterates in this connection that the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided for by domestic law, it may still fulfil its positive duty by other means (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu, cited above, § 37).", "52. Furthermore, the Court has considered that the State’s duty to safeguard the right to life also requires, in the event of serious injury or death, to have in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. This obligation does not necessarily require the provision of a criminal ‑ law remedy in every case. Where negligence has been shown, for example, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts. However, Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice (see, among other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 132-33).", "(b) Application of those principles to the present case", "(i) Alleged failure of the school’s authorities to safeguard Derenik G.’s right to life", "53. In the present case, Derenik G., aged 10 at the material time, lost his life in the aftermath of a fight in the classroom during which he was beaten by two of his classmates while the class teacher had left the room (see paragraph 8 above). As was subsequently established, the cause of his death had been the development of acute respiratory failure and cardiac function disorder because of an epileptic seizure possibly linked to the beating and to his psychological and emotional state (see paragraph 31 above).", "54. The Court notes that two forensic medical examinations were ordered to determine the cause of Derenik G.’s death and related issues (see paragraphs 11 and 30 above), both of which confirmed that there had been pathological changes to his internal organs which had possibly progressed during the epileptic seizure and thereafter (see paragraphs 13 and 31).", "55. It is not disputed between the parties that the school’s authorities were unaware of Derenik G.’s particular vulnerability due to his health issues. The Court observes in this regard that the parents had sought medical advice following the second instance of Derenik G. having had fainted but he had not been diagnosed as suffering from epileptic seizures and no specific recommendations had been made (see paragraphs 13 and 31 above). In those circumstances, the school authorities had not been requested to pay particular attention to Derenik G. (see paragraph 17 above).", "56. The Government argued that, being unaware of Derenik G.’s health problems, the school authorities and staff had not known and could not have known of the existence of a real and immediate risk to his life and could not have been expected to take special measures to prevent such a risk (see paragraph 47 above).", "57. The Court reiterates the principle cited above that not every risk to life can entail for the authorities a requirement under the Convention to take operational measures to prevent that risk from materialising (see paragraph 50 above).", "58. It is common ground between the parties that the school authorities were unaware of Derenik G.’s particular vulnerability due to his health condition. It is also undisputed that no medical personnel were available in the school on the day of the incident to provide medical assistance to Derenik G. In these circumstances, the questions to be resolved by the Court are the following: firstly, whether the form teacher nevertheless knew or ought to have known that Derenik G. would be exposed to a life-threatening danger during her absence from the classroom which should have prompted her to take the necessary measures to protect his life and, secondly, whether by not ensuring the presence of medical personnel on the school premises on the day of the incident, the domestic authorities failed to take measures which might have avoided a risk to Derenik G.’s life.", "59. As regards the first question, in the Court’s opinion, a particular degree of vulnerability would need to be demonstrated in order to impose on the teacher a stringent requirement not to leave the classroom at any time and under any circumstances. In this connection, the Court reiterates its position expressed in Kayak (cited above, § 60), according to which, while in principle the educational institution is under an obligation to supervise pupils during the period they spend in its care, the members of the teaching staff cannot be expected to ensure the permanent supervision of each pupil in order to respond instantly to any unpredictable behaviour. The Court is fully cognisant of the range of risks to which children may be exposed and the paramount duty of school authorities to take supervisory measures to ensure the security of pupils and protect them from all forms of violence to which they might be subjected while under their supervision (see, for example, Kayak, cited above). However, there is nothing to suggest that on the day of the incident there existed any factors warranting special attention or measures on the part of the form teacher (compare and contrast Kayak, §§ 61-62, and Ilbeyi Kemaloğlu and Meriye Kemaloğlu, § 41, both cited above) since, as already noted, she was unaware of Derenik G.’s particular vulnerability due to his health condition (see paragraph 55 above). There is likewise nothing to suggest that any incidents of violence among the pupils had previously occurred in Derenik G.’s class. The Court, in these circumstances, considers it difficult to maintain that, by merely leaving the classroom, the form teacher could be said to have compromised Derenik G.’s safety, thereby engaging the responsibility of the school’s authorities under Article 2 of the Convention.", "60. As regards the second question, the Court observes that it already concluded that it had not been established in the present case that the school authorities knew or ought to have known at the relevant time of the existence of a real and immediate risk to Derenik G.’s life. There is therefore no call for the Court to assess the second part of the Osman test (see paragraph 50 above), namely whether the school authorities had taken the measures which could reasonably have been expected of them (see Ražnatović v. Montenegro, no. 14742/18, §§ 43-44, 2 September 2021).", "61. For these reasons, the Court considers that there are insufficient elements in the evidence before it to conclude that the school’s authorities failed to comply with their obligation under Article 2 of the Convention to provide the requisite standard of protection for Derenik G.’s life.", "Consequently, there has been no violation of Article 2 of the Convention in its substantive limb.", "(ii) Alleged ineffectiveness of the judicial response", "62. The Court notes at the outset that the applicants have resorted only to criminal-law remedies in connection with Derenik G.’s death. The Court further notes that the Government did not argue that any effective remedies were available to the applicants other than criminal proceedings. The general position in the Court’s case-law is that the form of investigation that will achieve the purposes of Article 2 may vary depending on the circumstances (see Ribcheva and Others v. Bulgaria, nos. 37801/16 and 2 others, § 139, 30 March 2021). The Court considers that, given the circumstances of the present case, an effective criminal investigation was in principle appropriate to satisfy the requirements of Article 2 of the Convention. To be seen as effective such an investigation must display the characteristics of independence, promptness, reasonable expedition, adequacy, thoroughness, objectivity and sufficient involvement of the next of kin (ibid.).", "63. The Court observes that on the day of the incident, 5 June 2010, the police ordered a forensic medical examination to determine the cause of Derenik G.’s death (see paragraph 11 above). However, it was not until 21 July 2010 (see paragraph 15 above), a month and a half after the school incident (see paragraphs 6-10 above), that the investigative authorities instituted criminal proceedings. Even then, the criminal proceedings were instituted following the first applicant’s enquiry to the Prosecutor General (see paragraph 14 above), and solely in relation to the beating. In the Court’s opinion, this inevitably narrowed the scope of the investigation, directing it towards the incident of the beating alone without it being required to properly examine the entire chain of events which led to Derenik G.’s death, including the wider issue of the responsibility of the school authorities for the incident. The Court notes in this connection that, although the decisions to terminate the criminal proceedings briefly addressed the issues relating to the possible responsibility of the school authorities, this was done in a rather perfunctory manner and with reference to a simple letter from the Chief of the State Education Inspectorate, a supervisory body acting under the Ministry of Education which is responsible for overseeing compliance by educational establishments with legal provisions in the field of public education (see paragraphs 23, 24 and 32 above).", "64. Moreover, there is nothing in the material before the Court to indicate that the investigative authorities collected evidence at the scene and questioned witnesses in a timely manner in order to shed light on the circumstances of Derenik G.’s death. Although the Government argued that the investigator had examined the scene of the incident (see paragraph 47 above), no evidence was produced to support this. Furthermore, the written statements ( բացատրություն ) of the two school staff members (see paragraph 12 above) show that their statements were obtained on 12 June 2010 – one week after the incident. There is likewise nothing to indicate that the investigating authorities carried out any other investigative measures prior to the institution of criminal proceedings.", "65. The Court further observes that it was not until Derenik G.’s parents conducted their own private investigation by questioning his classmates that it was revealed that it had been I.H. and V.H. who had beaten him during the fight in the classroom (see paragraph 20 above). Even then, having been provided with the relevant recordings of those statements on 8 October 2010, the investigator asked the State Education Inspectorate to examine the circumstances of the incident almost one month later, on 3 November 2010 (see paragraphs 21 and 22 above). The Court notes in this connection that the investigating authority was subsequently criticised by the Court of Appeal for having referred the matter to the State Education Inspectorate instead of making its own assessment of the actions of the school administration (see paragraph 28 above). Still, the investigation continued with regard to the incident of the beating alone (see paragraph 29 above). As a result, having concluded that I.H. and V.H. were not subject to prosecution, the investigating authority briefly mentioned in the decision of 7 December 2011 that the school administration could not be held liable for the incident since it had been unaware of Derenik G.’s health condition (see paragraph 32 above).", "66. However, there is nothing to indicate that the investigating authority ever examined whether the school administration had properly fulfilled its duty to look after the pupils while they were under its supervision and control so as to avoid incidents such as the one during which Derenik G. had been subjected to violence. Neither did the investigation address the issue of medical assistance in the school on the day of the incident, including whether the death could have been prevented had medical assistance been provided or the type and the time frame for such assistance, despite the fact that the Regional Court had twice drawn the investigating authority’s attention to the matter (see paragraphs 27 and 35 above). At the same time, in its decision of 3 April 2012 the Court of Appeal readily accepted the prosecution’s argument submitted in its appeal against the Regional Court’s decision of 22 February 2012 that the school physician had been absent on the day of the incident, having been on duty at another school, without any examination of whether or not the unavailability of medical assistance on the day of the incident had had the effect of compromising Derenik G.’s health condition (see paragraphs 36, 37 and 60 above). In those circumstances, the Court considers that the investigation failed to meet the requirement of thoroughness (see paragraph 62 above).", "67. Regard being had to the serious deficiencies and shortcomings discerned above, the Court is of the view that the investigation into the circumstances of the school incident which resulted in the death of Derenik G. fell short of the requirements of Article 2 of the Convention. In view of that conclusion, the Court considers it unnecessary to examine whether the other aspects of the investigation met the requirements of the Convention (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 272, 27 August 2019, and Anahit Mkrtchyan v. Armenia, no. 3673/11, § 101, 7 May 2020).", "68. There has accordingly also been a violation of Article 2 of the Convention under its procedural limb.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "69. The applicants complained that they had no effective domestic remedies at their disposal in respect of the alleged breach of Article 2 of the Convention. They relied on Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "70. The applicants initially complained in their application that the domestic authorities had failed to carry out an effective investigation into the circumstances of Derenik G.’s death. In their observations submitted on 12 February 2016 in reply to those of the Government, they complained, with reference to the same provision, that there had been no legal possibility for them under Armenian law to claim compensation for damage in a situation where no one had been found responsible for the death, despite the fact that Derenik G. had died as a result of an incident which had occurred while he was under the control of the school authorities.", "71. The Government contested the applicants’ arguments relating to the ineffectiveness of the investigation. As regards the complaint concerning the lack of legal grounds on which to claim compensation, the Government submitted that the applicants had not raised such a complaint in their initial application to the Court.", "72. The Court notes that the applicants’ complaint, in so far as it reiterates their complaint that the domestic authorities had failed to carry out an effective investigation into Derenik G.’s death, is linked to the ones examined above and must therefore likewise be declared admissible.", "73. Having regard to the findings relating to the procedural aspect of Article 2 of the Convention (see paragraphs 67 and 68 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 of the Convention (see, mutatis mutandis, Muradyan v. Armenia, no. 11275/07, § 161, 24 November 2016, and Anahit Mkrtchyan, cited above, § 105).", "74. As regards the applicants’ complaint with regard to the lack of legal grounds under Armenian law on which to claim compensation for damage suffered as a result of the death of a family member, having regard to the applicants’ initial submissions in their application (see paragraph 70 above), the Court considers that it amounts to raising a new and distinct complaint under Article 13 of the Convention (see Radomilja and Others, cited above, § 135). While nothing prevents an applicant from raising a new complaint in the course of the proceedings before the Court, such a complaint must, like any other one, comply with the admissibility requirements (ibid.).", "75. The Court notes that the domestic proceedings in the present case ended on 8 June 2012 (see paragraph 39 above). However, as noted above, the applicants raised this complaint as late as in their observations of 12 February 2016 (see paragraph 70 above), that is, outside the period of six months from the final domestic decision.", "76. Even though no plea of inadmissibility concerning compliance with the six-month rule was made by the Government in their observations (see paragraph 71 above), the Court reiterates that it is not open to it to set aside the application of the six-month rule solely because the Government have not made a preliminary objection to that effect (see, for example, Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 28-31, 29 June 2012).", "77. It follows that the applicants’ complaint under Article 13 of the Convention, in so far as it concerns their new argument that it was impossible to claim compensation for Derenik G.’s death which had occurred while he was under the control of the school’s authorities, is inadmissible under Article 35 § 1 of the Convention for non-compliance with the six-month rule and must therefore be rejected pursuant to Article 35 § 4.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "79. The applicants claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage.", "80. The Government contested their claim.", "81. Making its assessment on an equitable basis, and in view of the specific circumstances of the case, the Court awards the applicants jointly EUR 24,000 in respect of non-pecuniary damage.", "Costs and expenses", "82. The applicants were granted legal aid by the Court, and they did not seek to be reimbursed for any additional costs or expenses. Consequently, the Court makes no award under this head.", "Default interest", "83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1971 and lives in Warsaw.", "8. Since 1977 the applicant has suffered from severe myopia, the degree of which was established at - 0.2 in the left eye and - 0.8 in the right eye. Before her pregnancy, she was assessed by a State medical panel, for social- insurance purposes, as suffering from a disability of medium severity.", "9. The applicant became pregnant in February 2000. She had previously had two children, both born by Caesarean section. As the applicant was worried about the possible impact of the delivery on her health, she decided to consult her doctors. She was examined by three ophthalmologists (Dr M.S., Dr N. S. - B., Dr K.W.). It transpired from the documents submitted by the applicant that Dr M.S. had recommended that the applicant have frequent check -ups and avoid physical exertion. Dr N. S.-B. stated that the applicant should consider sterilisation after the birth. All of them concluded that, due to pathological changes in the applicant ’ s retina, the pregnancy and delivery constituted a risk to her eyesight. However, they refused to issue a certificate for the pregnancy to be terminated, despite the applicant ’ s requests, on the ground that the retina might detach itself as a result of pregnancy, but that it was not certain.", "10. Subsequently, the applicant sought further medical advice. On 20 April 2000 Dr O.R. G., a general practitioner (GP), issued a certificate stating that her third pregnancy constituted a threat to the applicant ’ s health as there was a risk of rupture of the uterus, given her two previous deliveries by Caesarean section. She further referred to the applicant ’ s short- sightedness and to significant pathological changes in her retina. These considerations, according to the GP, also required that the applicant should avoid physical strain which in any case would hardly be possible as at that time the applicant was raising two small children on her own. The applicant understood that on the basis of this certificate she would be able to terminate her pregnancy lawfully.", "11. On 14 April 2000, in the second month of the pregnancy, the applicant ’ s eyesight was examined. It was established that she needed glasses to correct her vision in both eyes by 24 dioptres.", "12. Subsequently, the applicant contacted a State hospital, the Clinic of Gynaecology and Obstetrics in Warsaw, in the area to which she was assigned on the basis of her residence, with a view to obtaining the termination of her pregnancy. On 26 April 2000 she had an appointment with Dr R.D., Head of the Gynaecology and Obstetrics Department of the clinic.", "13. Dr R.D. examined the applicant visually and for a period of less than five minutes, but did not examine her ophthalmological records. Afterwards he made a note on the back of the certificate issued by Dr O.R.G. that neither her short ‑ sightedness nor her two previous deliveries by Caesarean section constituted grounds for therapeutic termination of the pregnancy. He was of the view that, in these circumstances, the applicant should give birth by Caesarean section. During the applicant ’ s visit Dr R.D. consulted an endocrinologist, Dr B., whispering to her in the presence of the applicant. The endocrinologist co-signed the note written by Dr R.D., but did not talk to the applicant.", "14. The applicant ’ s examination was carried out in a room with the door open to the corridor, which, in the applicant ’ s submission, did not provide a comfortable environment for a medical examination. At the end of the appointment, Dr R.D. told the applicant that she could have as many as eight children if they were delivered by Caesarean section.", "15. As a result, the applicant ’ s pregnancy was not terminated. The applicant gave birth to the child by Caesarean section in November 2000.", "16. After the delivery, her eyesight deteriorated badly. On 2 January 2001, approximately six weeks after the delivery, she was taken to the emergency unit of the Ophthalmological Clinic in Warsaw. While doing a counting- fingers test, she was only able to see from a distance of three metres with her left eye and five metres with her right eye, whereas before the pregnancy she had been able to see objects from a distance of six metres. A reabsorbing vascular occlusion was found in her right eye and further degeneration of the retinal spot was established in the left eye.", "17. According to a medical certificate issued on 14 March 2001 by an ophthalmologist, the deterioration of the applicant ’ s eyesight had been caused by recent haemorrhages in the retina. As a result, the applicant is currently facing a risk of going blind. Dr M.S., the ophthalmologist who examined the applicant, suggested that she should be learning braille. She also informed the applicant that, as the changes to her retina were at a very advanced stage, there were no prospects of having them corrected by surgical intervention.", "18. On 13 September 2001 the disability panel declared the applicant to be significantly disabled, while previously she had been recognised as suffering from a disability of medium severity. It further held that she needed constant care and assistance in her everyday life.", "19. On 29 March 2001 the applicant lodged a criminal complaint against Dr R.D., alleging that he had prevented her from having her pregnancy terminated as recommended by the GP on a medical ground which constituted one of the exceptions to a general ban on abortion. She complained that, following the pregnancy and delivery, she had sustained severe bodily harm by way of almost complete loss of her eyesight. She relied on Article 156 § 1 of the Criminal Code, which lays down the penalty for the offence of causing grievous bodily harm, and also submitted that, under the applicable provisions of social - insurance law, she was not entitled to a disability pension as she had not worked the requisite number of years before the disability developed because she had been raising her children.", "20. The investigation of the applicant ’ s complaint was carried out by the Warsaw-Śródmieście district prosecutor. The prosecutor heard evidence from the ophthalmologists who had examined the applicant during her pregnancy. They stated that a safe delivery by Caesarean section had been possible.", "21. The prosecutor further requested the preparation of an expert report by a panel of three medical experts (ophthalmologist, gynaecologist and specialist in forensic medicine) from the Białystok Medical Academy. According to the report, the applicant ’ s pregnancies and deliveries had not affected the deterioration of her eyesight. Given the serious nature of the applicant ’ s sight impairment, the risk of retinal detachment had always been present and continued to exist, and the pregnancy and delivery had not contributed to increasing that risk. Furthermore, the experts found that in the applicant ’ s case there had been no factors militating against the applicant ’ s carrying her baby to term and delivering it.", "22. During the investigations neither Dr R.D. nor Dr B., who had co ‑ signed the certificate of 26 April 2000, were interviewed.", "23. On 31 December 2001 the district prosecutor discontinued the investigations, considering that Dr R.D. had no case to answer. Having regard to the expert report, the prosecutor found that there was no causal link between his actions and the deterioration of the applicant ’ s vision. He observed that this deterioration “had not been caused by the gynaecologist ’ s actions, or by any other human action”.", "24. The applicant appealed against that decision to the Warsaw regional prosecutor. She challenged the report drawn up by the experts from the Białystok Medical Academy. In particular, she submitted that she had in fact been examined by only one of the experts, namely the ophthalmologist, whereas the report was signed by all of them. During that examination use had not been made of all the specialised ophthalmological equipment that would normally be used to test the applicant ’ s eyesight. Moreover, the examination had lasted only ten minutes. The other two experts who had signed the report, including a gynaecologist, had not examined her at all.", "25. She further emphasised inconsistencies in the report. She also submitted that, before the second and third deliveries, the doctors had recommended that she be sterilised during the Caesarean section to avoid any further pregnancies. She argued that, although the deterioration of her eyesight was related to her condition, she felt that the process of deterioration had accelerated during the third pregnancy. She submitted that there had been a causal link between the refusal to terminate her pregnancy and the deterioration of her vision. The applicant also complained that the prosecuting authorities had failed to give any consideration to the certificate issued by her GP.", "26. She further pointed out that she had been unable to familiarise herself with the case file because the summaries of witnesses ’ testimonies and other documents were written in a highly illegible manner. The prosecutor, when asked for assistance in reading the file, had repeatedly refused to assist, even though he had been aware that the applicant was suffering from very severe myopia. The applicant had been unable to read the documents in the case file, which had affected her ability to exercise her procedural rights in the course of the investigation.", "27. On 21 March 2002 the Warsaw regional prosecutor, in a one-paragraph decision, upheld the decision of the district prosecutor, finding that the latter ’ s conclusions had been based on the expert report. The regional prosecutor countered the applicant ’ s argument that she had not been examined by all three experts, stating that the other two experts had relied on an examination of her medical records. He did not address the procedural issue raised by the applicant in her appeal.", "28. Subsequently, the decision not to prosecute was transmitted to the Warsaw-Śródmieście District Court for judicial review.", "29. In a final decision of 2 August 2002, not subject to a further appeal and numbering twenty-three lines, the District Court upheld the decision to discontinue the case. Having regard to the medical expert report, the court considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant ’ s vision. Furthermore, the court found that the haemorrhage in the applicant ’ s eyes had in any event been likely to occur, given the degree and nature of the applicant ’ s condition. The court did not address the procedural complaint which the applicant had made in her appeal against the decision of the district prosecutor.", "30. The applicant also attempted to bring disciplinary proceedings against Dr R.D. and Dr B. However, those proceedings were finally discontinued on 19 June 2002, the competent authorities of the Chamber of Physicians finding that there had been no professional negligence.", "31. Currently, the applicant can see objects only from a distance of approximately 1.5 metres and is afraid of going blind. On 11 January 2001 the social- welfare centre issued a certificate to the effect that the applicant was unable to take care of her children as she could not see from a distance of more than 1. 5 metres. On 28 May 2001 a medical panel gave a decision certifying that she suffered from a significant disability. She is at present unemployed and in receipt of a monthly disability pension of 560 Polish zlotys. She is raising her three children alone." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "32. Article 38 of the Constitution reads as follows:", "“ The Republic of Poland shall ensure the legal protection of the life of every human being. ”", "33. Article 47 of the Constitution reads:", "“ Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life. ”", "B. The 1993 Law on family planning ( protection of the human foetus and conditions permitting pregnancy termination ) and related statutes", "34. The Law on family planning ( protection of the human foetus and conditions permitting pregnancy termination ) (“the 1993 Act”), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”.", "35. This Act provided that legal abortion was possible only until the twelfth week of pregnancy where the pregnancy endangered the mother ’ s life or health; or prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there were strong grounds for believing that the pregnancy was a result of rape or incest.", "36. On 4 January 1997 an amended text of the 1993 Act, passed on 30 June 1996, came into force. Section 1(2) provided that “the right to life, including the prenatal stage thereof, shall be protected to the extent laid down by law”. This amendment provided that pregnancy could also be terminated during the first twelve weeks where the mother either suffered from material hardship or was in a difficult personal situation.", "37. In December 1997 further amendments were made to the text of the 1993 Act, following a judgment of the Constitutional Court given in May 1997. In that judgment the court held that the provision legalising abortion on grounds of material or personal hardship was incompatible with the Constitution as it stood at that time [1].", "38. Section 4 a of the 1993 Act, as it stands at present, reads, in its relevant part:", "“ ( 1 ) An abortion can be carried out only by a physician where", "1. pregnancy endangers the mother ’ s life or health;", "2. prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease;", "3. there are strong grounds for believing that the pregnancy is a result of a criminal act.", "(2) In the cases listed above under sub-paragraph 2, an abortion can be performed until such time as the foetus is capable of surviving outside the mother ’ s body; in cases listed under sub-paragraph 3 above, until the end of the twelfth week of pregnancy.", "( 3 ) In the cases listed under sub-paragraphs 1 and 2 above the abortion shall be carried out by a physician working in a hospital.", "...", "( 5 ) Circumstances in which abortion is permitted under subsection ( 1 ), sub-paragraphs 1 and 2, above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman ’ s life.”", "39. An Ordinance issued by the Minister of Health on 22 January 1997 on qualifications of doctors authorised to perform abortions contains two substantive sections. In its section 1, the requisite qualifications of doctors who can perform legal abortions in the circumstances specified in the 1993 Act are stipulated. Section 2 of that Ordinance reads:", "“The circumstances indicating that pregnancy constitutes a threat to the woman ’ s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman ’ s condition .”", "40. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts a doctor may, on his or her own initiative or upon a patient ’ s request and if he or she finds it reasonable in the light of requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors.", "C. Criminal offence of abortion performed in contravention of the 1993 Act", "41. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists in such a termination may be sentenced to up to three years ’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act.", "D. Provisions of the Code of Criminal Procedure", "42. A person accused in criminal proceedings, if he or she cannot afford lawyers ’ fees, may request legal aid under Article 78 § 1 of the Code of Criminal Procedure. Under Articles 87 § 1 and 88 § 1 of that Code, a victim of an alleged criminal offence is similarly entitled to request that legal aid be granted to him or her for the purpose of legal representation in the course of criminal investigations and proceedings.", "E. Offence of causing grievous bodily harm", "43. Article 156 § 1 of the Criminal Code of 1997 provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years ’ imprisonment.", "F. Civil liability in tort", "44. Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it.", "45. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom.", "G. Case-law of the Polish courts", "46. In a judgment of 21 November 2003 (V CK 167/03), the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, namely in circumstances provided for by section 4 a ( 1 ) 3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal.", "47. In a judgment of 13 October 2005 (IV CJ 161/05), the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, namely in circumstances set out by section 4a(1) 2 of the 1993 Act, gave rise to a compensation claim.", "III. RELEVANT NON-CONVENTION MATERIAL", "A. Observations of the ICCPR Committee", "48. The Committee, having considered in 1999 the fourth periodic report on the observance of the United Nations International Covenant on Civil and Political Rights submitted by Poland, adopted the following conclusions (Document CCPR/C/SR.1779):", "“11. The Committee notes with concern: (a) strict laws on abortion which lead to high numbers of clandestine abortions with attendant risks to life and health of women; (b) limited accessibility for women to contraceptives due to high prices and restricted access to suitable prescriptions; (c) the elimination of sexual education from the school curriculum; and (d) the insufficiency of public family planning programmes. (Arts. 3, 6, 9 and 26)", "The State Party should introduce policies and programmes promoting full and non-discriminatory access to all methods of family planning and reintroduce sexual education at public schools.”", "49. The Polish government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated:", "“ 106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Non-governmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts from 80,000 to 200,000 annually.", "107. It follows from the Government ’ s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations that the Law ’ s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health- care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians ’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions. ”", "50. The Committee, having considered Poland ’ s fifth periodic report at its meetings held on 27 and 28 October and 4 November 200 4, adopted in its concluding observations (Document CCPR/C/SR.2251) the following relevant comments:", "“ 8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned. ...", "The State Party should liberalise its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on parental awareness is discussed in Parliament.”", "B. Observations of non-governmental organisations", "51. In a report prepared by ASTRA Network on Reproductive Health and Rights in Central and Eastern Europe for the European Population Forum, Geneva, held on 12 to 14 January 2004, it is stated that :", "“ The anti-abortion law which was in force in Poland since 1993 resulted in many negative consequences for women ’ s reproductive health, such as:", "– many women who are entitled to legal abortions are often denied this right in their local hospitals;", "– abortions on social grounds are not stopped but simply pushed ‘ underground ’, as women seeking abortions can find a doctor who would perform it illegally or go abroad;", "– the effects of the law are felt primarily on the poorest and uneducated members of the society, as illegal abortions are expensive.", "Lack of knowledge about family planning lowers women ’ s quality of life. Their sexuality is endangered either by constant fear of unwanted pregnancies or by seeking unsafe abortion [s].", "There is a strong disapproval and obstruction toward [ s ] those who choose abortions under the few conditions that still allow for it to occur. Doctors and hospitals frequently misguide or misinform women, who are legally entitled to terminate pregnancies, thereby placing the health of the women at serious risk.", "Doctors (and even whole hospitals, even though they have no right to do so) often refuse [ to perform ] abortion [ s ] in hospitals they work in, [ invoking the ] so - called clause of conscience – the right to refuse [ to perform ] abortion [ s ] due to one ’ s religious beliefs or moral objections – or even giving no justifications, creating problems as long ... as it is needed to make performing [ an ] abortion impossible under the law. There exists however a well organised abortion underground – terminations are performed illegally in private [ clinics ], very often by the same doctors who refuse [ to perform ] abortions in hospitals. The average cost of [an] abortion is ca 2000 [Polish zlotys] (equivalent [to the] country ’ s average gross salary). [The] Federation for Women and Family Planning estimates that the real number of abortions in Poland amounts to 80,000 to 200,000 each year.”", "C. Synthesis Report of the European Union Network of Independent Experts on Fundamental Rights", "52. In its report entitled “Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2004” dated 15 April 2005, the Network stated, inter alia :", "“While acknowledging that there is [as] yet no settled case-law in international or European human rights law concerning where the adequate balance must be struck between the right of the [woman ] to interrupt her pregnancy on the one hand, as a particular manifestation of the general right to the autonomy of the person underlying the right to respect for private life, and the protection of the potentiality of human life on the other hand, the Network nevertheless expresses its concern at a number of situations which, in the view of the independent experts, are questionable in the present state of the international law of human rights.", "A woman seeking abortion should not be obliged to travel abroad to obtain it, because of the lack of available services in her home country even where it would be legal for her to seek abortion, or because, although legal when performed abroad, abortion in identical circumstances is prohibited in the country of residence. This may be the source of discrimination between women who may travel abroad and those who, because of a disability, their state of health, the lack of resources, their administrative situation, or even the lack of adequate information ... may not do so. A [ woman ] should not be seeking abortion because of the insufficiency of support services, for example for young mothers, because of lack of information about support which would be available, or because of the fear that this might lead to the loss of employment: this requires, at the very least, a close monitoring of the pattern of abortions performed in the jurisdictions where abortion is legal, in order to identify the needs of the persons resorting to abortion and the circumstances which ought to be created in order to better respond to these needs. ... Referring to the Concluding Observations adopted on 5 November 200 4 by the Human Rights Committee upon the examination of the report submitted by Poland under the International Covenant on Civil and Political Rights (CCPR/CO/82/POL/Rev. 1, para. 8), the Network notes that a prohibition on non -therapeutic abortion or the practical unavailability of abortion may in fact have the effect of raising the number of clandestine abortions which are practised, as the women concerned may be tempted to resort to clandestine abortion in the absence of adequate counselling services who may inform them about the different alternatives opened to them. ...", "Where a State does choose to prohibit abortion, it should at least closely monitor the impact of this prohibition on the practice of abortion, and provide this information in order to feed into an informed public debate. Finally, in the circumstances where abortion is legal, women should have effective access to abortion services without any discrimination.”", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "53. Pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted.", "54. In this connection, the Government argued that the applicant had failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention.", "55. The Government referred to the Court ’ s case-law to the effect that there were certain positive obligations under the Convention which required States to draw up regulations compelling hospitals to adopt appropriate measures for the protection of their patients ’ lives. They also required an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession could be determined and those responsible made accountable ( see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V ). That positive obligation did not necessarily require the provision of a criminal ‑ law remedy in every case. In the specific sphere of medical negligence the obligation could, for instance, also be satisfied if the legal system afforded victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I ).", "56. The Government further asserted that the Polish legal system provided for legal avenues which made it possible to establish liability on the part of doctors for any damage caused by medical malpractice, either by way of criminal proceedings or by civil compensation claims. In the applicant ’ s case, a compensation claim would have offered good prospects of success.", "57. The Government referred in that connection to the provisions of the Civil Code governing liability in tort. They further referred to two judgments given by the civil courts against the background of the 1993 Act. In the first judgment, given by the Supreme Court on 21 November 2003, the court had held that the unlawful refusal to terminate a pregnancy caused by rape had given rise to a compensation claim. In the second the Łomża Regional Court had dismissed, on 6 May 2004, a claim for non-pecuniary damages filed by parents who had been refused access to prenatal tests and whose child had been born with serious malformations.", "58. The applicant submitted that, under the Court ’ s case-law, she should not be required to have recourse both to civil and criminal remedies in respect of the alleged violation of Article 8 of the Convention. If there was more than one remedy available, the applicant need not exhaust more than one ( see Yağcı and Sargın v. Turkey, 8 June 1995, §§ 42-44, Series A no. 319 ‑ A ). She further referred to a judgment in which the Court had found that the applicants, having exhausted all possible means available to them in the criminal- justice system, were not required, in the absence of a criminal prosecution in connection with their complaints, to embark on another attempt to obtain redress by bringing an action for damages ( see Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports of Judgments and Decisions 19 98 ‑ VIII ).", "59. The applicant argued that pursuing civil proceedings would not be effective in her case. To date, there had been no final judgment of a Polish court in a case in which compensation had been awarded for damage to a woman ’ s health caused by a refusal of a therapeutic abortion allowed under the 1993 Act. She emphasised that the two cases referred to by the Government post - dated her petition to the Court under Article 34 of the Convention. Importantly, they were immaterial to her case because they concerned situations fundamentally different from the applicant ’ s, both as to the facts and law : one related to a claim for damages arising from the unlawful refusal of an abortion where the pregnancy had been caused by rape; the second concerned a claim for damages arising from the refusal of a prenatal examination.", "60. Finally, she pointed out that under the Court ’ s case-law it was for an applicant to select the legal remedy most appropriate in the circumstances of the case ( see Airey v. Ireland, 9 October 1979, § 23, Series A no. 32 ). Effective deterrence against grave attacks on personal integrity (such as rape in M.C. v. Bulgaria, no. 39272/98, ECHR 2003-XII ), where fundamental values and essential aspects of private life were at stake, required the effective application of criminal-law provisions ( ibid., §§ 124, 148 ‑ 53, and X and Y v. the Netherlands, 26 March 1985, §§ 23- 24, Series A no. 91 ). In the circumstances, the criminal remedy chosen by the applicant was the most appropriate one.", "61. The Court reiterates that, in its decision on the admissibility of the application, it joined to the merits of the case the examination of the question of exhaustion of domestic remedies (see paragraph 4 above). The Court confirms its approach to the exhaustion issue.", "II. THE MERITS OF THE CASE", "A. Alleged violation of Article 3 of the Convention", "62. The applicant complained that the facts of the case gave rise to a breach of Article 3 of the Convention which, in so far as relevant, reads as follows:", "“No one shall be subjected to ... inhuman or degrading treatment ... ”", "63. The Government disagreed.", "64. The applicant submitted that the circumstances of the case had amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.", "65. She argued that treatment was degrading if it aroused in its victim “feelings of fear, anguish and inferiority capable of humiliating and debasing them” ( see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25 ). The failure of the State to make a legal abortion possible in circumstances which threatened her health, and to put in place the procedural mechanism necessary to allow her to have this right realised, meant that the applicant was forced to continue with a pregnancy for six months knowing that she would be nearly blind by the time she gave birth. The resultant anguish and distress and the subsequent devastating effect of the loss of her eyesight on her life and that of her family could not be overstated. She had been a young woman with a young family already grappling with poor eyesight and knowing that her pregnancy would ruin her remaining ability to see. As predicted by her doctor in April 2000, her eyesight has severely deteriorated, causing her immense personal hardship and psychological distress.", "66. The Court reiterates its case-law on the notion of ill-treatment and the circumstances in which the responsibility of a Contracting State may be engaged, including under Article 3 of the Convention by reason of the failure to provide appropriate medical treatment ( see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000 ‑ VII, mutatis mutandis ). In the circumstances of the instant case, the Court finds that the facts alleged do not disclose a breach of Article 3. The Court further considers that the applicant ’ s complaints are more appropriately examined under Article 8 of the Convention.", "B. Alleged violation of Article 8 of the Convention", "67. The applicant complained that the facts of the case had given rise to a breach of Article 8 of the Convention. Her right to due respect for her private life and her physical and moral integrity had been violated both substantively, by failing to provide her with a legal therapeutic abortion, and as regards the State ’ s positive obligations, by the absence of a comprehensive legal framework to guarantee her rights.", "Article 8 of the Convention, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "1. The parties ’ submissions", "( a ) The Government", "68. The Government first emphasised that pregnancy and its interruption did not, as a matter of principle, pertain uniquely to the sphere of the mother ’ s private life. Whenever a woman was pregnant, her private life became closely connected with the developing foetus. There could be no doubt that certain interests relating to pregnancy were legally protected ( see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports ( DR ) 10, p. 100). Polish law also protected the foetus and therefore allowed for termination of a pregnancy under the 1993 Act only in strictly defined circumstances. The Government were of the view that, in the applicant ’ s case, the conditions for lawful termination on health grounds as defined by that Act had not been satisfied.", "69. The Government argued that in so far as the applicant had submitted that her pregnancy had posed a threat to her eyesight because of her severe myopia, only a specialist in ophthalmology could decide whether an abortion was medically advisable. The ophthalmologists who had examined the applicant during her pregnancy had not considered that her pregnancy and delivery constituted any threat to her health or life. The intention of the doctors had actually been to protect the applicant ’ s health. They had concurred in their opinions that the applicant ’ s child should be delivered by Caesarean section, which had ultimately happened.", "70. The Government stressed that there existed a delivery possibility which had not posed any threat to the applicant ’ s health. Hence, under the 1993 Act the doctors had not been authorised to issue a medical certificate permitting abortion. Consequently, the applicant had been unable to obtain an abortion as her situation had not complied with the conditions laid down by that Act.", "71. In so far as the applicant argued that no procedure was available under the Polish law to assess the advisability of a therapeutic abortion, the Government disagreed. They referred to the provisions of the Minister of Health ’ s Ordinance of 22 January 1997 and argued that this Ordinance provided for a procedure governing decisions on access to a therapeutic abortion.", "72. The Government further stated that section 37 of the 1996 Medical Profession Act made it possible for a patient to have a decision taken by a doctor as to the advisability of an abortion reviewed by his or her colleagues. Lastly, had the applicant been dissatisfied with decisions given in her case by the doctors, she could have availed herself of the possibilities provided for by administrative law.", "73. The Government concluded that it was open to the applicant to challenge the medical decisions given in her case by having recourse to procedures available under the law.", "( b ) The applicant", "74. The applicant disagreed with the Government ’ s argument that, under the case ‑ law of the Convention institutions, the legal protection of life afforded by Article 2 extended to foetuses. Under that case-law, “[t]he life of the foetus [ was ] intimately connected with, and [ could not ] be regarded in isolation of, the life of the pregnant woman” ( see X. v. the United Kingdom, no. 8416/79, Commission decision of 13 May 1980, DR 19, p. 244). The Court itself had observed that legislative provisions as to when life commenced fell within the State ’ s margin of appreciation, but it had rejected suggestions that the Convention ensured such protection. It had noted that the issue of such protection was not resolved within the majority of the Contracting States themselves and that there was no European consensus on the scientific and legal definition of the beginning of life ( see Vo v. France [GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII ).", "75. The applicant complained that the facts of the case had given rise to a breach of Article 8 of the Convention. As to the applicability of this provision, the applicant emphasised that the facts underlying the application had concerned a matter of “private life”, a concept which covered the physical and moral integrity of the person ( see X and Y v. the Netherlands, cited above, § 22).", "76. The applicant argued that in the circumstances of the present case her Article 8 rights had been violated both substantively, by failing to provide her with a legal abortion, and with respect to the State ’ s positive obligations, by the absence of a comprehensive legal framework to guarantee her rights by appropriate procedural means.", "77. As to the first limb of this complaint, the applicant argued that the very special facts of this case had given rise to a violation of Article 8. She had been seeking to have an abortion in the face of a risk to her health. The refusal to terminate the pregnancy had exposed her to a serious health risk and amounted to a violation of her right to respect for her private life.", "78. The applicant countered the Government ’ s suggestion that her condition had not been such as to meet the requirements for a lawful abortion on the medical grounds set forth in section 4 a of the 1993 Act, in that it had not been established that the deterioration of her vision after the delivery had been a direct result of the pregnancy and birth. She stressed that this issue had, in any event, been irrelevant for the assessment of the case because the 1993 Act provided that it was merely the threat to the pregnant woman ’ s health which made an abortion legal. The actual materialisation of such a threat was not required.", "In any event, and regrettably, in the applicant ’ s case this threat had materialised and brought about a severe deterioration of her eyesight after the delivery.", "79. The applicant further emphasised that the interference complained of had not been “ in accordance with the law ” within the meaning of Article 8 of the Convention. Section 4 a of the 1993 Act allowed a termination where the continuation of a pregnancy constituted a threat to the mother ’ s life or health. Hence, the applicant had had a legal right under Polish law to have an abortion on health grounds.", "80. As to the second limb of her complaint, relating to the positive obligations of the State, the applicant considered that the facts of the case had disclosed a breach of the right to effective respect for her private life. The State had been under a positive obligation to provide a comprehensive legal framework regulating disputes between pregnant women and doctors as to the need to terminate a pregnancy in cases of a threat to a woman ’ s health. However, there was no effective institutional and procedural mechanism by which such cases were to be adjudicated and resolved in practice.", "81. The applicant emphasised that the need for such a mechanism had been and remained acute. The provisions of the 1997 Ordinance and of the 1996 Medical Profession Act, relied on by the Government, had not provided clarity because all these provisions had been drafted in the broadest terms. They provided that doctors could make referrals for therapeutic abortion, but gave no details as to how that process worked or within what time frame. Critically, there had been no provision for any meaningful review of, or scope for challenge of, a doctor ’ s decision not to make a referral for termination.", "82. The applicant further stressed that section 4 a of the 1993 Act, in so far as it contained an exemption from the rule that abortion was prohibited, related to a very sensitive area of medical practice. Doctors were hesitant to perform abortions necessary to protect the health of a woman because of the highly charged nature of the abortion debate in Poland. Furthermore, they feared damage to their reputation if it was found out that they had performed a termination in circumstances provided for under section 4 a. They might also fear criminal prosecution.", "83. The applicant argued that as a result of the State ’ s failure to put in place at least some rudimentary decision-making procedure, the process in her case had not been fair and had not afforded due respect for her private life and her physical and moral integrity.", "84. The applicant submitted that the onus was on the State to ensure that medical services required by pregnant women and available in law were available in practice. The legal system in Poland, viewed as a whole, had been operating with the opposite effect, offering a strong disincentive to the medical profession to provide the abortion services that were available in law. The flexibility that the law appeared to afford in determining what constituted a “ threat to a woman ’ s health ” within the meaning of section 4 a of the 1993 Act and the lack of adequate procedures and scrutiny contrasted with the strict approach under the criminal law penalising doctors for carrying out unlawful abortions.", "85. The applicant contended that in the present case where there had been a fundamental disagreement between her, a pregnant woman fearful of losing her eyesight as a result of a third delivery, and doctors, it had been inappropriate and unreasonable to leave the task of balancing fundamental rights to doctors exclusively. In the absence of any provision for a fair and independent review, given the vulnerability of women in such circumstances, doctors would practically always be in a position to impose their views on access to termination, despite the paramount importance their decisions have for a woman ’ s private life. The circumstances of the case revealed the existence of an underlying systemic failure of the Polish legal system when it came to determining whether or not the conditions for lawful abortion obtained in a particular case.", "2. The third- party interveners ’ submissions", "( a ) The Center for Reproductive Rights", "86. The Center for Reproductive Rights submitted, in its comments to the Court of 23 September 2005, that the central issue in the present case was whether a State Party which had by law afforded women a right to choose abortion in cases where pregnancy threatened their physical health, but failed to take effective legal and policy steps to ensure that eligible women who made that choice could exercise their right, violated its obligations under Article 8 of the Convention. It was of the opinion that States undertaking to allow abortion in prescribed circumstances have a corresponding obligation to ensure that the textual guarantee of abortion in their national laws is an effective right in practice. To that end, States should take effective steps to ensure women ’ s effective access to services. These steps include the institution of procedures for appeal or review of medical decisions denying a woman ’ s request for abortion.", "87. Poland ’ s lack of effective legal and administrative mechanisms providing for appeal or review of medical professionals ’ decisions in cases where they determine that the conditions for termination of pregnancy have not been met were inconsistent with the practice of many other member States. The establishment of an appeals or review process in countries across Europe, such as Bulgaria, Croatia, the Czech Republic, Denmark, Finland, Norway, Slovakia, Slovenia or Sweden, reflected a common understanding of the need to protect women ’ s right to legal abortion in situations where a health- care provider denies such a request, including in cases where a woman ’ s health was at risk.", "88. Most laws and regulations on abortion appeals processes had strict time ‑ limits within which such appeals and reviews had to be decided, recognising the inherent time-sensitive nature of abortion procedures and the inability of regular administrative review or other legal processes to respond in a timely manner. While such time limitations implicitly obliged the medical professional denying the request for abortion to forward medical records of a woman immediately to the review or appeals body, some laws had explicit language requiring doctors to do so. In certain countries the appeals or review body had to inform the woman where the abortion would be performed should her appeal be granted. Where an appeal or review body found that the conditions for a termination of pregnancy had not been met, some laws required a written notice to the woman of the decision. In all countries, appeals procedures did not need to be followed when pregnancy posed a threat to the health or life of the pregnant woman. In certain member States, such as Norway and Sweden, a rejected request for abortion was automatically examined by a review body. In Norway, a committee was formed by the county medical officer, which also includes the pregnant woman.", "89. They indicated that the legislation of many member States contained express language underscoring a woman ’ s rights to dignity and autonomous decision ‑ making within the context of requests for and provision of abortion services. They referred to Norwegian and French legislation which strongly emphasised the woman ’ s autonomy and active participation throughout the process in which access to abortion was decided.", "90. They concluded that in Poland the lack of a timely appeals process undermined women ’ s right to have access to reproductive health care, with potentially grave consequences for their life and health. It also denied women the right to an effective remedy as guaranteed by Article 13 of the Convention.", "( b ) The Polish Federation for Women and Family Planning and the Polish Helsinki Foundation for Human Rights", "91. The Polish Federation for Women and Family Planning and the Polish Helsinki Foundation for Human Rights stated, in their submissions of 6 October 2005, that the case essentially concerned the issue of inadequate access to therapeutic abortion which was permissible when one of the conditions enumerated in section 4 a of the 1993 Act was met. They emphasised that it often happened in practice in Poland that physicians refused to issue a certificate required for a therapeutic abortion, even when there were genuine grounds for issuing one. It was also often the case that when a woman obtained a certificate, the physicians to whom she went to obtain an abortion questioned its validity and the competence of the physicians who issued it and eventually refused the service, sometimes after the time-limit for obtaining a legal abortion set by law had expired.", "92. The fact that under Polish law abortion was essentially a criminal offence, in the absence of transparent and clearly defined procedures by which it had to be established that a therapeutic abortion could be performed, was one of the factors deterring physicians from having recourse to this medical procedure. Hence, the chances of negative decisions in respect of therapeutic abortion were high.", "93. There were no guidelines as to what constituted a “ threat to a woman ’ s health or life ” within the meaning of section 4 a. It appeared that some physicians did not take account of any threat to a woman ’ s health as long as she was likely to survive the delivery of a child. In addition, there was a problem with assessing whether a pregnancy constituted a threat to a woman ’ s health or life in cases of women suffering from multiple and complex health problems. In such situations it was not clear who should be recognised as a specialist competent to issue the medical certificate referred to in section 2 of the 1997 Ordinance.", "94. The Polish law did not foresee effective measures to review refusals of abortion on medical grounds. As a result, women denied an abortion on health grounds did not have any possibility of consulting an independent body or to have such decisions reviewed.", "95. To sum up, the current practice in Poland as regards the application of the guarantees provided for by section 4a of the 1993 Act ran counter to the requirements of Article 8 of the Convention.", "( c ) The Forum of Polish Women", "96. The Forum of Polish Women argued, in its submissions of 3 November 2005, that the rights guaranteed by Article 8 of the Convention imposed on the State an obligation to refrain from arbitrary interference, but not an obligation to act. This provision of the Convention aimed essentially to protect an individual against arbitrary activities of public authorities ( see Kroon and Others v. the Netherlands, 27 October 199 4, § 31, Series A no. 297 ‑ C ). For that reason alone, it was not possible to derive from this provision an obligation to have medical interventions performed, in particular when the medical intervention consisted of abortion.", "97. It further asserted that in the context of abortion it could not be said that pregnancy belonged exclusively to the sphere of private life. Even assuming that the legal issues involved in pregnancy could be assessed under Article 8 of the Convention, the States could enact legal restrictions in the private sphere if such restrictions served the aim of protecting morals or the rights and freedoms of others. In the hitherto interpretation of this provision, the Court had not challenged the view that the rights of the foetus should be protected by the Convention.", "98. In particular, the Court had not ruled out the possibility that in certain circumstances safeguards could be extended to the unborn child (see Vo, cited above, § 85). The Polish legal system ensured constitutional protection of the life of the foetus, based on the concept that a human life has to be legally protected at all stages of development. The 1993 Act accepted exceptions to this principle of legal protection of human life from the moment of conception.", "99. However, contrary to the applicant ’ s arguments, under the applicable Polish legislation, there was no right to have an abortion, even when exceptions from the general prohibition on abortion provided by section 4 a of the 1993 Act were concerned. This provision had not conferred on a pregnant woman any right to abortion, but only abrogated the general unlawfulness of abortion under Polish law in situations of conflict between the foetus ’ s right to life and other interests. In any event, the mere fact that abortion was lawful in certain situations, as an exception to a general principle, did not justify a conclusion that it was a solution preferred by the State.", "100. The intervener further argued that under the 1997 Ordinance the determination of the conditions in which abortion on medical grounds could be performed was left to medical professionals. Circumstances indicating that pregnancy constituted a threat to a woman ’ s life or health had to be attested by a consultant specialising in the field of medicine relevant to the woman ’ s condition. However, a gynaecologist could refuse to perform an abortion on grounds of conscience. Therefore, a patient could not bring a doctor to justice for refusing to perform an abortion and hold him or her responsible for a deterioration in her health after the delivery.", "101. Finally, it was of the view that a threat of the deterioration of a pregnant woman ’ s health resulting from pregnancy could not be concluded retrospectively if it had occurred after the birth of a child.", "( d ) The Association of Catholic Families", "102. The Association of Catholic Families argued, in its observations of 20 December 2005, that the applicant had erred in law in her contention that the Convention guaranteed a right to abortion. In fact, the Convention did not guarantee such a right. On the contrary, Article 2 guaranteed the right to life, which was an inalienable attribute of human beings and formed the supreme value in the hierarchy of human rights. Further, the Court in its case ‑ law opposed the right to life to any hypothetical right to terminate life ( see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III).", "3. The Court ’ s assessment", "( a ) The scope of the case", "103. The Court notes that in its decision on admissibility of 7 February 2006, it declared admissible the applicant ’ s complaints under Articles 3, 8, 13, and 14 taken in conjunction with Article 8. Thus, the scope of the case before the Court is limited to the complaints which it has already declared admissible (see, among many authorities, Sokur v. Ukraine, no. 29439/02, § 25, 26 April 2005).", "104. In this context, the Court observes that the applicable Polish law, the 1993 Act, while prohibiting abortion, provides for certain exceptions. In particular, under section 4a ( 1 ) 1 of that Act, abortion is lawful where pregnancy poses a threat to the woman ’ s life or health, as certified by two medical certificates, irrespective of the stage reached in pregnancy. Hence, it is not the Court ’ s task in the present case to examine whether the Convention guarantees a right to have an abortion.", "( b ) Applicability of Article 8 of the Convention", "105. The Court first observes that it is not disputed between the parties that Article 8 is applicable to the circumstances of the case and that it relates to the applicant ’ s right to respect for her private life.", "106. The Court agrees. It first reiterates that legislation regulating the interruption of pregnancy touches upon the sphere of private life, since whenever a woman is pregnant her private life becomes closely connected with the developing foetus ( see Brüggemann and Scheuten, cited above, Commission ’ s report, p. 100 ).", "107. The Court also reiterates that “private life” is a broad term, encompassing, inter alia, aspects of an individual ’ s physical and social identity, including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world (see, among many other authorities, Pretty, cited above, § 61). Furthermore, while the Convention does not guarantee as such a right to any specific level of medical care, the Court has previously held that private life includes a person ’ s physical and psychological integrity and that the State is also under a positive obligation to secure to its citizens their right to effective respect for this integrity ( see Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.) no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-I; Nitecki v. Poland (dec.), no. 656 53/01, 21 March 2002; and, mutatis mutandis, Odièvre v. France [GC], no. 42326/98, ECHR 2003 ‑ III). The Court notes that in the case before it a particular combination of different aspects of private life is concerned. While the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must – in case of a therapeutic abortion – also be assessed against the positive obligations of the State to secure the physical integrity of mothers ‑ to ‑ be.", "108. The Court finally observes that the applicant submitted that the refusal of an abortion had also amounted to an interference with her rights guaranteed by Article 8. However, the Court is of the view that the circumstances of the applicant ’ s case and in particular the nature of her complaint are more appropriately examined from the standpoint of the respondent State ’ s above-mentioned positive obligations alone.", "( c ) General principles", "109. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and in particular that it is proportionate to one of the legitimate aims pursued by the authorities (see, for example, Olsson v. Sweden ( no. 1), 24 March 1988, § 67, Series A no. 130 ).", "110. In addition, there may also be positive obligations inherent in an effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, cited above, § 23 ).", "111. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both the negative and positive contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts, the State enjoys a certain margin of appreciation (see, among other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290, and Różański v. Poland, no. 55339/00, § 61, 18 May 2006).", "112. The Court observes that the notion of “respect” is not clear cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case. Nonetheless, for the assessment of positive obligations of the State it must be borne in mind that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II; Carbonara and Ventura v. Italy, no. 24638/94, § 63, ECHR 2000 ‑ VI; and Capital Bank AD v. Bulgaria, no. 49429/99, § 133, 24 November 2005 ). Compliance with requirements imposed by the rule of law presupposes that the rules of domestic law must provide a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82, and, more recently, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000 ‑ XI).", "113. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32 ). While Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision ‑ making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests ( see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 99, ECHR 2003 ‑ VIII).", "( d ) Compliance with Article 8 of the Convention", "114. When examining the circumstances of the present case, the Court must have regard to its general context. It notes that the 1993 Act prohibits abortion in Poland, providing only for certain exceptions. A doctor who terminates a pregnancy in breach of the conditions specified in that Act is guilty of a criminal offence punishable by up to three years ’ imprisonment (see paragraph 4 1 above).", "According to the Polish Federation for Women and Family Planning, the fact that abortion was essentially a criminal offence deterred physicians from authorising an abortion, in particular in the absence of transparent and clearly defined procedures determining whether the legal conditions for a therapeutic abortion were met in an individual case.", "115. The Court also notes that in its fifth periodic report to the ICCPR Committee, the Polish government acknowledged, inter alia, that there had been deficiencies in the manner in which the 1993 Act had been applied in practice (see paragraph 49 above). This further highlights, in the Court ’ s view, the importance of procedural safeguards regarding access to a therapeutic abortion as guaranteed by the 1993 Act.", "116. A need for such safeguards becomes all the more relevant in a situation where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, either between the pregnant woman and her doctors, or between the doctors themselves. In the Court ’ s view, in such situations the applicable legal provisions must, first and foremost, ensure clarity of the pregnant woman ’ s legal position.", "The Court further notes that the legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility under Article 156 § 1 of the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case. The provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this effect. Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.", "117. In this connection, the Court reiterates that the concepts of lawfulness and the rule of law in a democratic society command that measures affecting fundamental human rights be, in certain cases, subject to some form of procedure before an independent body competent to review the reasons for the measures and the relevant evidence (see, among other authorities, Rotaru v. Romania [GC], no. 28341/95, §§ 55-63, ECHR 2000 ‑ V ). In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedures ( see AGOSI v. the United Kingdom, 24 October 1986, § 55, Series A no. 108, and, mutatis mutandis, Jokela v. Finland, no. 28856/95, § 45, ECHR 2002 ‑ IV). In circumstances such as those in issue in the instant case, such a procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body should also issue written grounds for its decision.", "118. In this connection the Court observes that the very nature of the issues involved in decisions to terminate a pregnancy is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are timely so as to limit or prevent damage to a woman ’ s health which might be occasioned by a late abortion. Procedures in which decisions concerning the availability of lawful abortion are reviewed post factum cannot fulfil such a function. In the Court ’ s view, the absence of such preventive procedures in the domestic law can be said to amount to the failure of the State to comply with its positive obligations under Article 8 of the Convention.", "119. Against this general background, the Court observes that it is not in dispute that the applicant suffered from severe myopia from 1977. Even before her pregnancy she had been officially certified as suffering from a disability of medium severity (see paragraph 8 above).", "Having regard to her condition, during her third pregnancy the applicant sought medical advice. The Court observes that a disagreement arose between her doctors as to how the pregnancy and delivery might affect her already fragile vision. The advice given by the two ophthalmologists was inconclusive as to the possible impact of the pregnancy on the applicant ’ s condition. The Court also notes that the GP issued a certificate stating that her pregnancy constituted a threat to her health, while a gynaecologist was of a contrary view.", "The Court stresses that it is not its function to question the doctors ’ clinical judgment as regards the seriousness of the applicant ’ s condition ( see, mutatis mutandis, Glass, cited above, § 87). Nor would it be appropriate to speculate, on the basis of the medical information submitted to it, on whether their conclusions as to whether her pregnancy would or would not lead to a deterioration of her eyesight in the future were correct. It is sufficient to note that the applicant feared that the pregnancy and delivery might further endanger her eyesight. In the light of the medical advice she obtained during the pregnancy and, significantly, the applicant ’ s condition at that time, taken together with her medical history, the Court is of the view that her fears cannot be said to have been irrational.", "120. The Court has examined how the legal framework regulating the availability of a therapeutic abortion in Polish law was applied to the applicant ’ s case and how it addressed her concerns about the possible negative impact of pregnancy and delivery on her health.", "121. The Court notes that the Government referred to the Ordinance of the Minister of Health of 22 January 1997 (see paragraph 71 above). However, the Court observes that this Ordinance only stipulated the professional qualifications of doctors who could perform a legal abortion. It also made it necessary for a woman seeking an abortion on health grounds to obtain a certificate from a physician “specialising in the field of medicine relevant to [her] condition”.", "The Court notes that the 1997 Ordinance provides for a relatively simple procedure for obtaining a lawful abortion based on medical considerations: two concurring opinions of specialists other than the doctor who would perform an abortion are sufficient. Such a procedure allows for taking relevant measures promptly and does not differ substantially from solutions adopted in certain other member States.", "However, the Ordinance does not distinguish between situations in which there is full agreement between the pregnant woman and the doctors – where such a procedure is clearly practicable – and cases where disagreement arises between the pregnant woman and her doctors, or between the doctors themselves. The Ordinance does not provide for any particular procedural framework to address and resolve such controversies. It only obliges a woman to obtain a certificate from a specialist, without specifying any steps that she could take if her opinion and that of the specialist diverged.", "122. It is further noted that the Government referred also to section 37 of the 1996 Medical Profession Act (see paragraph 72 above). This provision makes it possible for a doctor, in the event of any diagnostic or therapeutic doubts, or upon a patient ’ s request, to obtain a second opinion of a colleague. However, the Court notes that this provision is addressed to members of the medical profession. It only specifies the conditions in which they could obtain a second opinion of a colleague on a diagnosis or on the treatment to be followed in an individual case. The Court emphasises that this provision does not create any procedural guarantee for a patient to obtain such an opinion or to contest it in the event of disagreement. Nor does it specifically address the situation of a pregnant woman seeking a lawful abortion.", "123. In this connection, the Court notes that in certain State Parties various procedural and institutional mechanisms have been put in place in connection with the implementation of legislation specifying the conditions governing access to a lawful abortion (see paragraphs 86 ‑ 87 above).", "124. The Court concludes that it has not been demonstrated that Polish law as applied to the applicant ’ s case contained any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in her case. It created for the applicant a situation of prolonged uncertainty. As a result, the applicant suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health.", "125. The Court is further of the opinion that the provisions of the civil law on tort as applied by the Polish courts did not afford the applicant a procedural instrument by which she could have vindicated her right to respect for her private life. The civil- law remedy was solely of a retroactive and compensatory character. It could only, if the applicant had been successful, have resulted in the courts granting damages to cover the irreparable damage to her health which had come to light after the delivery.", "126. The Court further notes that the applicant requested that criminal proceedings against Dr R.D. be instituted, alleging that he had exposed her to grievous bodily harm by his refusal to terminate her pregnancy. The Court first observes that for the purposes of criminal responsibility it was necessary to establish a direct causal link between the acts complained of – in the present case, the refusal of an abortion – and the serious deterioration of the applicant ’ s health. Consequently, the examination of whether there was a causal link between the refusal of leave to have an abortion and the subsequent deterioration of the applicant ’ s eyesight did not concern the question whether the pregnancy had constituted a “threat” to her health within the meaning of section 4 a of the 1993 Act.", "Crucially, the examination of the circumstances of the case in the context of criminal investigations could not have prevented the damage to the applicant ’ s health from arising. The same applies to disciplinary proceedings before the organs of the Chamber of Physicians.", "127. The Court finds that such retrospective measures alone are not sufficient to provide appropriate protection for the physical integrity of individuals in such a vulnerable position as the applicant ( see Storck v. Germany, no. 61603/00, § 150, ECHR 2005 ‑ V ).", "128. Having regard to the circumstances of the case as a whole, it cannot therefore be said that, by putting in place legal remedies which make it possible to establish liability on the part of medical staff, the Polish State complied with the positive obligations to safeguard the applicant ’ s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion.", "129. The Court therefore dismisses the Government ’ s preliminary objection and concludes that the authorities failed to comply with their positive obligations to secure to the applicant the effective respect for her private life.", "130. The Court concludes that there has been a breach of Article 8 of the Convention.", "C. Alleged violation of Article 13 of the Convention", "131. The applicant complained that the facts of the case gave rise to a breach of Article 13 of the Convention.", "Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "132. The Government submitted that Polish law provided for a procedure governing medical decisions concerning abortion on medical grounds. They referred to the 1993 Act and to the Ordinance of the Minister of Health of 22 January 1997. They further referred to section 37 of the 1996 Medical Profession Act. They argued that it provided for the possibility of reviewing a therapeutic decision taken by a specialist.", "133. The applicant submitted that the Polish legal framework governing the termination of pregnancy had proved to be inadequate. It had failed to provide her with reasonable procedural protection to safeguard her rights guaranteed by Article 8 of the Convention.", "134. Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131 ). In the present case, there has been a finding of a violation of Article 8, and the complaint under Article 13 must therefore be considered.", "135. However, the Court observes that the applicant ’ s complaint about the State ’ s failure to put in place an adequate legal framework allowing for the determination of disputes arising in the context of the application of the 1993 Act in so far as it allowed for legal abortion essentially overlaps with the issues which have been examined under Article 8. The Court has found a violation of this provision on account of the State ’ s failure to meet its positive obligations. It holds that no separate issue arises under Article 13 of the Convention.", "D. Alleged violation of Article 14 of the Convention taken in conjunction with Article 8", "136. The applicant complained that the facts of the case gave rise to a breach of Article 14 of the Convention taken in conjunction with Article 8. In her case, Article 8 was applicable and therefore Article 14 could be relied on.", "Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "1. The parties ’ submissions", "(a) The applicant", "137. The applicant pointed out that the Court had repeatedly held that the accessory nature of Article 1 4 of the Convention meant that a complaint about discrimination had to fall within the scope of a Convention right.", "138. The applicant further argued that she had not been given a meaningful opportunity to participate in the investigations, despite the fact that the prosecuting authorities had been fully aware of the problems with her eyesight. It was her near-blindness which had formed the very basis of her complaint that a criminal offence had been committed. In such a situation, she argued, the failure to provide her with effective access to the documents of the criminal investigation or another form of assistance had prevented her from participating effectively in the proceedings.", "The applicant was of the view that the investigation carried out by the authorities had been characterised by a number of important failings. Firstly, the first-instance prosecutor had not heard evidence from a crucial witness in the case, namely Dr R.D. Secondly, the prosecutor ’ s decision to discontinue the investigation had relied heavily on the report submitted by three experts from the Białystok Medical Academy. However, this report could not be viewed as reliable as it had been prepared on the basis of a short examination of the applicant by only one of the experts ( an ophthalmologist). The other two experts had limited themselves to an examination of the applicant ’ s medical records. Thirdly, the applicant had effectively been precluded from exercising her procedural rights, such as submitting requests to obtain evidence in support of her complaint. This had been caused by the authorities ’ failure to accommodate in any way the applicant ’ s disability which had prevented her from reading the case file of the investigation. Fourthly, the district prosecutor had not given any consideration to the certificate issued by the GP, Dr O. R. G., and had failed to consider the fact that the doctors had recommended sterilisation to the applicant before the second and third delivery.", "The applicant submitted that the reasoning of the second ‑ instance prosecutor had failed to address essential arguments which she had raised in her appeal. The authorities had attached little weight to her particular vulnerability as a disabled person suffering from a very severe eyesight impairment bordering on blindness. She maintained that, as a result, she had not been involved in the investigation to a degree sufficient to provide her with the requisite protection of her interests.", "139. The applicant concluded that the failure of the authorities to accommodate reasonably her disability during the investigations had amounted to discrimination on the ground of her disability.", "(b) The Government", "140. The Government argued firstly that a violation of substantive rights and freedoms protected by the Convention would first have to be established before a complaint of a violation of Article 14 taken in conjunction with a substantive provision of the Convention could be examined.", "141. The Government were further of the view that the investigations of the applicant ’ s complaint that a criminal offence had been committed in connection with the refusal to perform an abortion were conducted with diligence. The prosecutor had questioned all witnesses who could submit evidence relevant to the case. The prosecutor had not interviewed Dr R.D. because he had not considered it necessary in view of the fact that three experts had stated in their opinion that there had been no causal link between the refusal to terminate the pregnancy and the subsequent deterioration of the applicant ’ s eyesight.", "142. The Government argued that the decision to discontinue the investigations had been justified since it had been based on that expert opinion. They stressed in this connection that the experts had been acquainted with the applicant ’ s medical records.", "143. The Government further submitted that on 6 June 2001 the applicant had been informed by the prosecutor of her rights and obligations as a party to criminal proceedings. Thus, she had known that if she had had any problem examining the case file because of her bad eyesight, she could at any stage of the proceedings have applied for a legal aid lawyer to be assigned to the case.", "2. The Court ’ s assessment", "144. The Court, having regard to its reasons for finding a violation of Article 8 above and for rejecting the Government ’ s preliminary objection, does not consider it necessary to examine the applicant ’ s complaints separately under Article 14 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "145. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "146. The applicant argued that the outcome of the events complained of had been extremely severe. She had become almost blind and had been officially declared to be significantly disabled. She needed constant care and assistance in her everyday life. She had also been told that her condition was irreversible. The loss of her eyesight had had a devastating effect on her ability to take care of her children and to work.", "147. The applicant claimed compensation for pecuniary damage in the amount of 36,000 euros (EUR) (144,000 Polish zlotys (PLN) ). This sum consisted of the estimated future medical expenses she would be obliged to bear in connection with her condition. She estimated her expenditure on adequate medical treatment to be approximately PLN 300 per month. This amount covered regular medical visits, at a cost of approximately PLN 140 per visit, and also medication (including antidepressants) which the applicant was required to take in order to prevent a further deterioration of her condition. The total expenditure has been estimated on the basis of the assumption of a life expectancy of 79 years in Poland as adopted by the World Health Organisation.", "148. The applicant further requested the Court to award her compensation in the amount of EUR 40,000 for the non ‑ pecuniary damage she had suffered, which consisted of pain, suffering, distress and anguish she had experienced and continued to experience in connection with the circumstances complained of.", "149. The Government were of the view that the applicant had not sustained pecuniary damage in the amount claimed, which was purely speculative and exorbitant. It was impossible to assess the medical expenses, if any, that would be incurred by the applicant in the future.", "150. As to the applicant ’ s claim for non ‑ pecuniary damage, the Government submitted that it was excessive and should therefore be rejected.", "151. The Court observes that the applicant ’ s claim for pecuniary damage was based on the alleged negative impact on her health suffered as a result of the refusal to terminate the pregnancy. In this connection, it notes that it has found that it cannot speculate on whether the doctors ’ conclusions as to whether the applicant ’ s pregnancy would or would not lead to a future deterioration of her eyesight were correct (see paragraph 11 9 above). Consequently, the Court rejects the applicant ’ s claim for just satisfaction for pecuniary damage.", "152. On the other hand, the Court, having regard to the applicant ’ s submissions, is of the view that she must have experienced considerable anguish and suffering, including fear about her physical capacity to take care of another child and to ensure its welfare and happiness, which would not be satisfied by a mere finding of a violation of the Convention. Having regard to the circumstances of the case seen as a whole and deciding on an equitable basis, the Court awards the applicant EUR 25,000 for non ‑ pecuniary damage.", "B. Costs and expenses", "153. The applicant claimed reimbursement of the costs and expenses incurred in the proceedings before the Court. The applicant had instructed two Polish lawyers and two lawyers from Interights, the International Centre for the Legal Protection of Human Rights in London, to represent her before the Court.", "154. She argued that it had been well-established in the Court ’ s case ‑ law that costs could reasonably be incurred by more than one lawyer and that an applicant ’ s lawyers could be situated in different jurisdictions ( see Kurt v. Turkey, 25 May 1998, Reports 1998 ‑ III, and Yaşa v. Turkey, 2 September 1998, Reports 1998 ‑ VI ). Certain consequences flow from the involvement of foreign lawyers. The fee levels in their own jurisdiction may be different from those in the respondent State. In Tolstoy Miloslavsky v. the United Kingdom, the Court stated that “given the great differences at present in rates of fees from one Contracting State to another, a uniform approach to the assessment of fees ... does not seem appropriate” ( 13 July 1995, § 77, Series A no. 316 ‑ B).", "155. The applicant claimed, with reference to invoices her lawyers had submitted, EUR 10,304 in respect of fees and costs incurred in connection with work carried out by Ms Gąsiorowska and Ms Wilkowska-Landowska. The legal fees, in the amount of EUR 10,050, corresponded to 201 hours spent in preparation of the applicant ’ s submissions in the case, at an hourly rate of EUR 50. The applicant further submitted that the costs incurred in connection with the case, in the amount of EUR 254, consisted of travel expenses and accommodation for Ms Wilkowska -Landowska in connection with the hearing held in the case. The applicant further claimed reimbursement, again with reference to an invoice, of legal fees and costs incurred in connection with work carried out by Ms Coomber and Ms Vandova, in the total amount of EUR 11,136. The legal fees corresponded to 98 hours spent in preparation of the applicant ’ s submissions, at an hourly rate of EUR 103. 60. The total amount of legal fees claimed by the applicant was therefore EUR 21,1 8 6. The applicant relied on invoices of legal fees submitted to the Court. Further costs, in the amount of EUR 959, consisted of travel expenses and accommodation incurred in connection with the hearing held in the case before the Strasbourg Court.", "156. The Government requested the Court to decide on the reimbursement of legal costs and expenses only in so far as these costs and expenses were actually and necessarily incurred and were reasonable as to quantum. The Government further submitted that the applicant had not submitted invoices in respect of accommodation costs or travel expenses claimed by her representatives. In any event, the Government were of the view that the amounts claimed by the applicant were exorbitant, bearing in mind the costs awarded by the Court in similar cases.", "157. The Government also requested the Court to assess whether it was reasonable for the applicant to receive reimbursement of legal costs and expenses borne by four lawyers.", "158. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX). In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred.", "159. As to the amounts concerned, the Court first points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case (see, among many other authorities, The Sunday Times v. the United Kingdom ( Article 50), 6 November 1980, § 30, Series A no. 38 ). The Court notes, in this connection, that the issues involved in the present case have given rise to a heated and ongoing legal debate in Poland. It further refers to its finding in its admissibility decision that the issues linked to the exhaustion of domestic remedies were complex enough to be examined together with the merits of the case (see paragraph 61 above). It is also relevant to note in this connection the scarcity of relevant case-law of the Polish courts. The Court is further of the view that the Convention issues involved in the case were also of considerable novelty and complexity.", "160. On the whole, having regard both to the national and the Convention law aspects of the case, the Court is of the opinion that they justified recourse to four lawyers.", "161. On the other hand, while acknowledging the complexity of the case, the Court is however not persuaded that the number of hours ’ work claimed by the applicant can be said to be a fair reflection of the time actually required to address the issues raised by the case. As to the hourly rates claimed, the Court is of the view that they are consistent with domestic practice in both jurisdictions where the lawyers representing the applicant practise and cannot be considered excessive.", "162. However, the Court notes that all four lawyers attended the hearing before the Court. It does not consider that this part of the expenses can be said to have been “necessarily” incurred, given that the applicant had been granted legal aid for the purpose of the proceedings before the Court.", "163. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicant a global sum of EUR 14,000 in respect of fees and expenses. This amount is inclusive of any value-added tax which may be chargeable, less the amount of EUR 2,442.91 paid to the applicant by the Council of Europe in legal aid.", "C. Default interest", "164. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1973.", "7. Early in December 2001 the applicant visited Dr S.B. in a hospital in T., in the region covered by the then Małopolska Regional Medical Insurance Fund (replaced later by the countrywide National Health Fund). Having performed an ultrasound scan, Dr S. B. estimated that the applicant was in the 6 th or 7 th week of pregnancy.", "8. On 2 January 2002, in the 11 th week of her pregnancy, the applicant – who was at that time 29 years old, was married and had two children – was registered as a pregnant patient in her local clinic.", "9. On 23 January and 20 February 2002 ultrasound scans were performed, in the 14 th and 18 th weeks of the applicant ’ s pregnancy. On the latter date Dr S.B. estimated that it could not be ruled out that the foetus was affected with some malformation and informed the applicant thereof. The applicant told him that she wished to have an abortion if the suspicion proved true.", "10. The Government submitted that in January and February 2002 the applicant had visited Dr S.B. at a private clinic. They argued that such an institution had no right to issue a referral to any public health institution.", "11. The applicant disagreed. She first submitted that at the material time Dr S.B. worked both at a public hospital in T. – where she had visited him in December 2001 and in February 2002, after the second scan – and at a non-public clinic. She further submitted that the Polish health care system was composed of so-called public health units and non-public health units. The latter, most often being first contact and basic care institutions, had financing contracts with the public National Health Fund (and had had such contracts with its predecessors, the Regional Medical Insurance Funds, at the material time). Medical services available in non-public clinics were partly financed by public funds, constituted by premiums paid by all persons covered by the universal system of health insurance. Doctors working for non-public units had the same rights and duties to provide health care to patients as doctors employed by public units, including a right to refer a patient to a public unit.", "12. Subsequently, the applicant went to a hospital in T. The results of a third ultrasound scan performed in that hospital confirmed the likelihood that the foetus was suffering from some malformation. A genetic examination by way of amniocentesis was recommended by Dr O., in order to confirm or dispel this suspicion. [1]", "13. On 28 February 2002 the applicant had another ultrasound scan in a private clinic in Łódź. She had no referral from Dr S.B. and had therefore to pay for the service herself. Under the applicable laws, her expenditure could not be reimbursed. The results of that scan confirmed the likelihood that the foetus was affected with an unidentified malformation. Genetic tests were recommended again.", "14. She was subsequently received by Professor K.Sz. in Łódź, a specialist in clinical genetics. A genetic test was again recommended. Professor K.Sz. recommended that the applicant should obtain a formal referral from her family doctor, S.B., to have the test carried out in a public hospital in Łódź, which was outside her region covered by the then Universal Medical Insurance Fund.", "Subsequently, Dr S.B. refused to issue a referral, because in his view the foetus ’ condition did not qualify the applicant for an abortion under the provisions of the 1993 Act (see paragraph 6 6 below).", "15. The Government submitted that no reference to the possibility of the foetus being affected with Edwards syndrome had ever been made.", "16. The applicant disagreed. She submitted that during that visit she was told that the scan gave rise to a suspicion of either Edwards or Turner syndrome. [2]", "17. In the first week of March 2002 the applicant and her husband visited Dr S.B. during his night duty at the hospital in T. They demanded termination of the pregnancy. He refused and indicated that the results of the ultrasound scan could not be treated as a sole ground for diagnosis that the foetus was affected with severe malformation. He proposed having a panel of doctors from the same hospital review his decision. The applicant refused.", "18. On 11 March 2002 the applicant was admitted to a public hospital in T. , within her region covered by the National Health Insurance Fund, and requested advice. She was told that a decision on termination could not be taken at that hospital and was referred to a university hospital in Kraków, to a pathological pregnancies ward, in another region of the Fund, for further diagnosis (“ w celu dalszej diagnostyki ”).", "19. During the applicant ’ s stay in the hospital in T. a hospital lawyer was asked to give an opinion with a view to ensuring that the laws on the availability of legal abortion were respected. The applicant was also told that termination of pregnancy would entail a serious risk to her life and that the two caesarean births which she had previously had constituted the most important risk factor in deciding whether she should have a genetic test at all.", "20. On 14 March 2002, immediately after being discharged from the T. hospital, the applicant travelled 150 kilometres to Kraków. She went to see Dr K.R. at Kraków University Hospital. He criticised her for contemplating a termination. She was also informed that the hospital categorically refused to carry out abortions and that no abortions had ever been performed there for the last 15 0 years. She was also refused a genetic examination, Dr K.R. being in the opinion that it was not necessary in her case. She stayed in the hospital for three days and had another ultrasound scan performed, the results of which were inconclusive. Urine and blood tests were also performed. She was discharged on 16 March 2002. The applicant ’ s discharge record stated that the foetus was affected with developmental abnormalities (“ wady rozwojowe płodu ”). The same was stated in a medical certificate signed by Dr K.R. He recommended genetic testing in order to establish the character of the ailment.", "21. On 21 March 2002 the applicant again contacted Professor K. Sz., who had examined her in February. Another ultrasound scan performed in a private clinic where Professor K.SZ. received patients confirmed the suspicion of malformation. The applicant obtained a referral from the professor to the Mother and Child Hospital in Łódź, but he informed her that he was in fact not competent to issue it. The professor told her that in order to have a genetic test carried out in Łódź, which was outside her region, she needed a referral issued by a doctor practising in her region and, in addition, an approval by a regional insurance fund, together with an undertaking that it would reimburse the costs of the test to the regional fund where the test was to be performed. The professor advised her to report to the Łódź hospital as an emergency patient, claiming that she was about to miscarry, as it was likely that she would then be admitted to that hospital.", "22. Subsequently, on 22 March 2002, the applicant asked Dr K.R. for a referral.", "The Government submitted that Dr K.R. could not have referred the applicant for a genetic test in Kraków because neither the University Hospital nor any other hospital in Kraków carried out such tests as a routine procedure. The applicant disagreed. She submitted that Dr K.R. had told her that she would not obtain the referral for testing because if the results were positive she would want to have an abortion.", "23. Afterwards, on the same day, she again unsuccessfully asked Dr S.B. for a referral to the Łódź hospital.", "24. The Government submitted that the applicant had obtained from him a referral to the same Kraków University Hospital where she had already been hospitalised between 11 and 14 March. The applicant disagreed and submitted that no referral had been issued to her.", "The Court notes this discrepancy in the parties ’ submissions and notes that no copy of that referral has been submitted to it.", "25. On 24 March 2002 the applicant went to the Łódź Mother and Child Hospital.", "26. The Government submitted that she had gone to the hospital with a referral issued by Professor K. Sz.", "27. The applicant disagrees. She submits that she had gone to that hospital without a referral, as advised, and had been admitted as an emergency patient.", "28. A genetic test (amniocentesis) was performed there on 26 March 2002, in the 23 rd week of pregnancy, and the applicant was told that she had to wait two weeks for the results.", "29. The Government submitted that the tests were carried out despite the fact that the applicant had not sought from the Małopolska section of the medical insurance fund any approval for financing them.", "30. The applicant was discharged from the Łódź hospital on 28 March 2002. Before the results were available, on 29 March 2002 the applicant, increasingly desperate as by then she was very afraid that the foetus was suffering from severe genetic abnormalities, reported to the T. hospital, where she submitted a written request for an abortion. Dr G.S. told her that he could not take such a decision himself. He had to speak with the consultant.", "31. By a letter of 29 March 2002 the applicant requested the hospital in T. to terminate the pregnancy, referring to the provisions of the 1993 Act. She requested that in case of a negative reply it should be made in writing “as soon as possible”.", "32. On 3 April 200 2 the applicant went to that hospital again and was told that the consultant could not see her because he was ill. The visit was rescheduled for 10 April 2002. On the same day she wrote a letter of complaint to the director of the T. hospital, submitting that she had not received adequate treatment and that she felt that the doctors were intentionally postponing all decisions in her case so that she would be unable to obtain an abortion within the time-limit provided for by law.", "33. On 9 April 2002 she again requested doctors at the T. hospital to carry out an abortion. She referred to the results of the genetic tests which she had received on that date. The certificate, established by Professor K.Sz., confirmed that the karyotype indicated the presence of Turner syndrome. The certificate further read:", "“A chromosomal aberration and an ultrasound image were established, indicating the presence of congenital defects which can have a serious impact on the child ’ s normal development. Further handling of the case under the provisions of the 1993 law on termination of pregnancy can be envisaged. A relevant decision should be taken with due regard to the parents ’ opinion”.", "The doctors in the T. hospital refused to carry out an abortion, Dr G.S. telling her that it was too late by then as the foetus was able at that stage to survive outside the mother ’ s body.", "34. On 11 April 2002 the applicant again complained in writing to the Director of the T. hospital about the manner in which her case had been handled and about the procrastination on the part of Dr G.S.", "35. In April 2002 the applicant and her husband submitted a number of complaints to various health care system institutions. In a reply from the Ministry of Health, dated 16 May 2002, it was stated that “it was impossible to establish on the basis of the available documents why the genetic tests were postponed until 28 February 2002 when the foetus had already become capable of surviving outside the mother ’ s body.”", "36. On 29 April 2002 she received a reply from the T. hospital to her complaints of 29 March 2002 and 3 April 2002. The letter contained an account of the facts of the case and quoted provisions of the 1993 Act. No assessment of the lawfulness of the conduct of the medical staff involved was made.", "37. On 11 July 2002 the applicant gave birth to a baby girl affected with Turner syndrome.", "38. On 31 July 2002 the applicant requested the prosecuting authorities to institute criminal proceedings against the persons involved in handling her case. She alleged serious failure on the part of the doctors, acting as public agents, to safeguard her interests protected by law, on account of their failure to perform timely prenatal examinations. As a result, the applicant had been denied information on the foetus ’ condition and, consequently, divested of the possibility to decide for herself whether or not she wished to terminate her pregnancy in the conditions provided for by law, and she had been forced to continue it.", "39. On 16 December 2002 the Tarnów District Prosecutor discontinued the investigations, finding that no criminal offence had been committed. The prosecutor relied on an expert opinion prepared by the Białystok Medical University, according to which under the 1993 Act legal abortion was possible only when foetal malformation was severe. It was not possible to assess whether malformations of a foetus were severe enough to justify an abortion until the foetus was able to live on its own outside the mother ’ s body. It concluded that in the applicant ’ s case an abortion would have been possible until the 23 rd week of pregnancy. The applicant appealed.", "40. On 22 January 2003 the Regional Prosecutor allowed her appeal and ordered that the investigation be re-opened. Additional medical evidence was taken during the investigation. On 5 December 2003 the prosecutor again discontinued the investigation, finding that no criminal offence had been committed.", "41. The applicant appealed, complaining, inter alia, that the prosecuting authorities had failed to address the critical issue of whether, in the circumstances of the case, genetic tests should have been carried out in order to obtain a diagnosis of the foetus ’ condition. Instead the investigation had focused on whether or not the applicant had a right to an abortion under the applicable law.", "42. Ultimately, on 2 February 2004, the competent court upheld the decision of the prosecuting authorities. The court held that doctors employed in public hospitals did not have the quality of “public servants ”, which in the circumstances of the case was a necessary element for the commission of the criminal offence of breach of duty by a public servant.", "43. On 11 May 2004 the applicant filed a civil lawsuit with the Kraków Regional Court against doctors S.B., G.S. and K.R. and against the Krakow and T. hospitals. She argued that the doctors dealing with her case had unreasonably procrastinated in their decision on her access to genetic tests and had thereby failed to provide her with reliable and timely information about the foetus ’ condition. They had also failed to establish the foetus ’ condition in time for her to make an informed decision as to whether or not to terminate the pregnancy. As a result of an unjustified delay in obtaining relevant information she had been divested of the possibility of exercising an autonomous choice as to her parenthood.", "The applicant further argued that the laws in force authorised abortion in specific situations. However, that right had been denied her as a result of difficulties in obtaining timely access to genetic tests and the lengthy delay before she had ultimately obtained such access.", "The applicant referred to section 4 (a) 1.2 of the 1993 Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act and to Articles 23 and 24 of the Civil Code guaranteeing so ‑ called personal rights.", "The applicant argued that the circumstances in which the determination of her access to genetic testing had been decided had breached her personal rights and dignity and had deeply humiliated her. No regard had been had to her views and feelings.", "She also claimed compensation from Dr S.B. for hostile and disparaging statements about her character and conduct which he had made in a press interview about her case. He had disclosed to the public details about her and the foetus ’ health covered by medical secret and told the journalist that the applicant and her husband were bad and irresponsible parents.", "44. She claimed just satisfaction in a total amount of PLN 11 0,000 for breach of her rights as a patient and her personal rights. She also sought a declaration that the three medical establishments were responsible in respect of future costs to be borne by the applicant in connection with her daughter ’ s treatment.", "45. On 28 October 2004 the Tarnów District Court found S.B. guilty of having disclosed to the public, in an interview he had given to the press, information covered by medical secrecy, including the fact that she had envisaged the termination of the pregnancy. It conditionally discontinued the proceedings against him and fixed a period of probation.", "46. On 19 October 2005 the Kraków Regional Court awarded the applicant PLN 10,000 against S.B., finding that in a press interview published in November 2003 he had disclosed information relating to the applicant ’ s health and private life in connection with her pregnancy. He had also made disrespectful and hurtful comments about the applicant ’ s conduct and personality.", "47. The court dismissed the remaining claims which she had lodged against doctors G.S. and K.R. and against the hospitals. The courts found that the applicant ’ s personal and patient ’ s rights had not been breached by either of these doctors or the hospitals. There had been no procrastination on the doctors ’ part in the applicant ’ s case. Under the World Health Organisation standards termination was permissible only until the 23 rd week of pregnancy, whereas the applicant had reported to the hospitals concerned when she was already in the 23 rd week of pregnancy, and on 11 April 2002 she had been in the 24 th week. Hence, neither her right to decide about her parenthood nor her rights as a patient had been breached in such a way as to place the defendants at fault.", "48. On 12 December 2005 the applicant appealed. She submitted that the right to health-related information was protected both by Article 24 of the Civil Code, providing for legal protection of personal rights, and by section 19 of the Medical Institutions Act of 1992. In her case doctors S.B., K.R. and G.S. had been of the view that genetic tests were relevant to establishing the foetus ’ condition, but had not given her the necessary referral. K.R. had not been able to cite any legal basis for his refusal. G.S. had stated before the court that he had not issued a referral because the applicant had not asked for one. However, it was for a doctor with the required professional knowledge to decide what tests were called for in a given medical situation. The testimony given by the defendants had clearly shown that their conduct in the case had failed to comply with the applicable legal provisions. The doctors had tried to shift the responsibility for the way in which her case had been handled to the applicant, despite the obvious fact that the fundamental responsibility for the proper handling of a medical case lay with them as health professionals. The doctors had also been well aware, as shown by the evidence which they had given, that the applicant had been desperate, in reaction to information that the foetus might be affected with a genetic disorder.", "49. The applicant submitted that the doctors ’ conduct had breached the law, in particular section 2 (a) of the 1993 Act in so far as it imposed on the authorities an obligation to ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem, or of an incurable life ‑ threatening ailment. The applicant had therefore had such a right, clearly provided for by the applicable law, but the defendants had made it impossible for her to enjoy that right.", "50. On 28 July 2006 the Kraków Court of Appeal dismissed the applicant ’ s appeal and upheld the first-instance judgment, endorsing the conclusions of the lower court.", "51. On 11 July 2008 the Supreme Court allowed her cassation appeal, quashed the judgment of the appellate court in its entirety on grounds of substance and ordered that the case be re-examined.", "The Supreme Court observed that the applicant ’ s claim was two-pronged: it was based firstly on the failure to refer her for genetic testing and, secondly, on the breach of her right to take an informed decision which resulted from this failure.", "52. As to the first part of her claim, the Supreme Court observed that it was not open to doubt (and had been confirmed by an expert opinion prepared for the purposes of the criminal investigation) that only genetic testing could confirm or dispel suspicions that the foetus was affected with Turner syndrome. The doctors concerned had known of the procedure. They were obliged, under the Medical Institutions Act 1992 ( ustawa o zakładach opieki zdrowotnej ), insofar as it guaranteed patients ’ rights, to refer the applicant for genetic testing of their own motion, without her asking for it. Under the same Act, the applicant had a legally protected right to obtain adequate information about the foetus ’ health. Had the doctors had conscientious objections to issuing a referral, they should have informed the applicant thereof and referred her to another practitioner who would have referred her for the testing, in accordance with the applicable laws on the medical profession governing the relevant procedure, but they had failed to do so.", "53. The procedures governing the carrying out of genetic tests and their financing by various parts of the then Medical Insurance Fund, applicable at the material time, could not be validly relied on as exempting doctors from issuing a referral, in particular as those procedures were not of a statutory character and could not be plausibly relied on to justify restricting the applicant ’ s rights as a patient. The obligation to refer the applicant had not, contrary to the courts ’ position, ended on the date when legal abortion of a foetus affected with suspected malformation was no longer possible ( that is, after the 22 nd week), since there were no legal – or medical – grounds on which to automatically link genetic testing with access to legal abortion. Furthermore, at the material time there had been no temporal limitation in law on the carrying out of these tests during pregnancy. It was only in 2004 that an ordinance had been enacted under which genetic testing became available only until the 22 nd week of pregnancy.", "54. The Supreme Court considered that there were therefore good reasons to accept that the doctors dealing with the applicant ’ s case had breached her personal rights within the meaning of Article 24 of the Civil Code and her patient ’ s rights guaranteed by the Medical Institutions Act. They had been aware that only genetic testing was capable of determining the foetus ’ genetic situation, but had still refused a referral; instead they had sent her for various tests carried out in a hospital setting which were not relevant to such a diagnosis.", "Moreover, the lower courts had erred in their finding that the applicant had not suffered non-pecuniary damage as a result of the doctors ’ acts. Such damage had been caused by the distress, anxiety and humiliation she had suffered as a result of the manner in which her case had been handled.", "55. As to the second part of the applicant ’ s claim, the Supreme Court observed that it transpired from the case- law of the Supreme Court (IV CK 161/05, judgment of 13 October 2005; see paragraph 8 0 below ) that a right to be informed about the foetus ’ health and to take informed decisions, in the light of that information, as to whether to continue the pregnancy or not was a personal right within the meaning of the Civil Code. If a child affected with a genetic problem was born as a result of failure to carry out genetic testing, a claim for just satisfaction ( zadośćuczynienie ) arose on the parent ’ s part. The lower courts had erred in that they had found that there was no adequate causal link between the doctors ’ conduct in the applicant ’ s case and the fact that she had not had access to legal abortion. In this respect the court noted that there had been enough time between the 18 th week of the pregnancy, when the suspicions had arisen, and the 22 nd, when the time-limit for legal abortion had expired, to carry out genetic testing. When the tests had finally been carried out, the applicant had received the results two weeks later. The tests should therefore have been carried out immediately after the suspicions had arisen, but instead, as a result of procrastination on the part of doctors S.B., G.S. and K. R., they had ultimately been conducted much later.", "56. The court finally held that the amount of PLN 10,000 to be paid by doctor S. B. for denigrating statements he had made in a press interview about the applicant was, in the circumstances of the case, manifestly inadequate.", "57. Hence, the judgment had to be quashed and the case remitted for re ‑ examination in its entirety.", "58. On 30 October 2008 the Kraków Court of Appeal gave a judgment. It stated, referring to the findings of the Supreme Court, that Dr S.B. had failed to refer the applicant for genetic testing as soon as the suspicions as to the foetus ’ condition had arisen. He had referred her twice to the Kraków hospital, despite the fact that she had already been at that hospital and that no genetic tests had been carried out at that time. The court held that the applicant ’ s claim of PLN 20,000 should therefore be allowed.", "59. It further amended the judgment of the first-instance court by increasing to PLN 30,000 the just satisfaction to be paid to the applicant by S.B. for breach of her personal rights in making denigrating public statements about her in the press.", "60. In so far as the action was directed against the T. hospital, the court held that the applicant had not received a proper diagnosis. Dr G.S. , working at the T. hospital, had not referred her for genetic testing, but only to Kraków hospital, even though he had been aware that genetic testing was not carried out there. When the applicant had eventually received the results of the tests and, relying on them, had asked G.S. on 29 March 2002 to perform an abortion, a written negative reply had been served on her a month later, namely on 29 April 2002.", "61. In respect of Kraków University Hospital, the court noted that when the applicant had been admitted there on 14 March 2002, she had already had the results of the scan made by Professor K.Sz. in Łódź, which strongly indicated that the foetus was affected with Turner syndrome. In such circumstances, the hospital was under an obligation to carry out tests in order to either confirm or dispel these suspicions, but had failed to do so. Other tests had been carried out instead, concerning a possible inflammatory condition of the foetus, which were irrelevant for the diagnosis of Turner syndrome. The hospital had exposed the applicant to unnecessary stress, while the correct diagnosis had not been made. The defendants had been aware that time was of the essence in the availability of legal abortion, but had failed to accelerate their decision-taking. The hospitals were liable for the negligent acts of their employees in so far as it was their duty to provide the applicant with full information about any genetic disorder of the foetus and how it might affect its development and to do so in time for her to prepare herself for the prospect of giving birth to a child with a genetic disorder. Moreover, the doctors had failed to make any record of their refusals and the grounds for them, an obligation imposed on them by section 39 of the Medical Profession Act.", "62. As Kraków University Hospital had a higher referral level, its liability was more serious as a high level of professional skill could have been reasonably expected of it. The applicant had legitimately expected that she would obtain diagnostic and therapeutic treatment of the requisite quality, whereas her case had in fact been handled with unjustifiable delays.", "63. Having regard to the defendants ’ failure to respect the applicant ’ s rights, the court awarded the applicant PLN 5,000 against T. Hospital of St. Lazarus and PLN 10,000 against Kraków University Hospital, and dismissed the remainder of her appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "64. Article 38 of the Constitution reads as follows:", "“The Republic of Poland shall ensure the legal protection of the life of every human being.”", "65. Article 47 of the Constitution reads:", "“Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.”", "B. The 1993 Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act and related statutes", "66. The Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act, which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”.", "Section 2 (a) of the 1993 Act reads:", "“ The State and local administration shall ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem or of an incurable life-threatening ailment. ”", "67. Section 4(a) of the 1993 Act reads, in its relevant part:", "“1. An abortion can be carried out only by a physician where", "1) pregnancy endangers the mother ’ s life or health;", "2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life ‑ threatening ailment;", "3) there are strong grounds for believing that the pregnancy is a result of a criminal act.", "2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother ’ s body; in cases listed under 3) above, until the end of the twelfth week of pregnancy.", "3. In the cases listed under 1) and 2) above the abortion shall be carried out by a physician working in a hospital. ...", "5. Circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman ’ s life.”", "68. An ordinance issued by the Minister of Health on 22 January 1997, on qualifications of doctors authorised to perform abortions, contains two substantive sections. In its section 1, the requisite qualifications of doctors authorised to perform legal abortions in the conditions specified in the 1993 Act are stipulated. Section 2 of the Ordinance reads:", "“The circumstances indicating that pregnancy constitutes a threat to the woman ’ s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman ’ s condition.”", "69. On 21 December 2004 the Minister of Health enacted an Ordinance on Certain Medical Services ( rozporządzenie Ministra Zdrowia w sprawie zakresu świadczeń opieki zdrowotnej ). An Appendix No. 3 to this Ordinance, entitled Scope of Medical Prenatal Services ( ... ) ( Zakres lekarskich badań prenatalnych ( ... ) ) read, in so far as relevant:", "“ 1. Prenatal tests are to be understood as examinations and diagnostic procedures carried out in respect of pregnant women during the first and second trimesters of pregnancy where there is an increased risk of genetic ailment or malformation, but not later than in the 22 nd week of pregnancy.", "2. Prenatal tests comprise: 1) non-invasive examinations [including ultrasound scans and biochemical tests [ marking of serum levels in a pregnant woman ’ s blood ]; 2) invasive tests [including biopsy of the trophoblast and amniocentesis ].", "3. Prenatal tests are recommended, in particular, where ... 5) results of the ultrasound scan carried out during the pregnancy indicate an increased risk of the foetus being affected with a chromosomal aberration or other malformation.”", "C. Relevant provisions of the Criminal Code", "70. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists such a termination may be sentenced to up to three years ’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act.", "71. Under Article 157 (a) 1, causing physical damage to an unborn child is a criminal offence punishable by a fine, by limitation of liberty, or by imprisonment of up to two years.", "D. Patients ’ rights", "72. At the relevant time, patients rights were provided for by the Medical Institutions Act 1992 ( ustawa o zakładach opieki zdrowotnej ). Its section 19 (2) provided that a patient had a right to obtain information about his or her condition.", "E. Rights and obligations of doctors", "73. Under section 39 of the Medical Profession Act ( ustawa o zawodzie lekarza ), a doctor may refuse to carry out a medical service, invoking her or his objections on the ground of conscience. He or she is obliged to inform the patient where the medical service concerned can be obtained and to register the refusal in the patient ’ s medical records. Doctors employed in health care institutions are also obliged to inform their supervisors of the refusal in writing.", "74. Section 31.1 of the Medical Profession Act 1996 provides that physicians are under an obligation to provide to the patient, or his or her representative, comprehensible information about his or her health, diagnosis, proposed and possible diagnostic and therapeutic methods, foreseeable consequences of a decision to have recourse to them or not, and about possible results of therapy and prognosis.", "75. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts, a doctor may, on his or her own initiative or at a patient ’ s request and if he or she finds it reasonable in the light of the requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors.", "F. Civil liability in tort", "76. Articles 415 et seq. of the Polish Civil Code provide for liability in tort. Under this provision, whoever by his or her fault causes damage to another person, is obliged to redress it.", "77. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom.", "78. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:", "“The court may grant an adequate sum as pecuniary compensation for non ‑ pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific social interest. ...”", "G. Case-law of the Polish courts", "79. In a judgment of 21 November 2003 (V CK 167/03) the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, that is to say in circumstances provided for by section 4 (a) 1.3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal.", "80. In a judgment of 13 October 2005 (IV CJ 161/05) the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, that is to say in circumstances set out by section 4 (a) 1.2 of that Act, gave rise to a compensation claim.", "H. Relevant non-Convention material", "1. Texts adopted within the Council of Europe", "81. On 21 June 1990 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (90) 13 on prenatal genetic screening, prenatal genetic diagnosis and associated genetic counselling. The recommendation contains, inter alia, the following principles:", "“ The Committee of Ministers [ ...] noting that in recent decades considerable progress has been achieved in detecting genetic abnormalities in the child to be born, through genetic screening and through prenatal diagnosis of pregnant women, but also noting the fears that these procedures arouse;", "Considering that women of childbearing age and couples should be fully informed and educated about the availability of, the reasons for and risks of such procedures;", "Convinced that the genetic diagnosis and screening must always be accompanied by appropriate genetic counselling but that such counselling should in no cases be of a directive nature and must always leave the woman of childbearing age fully informed to take a free decision; ...", "Recommends that the governments of the member States adopt legislation in conformity with the Principles contained in this Recommendation or take any other measures to ensure their implementation.", "\"Prenatal diagnosis\" is the term used to describe tests used to confirm or exclude whether an individual embryo or foetus is affected by a specific disorder.", "Principle 1 : No prenatal genetic screening and/or prenatal genetic diagnosis tests should be carried out if counselling prior to and after the tests is not available.", "Principle 2 : Prenatal genetic screening and/or prenatal genetic diagnosis tests undertaken for the purpose of identifying a risk to the health of an unborn child should be aimed only at detecting a serious risk to the health of the child. ...", "Principle 4 : The counselling must be non-directive; the counsellor should under no condition try to impose his or her convictions on the persons being counselled but inform and advise them on pertinent facts and choices. ...", "Principle 9 : In order to protect the woman ’ s freedom of choice, she should not be compelled by the requirements of national law or administrative practice to accept or refuse screening or diagnosis. In particular, any entitlement to medical insurance or social allowance should not be dependent on the undergoing of these tests.", "Principle 10 : No discriminatory conditions should be applied to women who seek prenatal screening or diagnostic testing or to those who do not seek such tests, where these are appropriate. ”", "82. In 2008 the Parliamentary Assembly of the Council of Europe adopted Resolution 1607 (2008) “Access to safe and legal abortion in Europe ”. This resolution, in so far as relevant, reads:", "“ 1. The Parliamentary Assembly reaffirms that abortion can in no circumstances be regarded as a family planning method. Abortion must, as far as possible, be avoided. All possible means compatible with women ’ s rights must be used to reduce the number of both unwanted pregnancies and abortions.", "2. In most of the Council of Europe member states the law permits abortion in order to save the expectant mother ’ s life. Abortion is permitted in the majority of European countries for a number of reasons, mainly to preserve the mother ’ s physical and mental health, but also in cases of rape or incest, of foetal impairment or for economic and social reasons and, in some countries, on request. The Assembly is nonetheless concerned that, in many of these states, numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services. These restrictions have discriminatory effects, since women who are well informed and possess adequate financial means can often obtain legal and safe abortions more easily.", "3. The Assembly also notes that, in member states where abortion is permitted for a number of reasons, conditions are not always such as to guarantee women effective access to this right: the lack of local health care facilities, the lack of doctors willing to carry out abortions, the repeated medical consultations required, the time allowed for changing one ’ s mind and the waiting time for the abortion all have the potential to make access to safe, affordable, acceptable and appropriate abortion services more difficult, or even impossible in practice.", "4. The Assembly takes the view that abortion should not be banned within reasonable gestational limits. A ban on abortions does not result in fewer abortions but mainly leads to clandestine abortions, which are more traumatic and increase maternal mortality and/or lead to abortion “tourism” which is costly, and delays the timing of an abortion and results in social inequities. The lawfulness of abortion does not have an effect on a woman ’ s need for an abortion, but only on her access to a safe abortion.", "...", "6. The Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way.", "7. The Assembly invites the member states of the Council of Europe to:", "7.1. decriminalise abortion within reasonable gestational limits, if they have not already done so;", "7.2. guarantee women ’ s effective exercise of their right of access to a safe and legal abortion;", "7.3. allow women freedom of choice and offer the conditions for a free and enlightened choice without specifically promoting abortion;", "7.4. lift restrictions which hinder, de jure or de facto, access to safe abortion, and, in particular, take the necessary steps to create the appropriate conditions for health, medical and psychological care and offer suitable financial cover ... ”", "83. The provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine), adopted in Oviedo, Spain, on 4 April 1997, in so far as relevant, read:", "“ Article 5 – General rule", "An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. ...", "Article 10 – Private life and right to information", "Everyone has the right to respect for private life in relation to information about his or her health.", "Everyone is entitled to know any information collected about his or her health. However, the wishes of individuals not to be so informed shall be observed.”", "2. The texts adopted within the United Nations", "84. The Polish Government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated:", "“ 106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Non ‑ governmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts to 80,000 to 200,000 annually.", "107. It follows from the Government ’ s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations, that the Law ’ s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians ’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions.” [3]", "85. The United Nations Human Rights Committee considered the fifth periodic report of Poland (CCPR/C/POL/2 004/5) at its 2240th and 2241st meetings (CCPR/C/SR.22 40 and 2241), held on 27 and 28 October 2004 and adopted the concluding observations which, in so far as relevant, read :", "“ 8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned (art. 6).", "The State party should liberalize its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on Parental Awareness is discussed in Parliament. ”", "86. The Committee on the Elimination of Discrimination against Women (CEDAW), at its 37 th session, held from 15 January to 2 February 2007, considered the combined fourth and fifth periodic report (CEDAW/C/POL/4-5) and the sixth periodic report of Poland (CEDAW/C/POL/6). It formulated the following concluding comments:", "“ 24. ... The Committee is concerned about the lack of official data and research on the prevalence of illegal abortion in Poland and its impact on women ’ s health and life.", "... 25. The Committee urges the State party to take concrete measures to enhance women ’ s access to health care, in particular to sexual and reproductive health services, in accordance with article 12 of the Convention and the Committee ’ s general recommendation 24 on women and health. It calls on the State party to conduct research on the scope, causes and consequences of illegal abortion and its impact on women ’ s health and life. It also urges the State party to ensure that women seeking legal abortion have access to it, and that their access is not limited by the use of the conscientious objection clause. ”", "3. The International Federation of Gynaecology and Obstetrics", "87. The objective of the International Federation of Gynaecology and Obstetrics (FIGO) is to promote sexual and reproductive health and rights through educational research and advocacy activities. In 1991 its Ethics Committee issued a statement on Ethical Issues Concerning Prenatal Diagnosis of Disease in the Conceptus. It states that:", "“ Prenatal diagnosis has become an established service in the care of pregnant women. Further advances, especially at the molecular level, will expand the accuracy and diagnostic scope of manifest disease in later life. Such information may lead to termination of pregnancy, genetic engineering or to adjustments in future life ‑ style. There is also the potential danger of stigmatization or discrimination against the parent or the child identified as affected by some disorder or potential disorder. ...", "A potential benefit of prenatal diagnosis is the rejection of the diseased conceptus when requested by the woman and permitted by the law. The legal position and the likely attitude of the woman to termination of pregnancy should be ascertained in advance.", "Prior to undertaking diagnostic procedures, women should be counseled about the risks and benefits of the technique to be used. Such counseling should be factual, respectful of the woman ’ s view, and non-coercive. Consent should be obtained for the use of the procedure.", "Women should not be denied the availability of prenatal diagnosis because they will not agree in advance to pregnancy termination as an option. Nor should the techniques be withheld on social or financial grounds.", "Knowledge of prenatally diagnosed disease should not be used as justification for withholding normal medical support or services during pregnancy, at birth, or thereafter, which are desired by the parents.", "Equity requires that these important diagnostic services are made as widely available as possible. ... ”", "88. The FIGO Ethics Committee ’ s 1991 statement on Ethical Aspects of Termination of Pregnancy Following Prenatal diagnosis states, inter alia, that:", "“ 3. Knowledge acquired by prenatal diagnosis allows for the possibility of termination of pregnancy in those countries where this is legal. This raises serious ethical questions with regard to the degree of abnormality and the reduction in quality of life which may justify this course of action. The attitude of the parents, particularly the woman, after counseling, is of major importance in reaching a decision. It is unethical for anyone to bring pressure to bear on the couple with a view to their accepting a particular option.", "4. Doctors should be aware of the desire of parents for a “perfect baby”. However, this wish is unrealistic and parents should be counselled accordingly.", "5. Termination should be discouraged when the disorder is treatable and will not necessarily affect the future quality of life.", "6. In enabling parents to reach an appropriate decision the primary concern should be the quality of life and the longevity of the individual. A second consideration must be the effect that the birth and life of such a child might have on the woman herself and on her family. In this regard consideration must also be given to the effect of the termination of the pregnancy on the physical and/or psychological health of the woman and her family. A third concern is the availability of resources and support for long-term care .”", "89. The Committee ’ s 1994 statement on the Ethical Framework for Gynecologic and Obstetric Care requires that:", "“ 3. when decisions regarding medical care are required, women be provided with full information on available medical alternatives including risks and benefits. Informing women and obtaining their input and consent, or dissent, should be a continuing process.", "4. If a physician is either unable or unwilling to provide a desired medical service for non-medical reasons, he or she should make every effort to achieve appropriate referral. ”", "THE LAW", "90. The applicant complained that the facts of the case had given rise to a breach of Article 3 of the Convention which, insofar as relevant, reads as follows:", "“No one shall be subjected to ... inhuman or degrading treatment... ”", "91. The applicant further complained that the facts of the case had given rise to a breach of Article 8 of the Convention. Her right to respect for her private life and her psychological and moral integrity had been violated by the authorities ’ failure to provide her with access to genetic tests in the context of her uncertainty as to whether the foetus was affected with a genetic disorder and also by the absence of a comprehensive legal framework to guarantee her rights.", "Article 8 of the Convention, insofar as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "A. The applicant ’ s status as a victim", "1. The parties ’ submissions", "92. The Government first submitted that the applicant had rejected their friendly settlement proposal. In their view, she had therefore lost her status as a victim of a breach of her rights guaranteed by the Convention.", "They further submitted that she had lost that status also because the Kraków Court of Appeal, in its judgment of 30 October 2008, awarded her PLN 65,000 and that judgment subsequently became final.", "93. The Government argued that the Supreme Court, in its judgment of 11 July 2008, had held that the right to family planning and the related right to legally terminate the applicant ’ s pregnancy on conditions provided for by Polish law had to be regarded as a personal right within the meaning of the Civil Code. These rights were therefore to be seen as falling within the ambit of Articles 3 and 8 of the Convention. The Supreme Court and the Court of Appeal had thereby acknowledged that the applicant ’ s rights had been breached and afforded redress to her.", "94. The applicant argued that the violations of the Convention in her case had resulted from the lack of review procedures available in connection with the doctors ’ refusal to provide her with prenatal diagnosis and care and from the unregulated and chaotic practice of conscientious objection under Polish law, which formed the basis of her complaints under the Convention. She further emphasised that she had received insufficient compensation for the breaches of her rights.", "In addition, the domestic courts had failed to address the systemic shortcomings of Poland ’ s health care and legal system disclosed by her case. She referred to the case of M.A v. the United Kingdom ( no. 35 242/04, ECHR 2005 – VIII) where a family judge had apologised for the failures in the child care system which had come to light against the background of an individual case, had carried out an explicit and detailed analysis of the system ’ s shortcomings and had made a list of recommendations to avoid repetition of similar violations. She argued that this should have served as a model approach for dealing with her case.", "95. The applicant concluded that, in any event, the damages awarded to her on the domestic level should not be used as a means of avoiding the State ’ s compliance with its obligations under the Convention.", "2. The Court ’ s assessment", "96. In so far as the Government referred to the friendly settlement negotiations between the parties, the Court first reiterates that in accordance with Article 38 § 2 of the Convention, friendly settlement negotiations are confidential and without prejudice to the parties ’ arguments in the contentious proceedings. Pursuant to Rule 62 of the Rules of Court, no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings. In any event, in the present case the applicant refused the terms of the proposed settlement. Her refusal to settle the case has therefore no incidence on her victim status (see, Chebotarev v. Russia, no. 23795/02, § 20, 22 June 2006, mutatis mutandis; Nina Kazmina and Others v. Russia, nos. 746/05, 13570/06, 13574/06, 13576/06 and 13579/06 (Sect. 1) (Eng), § 25, 13 January 2009; Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 74, ECHR 2003 ‑ VI ).", "97. The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia, Siliadin v. France, no. 73316/01, § 61, ECHR 2005-VII, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 179, ECHR 2006 ‑ V ). An applicant ’ s status as a victim of a breach of the Convention may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003). The adequacy of that redress falls to be assessed in the light of all the circumstances of the case seen as a whole (see, mutatis mutandis, Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004). The applicant ’ s victim status also depends on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq ., and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 ‑ X).", "98. The Court has therefore to examine whether the national authorities have acknowledged, either expressly or in substance, the breach of the rights protected by the Convention.", "99. It notes in this connection that the applicant, in her civil case brought before the domestic courts, complained about the doctors ’ failure to refer her for the purposes of genetic testing and about the resultant breach of her right to make an informed decision as to the continuation of pregnancy (see paragraph 43 above).", "100. Furthermore, she complained that her personal rights, including her right to respect for personal dignity, had been breached as a result of the manner in which the issue of her access to genetic tests had been determined (see paragraph 43 above).", "101. The Court observes that the Supreme Court, in its judgment of 11 July 2008, held that the right of a pregnant woman to be informed about the foetus ’ health in a timely manner and to take informed decisions in the light of that information as to whether to continue the pregnancy or not was a personal right within the meaning of the Civil Code. The Supreme Court found that the legal assessment of the doctors ’ conduct in connection with the applicant ’ s access to genetic testing made by the lower courts was untenable. It accordingly quashed, in its entirety, the judgment of the Kraków Court of Appeal, given on 28 July 2008. As a result, in its subsequent – and final – judgment of 30 October 2008 the Kraków Court of Appeal reversed its previous position and acknowledged that the applicant ’ s patient ’ s and personal rights had been breached.", "102. The Court notes that in its judgment the Supreme Court had shown a thorough understanding of the legal issues arising in the case and interpreted them in a manner showing regard for the applicant ’ s dignity and personal autonomy, values protected by the provisions of the Polish Civil Code. It carefully weighed them against other interests involved in the case. In particular, the Supreme Court emphasised a patient ’ s right of access to information relevant to her or his health, including about the foetus ’ condition. It also held that the applicant had suffered distress, anxiety and humiliation as a result of the manner in which her case had been handled (see paragraph 54 above).", "103. As to the first set of issues raised by the applicant ’ s case (see paragraph 9 9 above) the Court notes that the applicant submitted them to the Court, alleging that they had given rise to a breach of Article 8 of the Convention (see paragraph 91 above ). The Court considers that this part of the Government ’ s objection is closely linked to the substance of the applicant ’ s complaint under this provision and that its examination should therefore be joined to the merits of that complaint.", "104. In so far as the Government ’ s objection as to the applicant ’ s victim status also concerns the applicant ’ s complaint under Article 3 of the Convention (see paragraph 90 above ), the Court is of the view that the amounts awarded at the domestic level must be viewed against the background of the case seen as a whole. The civil case concerned the protection of the applicant ’ s dignity. The issues involved in the case were therefore of the utmost importance for her.", "105. It is in this context that the adequacy of the award made in the civil proceedings must be assessed. The courts awarded the applicant PLN 65,000 for all three kinds of complaints which she had made in respect of the way in which she had been treated by the health professionals.", "106. However, the Court observes that that amount covered also her claim for defamation against S.B., one of the doctors who had made disparaging statements about her in a press interview. He was ordered to pay PLN 50,000, of which PLN 30,000 concerned the claims arising in connection with the interview. Only the amount of PLN 20,000 concerned the same issues as those examined by the Court in the present case and arising in connection with the circumstances surrounding Dr S.B. ’ s failure to issue to the applicant a prompt referral for genetic testing.", "107. The Court further notes that the applicant was also awarded PLN 5,000 against the hospital in T. and PLN 10,000 against the Kraków University Hospital in respect of the breach of her rights as a patient. These amounts have to be added to the sum of PLN 2 0,000 referred to in the above paragraph. In sum, the amount of the domestic award relevant for the case before the Court in its entirety was therefore PLN 35,000.", "108. The Court notes that in the case of Tysiąc v. Poland it examined whether the Polish State had complied with its positive obligation under Article 8 of the Convention to safeguard the applicant ’ s right to respect for her private life in the context of a controversy as to whether she was entitled to a legal abortion. It awarded the applicant EUR 25,000 [4] in respect of a breach of this provision. This amount was almost three times higher than that awarded by the domestic courts in the present case in respect of the applicant ’ s complaints made both under Article 3 and Article 8 of the Convention. The Court is therefore of the view that, having regard to the circumstances of the case, the amount of PLN 35,000 cannot be regarded as financial redress commensurate with the nature of the damage alleged by the applicant ( compare and contrast Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I ).", "109. The Court finds that the applicant has not ceased to be a victim of a breach of Article 3 of the Convention within the meaning of Article 34 of the Convention. The Government ’ s objection in this respect is accordingly dismissed.", "3. Exhaustion of domestic remedies", "110. The Government submitted that the applicant had failed to exhaust relevant domestic remedies. The Polish legal system provided for legal avenues which made it possible, either by means of criminal proceedings or civil compensation claims, to establish liability on the part of doctors for any damage caused by medical malpractice.", "111. They argued that Article 8 of the Convention did not entail a duty for the State either to establish a general preventive mechanism for review of medical decisions, or to create an appeal procedure regarding access to medical services, even where access to another medical service hinged on a prior diagnostic service. This was also the case for medical services where the time factor was crucial, such as chemotherapy, for instance, as well as services which were essential in order to prevent serious health damage or even death. There were no reasons for departing from this general rule where medical decisions could help to determine whether a foetus was suffering from possible genetic malformation.", "112. Furthermore, the State ’ s choice between creating preventive measures or retroactive ones, such as civil or criminal liability, depended on assumptions made by public powers with respect to a conflict between the rights of a pregnant woman and those of an unborn child. The obligations imposed by Article 8 did not exclude perceiving the life of an unborn child as of such crucial value as to render acceptable a risk of wrongful medical diagnosis concerning the existence – or otherwise – of conditions which would make an abortion lawful. Likewise, such a perception of the interests involved could also justify limiting the legal avenues for challenging such a diagnosis to retroactive ones. Obviously, only a woman who wished to terminate her pregnancy would resort to a potential review mechanism in relation to a medical diagnosis impinging on the foetus ’ rights. As a result, only an unborn child would bear the risk of such a diagnosis being incorrect.", "113. The Government further submitted that the applicant should have resorted to a constitutional complaint to challenge the provisions of the 1993 Act. The Court had already held a constitutional complaint to be an effective and sufficient domestic remedy.", "114. The applicant submitted that the civil proceedings did not provide sufficient and effective remedies with respect to the breaches alleged. Procedures in which decisions concerning the availability of lawful abortion were reviewed post factum could not fulfil such a function ( Tysiąc, cited above, § 118). Retrospective measures alone were not sufficient to provide appropriate protection for the physical and psychological integrity of individuals in such a vulnerable position as the applicant ( Tysiąc, § 124). The available legal framework as applicable at the material time did not contain any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met ( Tysiąc, § 127).", "115. She further argued that she had sought information on the health of the foetus, through prenatal genetic examination, which would have enabled her to make an informed decision, based on medical evidence, as to whether to continue her pregnancy or not. Instead, due to systemic problems in the health care system and, in particular, the State ’ s failure to implement existing laws on conscientious objection and on access to prenatal health care services and to lawful abortion, the doctors had intentionally denied her timely information and health services that should have been considered normal and accessible, lawful and appropriate in the circumstances of her case. Delaying prenatal diagnostic testing also delayed the taking of potential informed decision as to whether to request a termination of pregnancy, to which the applicant was entitled, ultimately making abortion impossible.", "116. In so far as the Government refer to a constitutional complaint as a remedy relevant in the applicant ’ s circumstances, the Court is of the view that such a complaint would not have been an effective means of protecting the applicant ’ s right to respect for her private life for the following reasons.", "The Court notes, firstly, that it has already dealt with the question of the effectiveness of the Polish constitutional complaint ( Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.), no 8812/02, 8 November 2005; Wypych v. Poland (dec.), no. 2428/05, 25 October 2005). It examined its characteristics and, in particular, found that the constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention only in situations where the alleged violation resulted from the direct application of a legal provision considered by the complainant to be unconstitutional. In the present case, the complaints raised by the applicant cannot be said to have originated from any single legal provision or even from a well-defined set of provisions. They rather resulted from the way in which the laws were applied in practice to her case. However, it follows from the case-law of the Polish Constitutional Court that it lacks jurisdiction to examine the way in which the provisions of domestic law were applied in an individual case.", "117. Furthermore, the Court has already held that the constitutional courts were not the appropriate fora for the primary determination as to whether a woman qualifies for an abortion which is lawfully available in a State. In particular, this process would amount to requiring the constitutional courts to resolve through evidence, largely of a medical nature, whether a woman had established the existence of circumstances in which legal abortion could be sought under the 1993 Act (see, mutatis mutandis, A, B and C v. Ireland [GC], no. 25579/05, § 258, 16 December 2010 ).", "118. The Court therefore dismisses the Government ’ s preliminary objection as regards the applicant ’ s failure to exhaust domestic remedies by not lodging a constitutional complaint.", "119. Furthermore, the Court considers that the Government ’ s objection concerning the alleged failure to exhaust domestic remedies by way of pursuing a compensation claim before the civil courts is closely linked to the substance of the applicant ’ s complaints under Article 8 § 1 read together with Article 13 of the Convention, and should be joined to the merits of the case.", "120. The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "II. THE MERITS", "121. The Court will first set out the submissions received from third parties who were granted leave to intervene in the case (A.). It will then examine the merits of the applicant ’ s complaints under Articles 3, 8 and 13 of the Convention (B., C. and D.).", "A. Third parties ’ submissions", "1. Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the office of the United Nations High Commissioner for Human Rights", "122. Because the decision to continue or terminate a pregnancy had a profound effect on a woman ’ s private life, including her physical and moral integrity, any interference with this decision must be analysed in light of the woman ’ s right to privacy. This was true regardless of whether the interference directly affected the woman ’ s access to legal abortion or affected it indirectly, by denying her the prerequisite healthcare she needed in order to make a decision regarding continuation or termination of the pregnancy. Numerous international conventions broadly recognised a woman ’ s right to the highest attainable standard of health, including access to appropriate reproductive care. Privacy was particularly important in the case of sexual and reproductive healthcare, which must be provided in a manner consistent with women ’ s rights to personal autonomy.", "123. Access to prenatal genetic examinations touched upon reproductive health- related aspects of the right to privacy. Access to information was particularly important in the context of health, as individuals cannot make meaningful healthcare decisions without access to health ‑ related information. Accurate knowledge of an individual ’ s health status was necessary to enable that individual to understand her health care options and protect her bodily integrity by deciding which health care treatment she would avail herself of.", "124. This right to information applied with regard to a woman ’ s own reproductive status, knowledge of which was particularly important if women were to be empowered to preserve their bodily integrity by making reproductive health care decisions. Pregnant women might need access to prenatal examinations in order to obtain accurate information about their own health and the health of their foetus, particularly where there were other indications of genetic malformation. Genetic examinations were often the most reliable method for detecting foetal genetic defects.", "125. States must allow individuals to make health care decisions in an active and informed manner. Genetic examinations were one important source of information on foetal health. Obstructing access to examinations necessary to make reproductive decisions interfered with women ’ s reproductive health care decision - making. Without information about whether a foetus was healthy or severely malformed, a woman could not make crucial decisions regarding prenatal treatment or whether to carry the foetus to term. When a country permitted abortion in cases of foetal genetic defect, women must have access to prenatal genetic examinations in order to exercise their right to a legal abortion.", "126. One way in which States interfered with a woman ’ s right to decide on a legal abortion was to make such abortions unavailable in practice. The Human Rights Committee had expressed concern regarding States that professed to grant women access to legal abortion but allowed practices to continue that interfered with actual access to abortion services.", "127. Where a State allowed providers to conscientiously object to providing health services, it must ensure that it had other adequate procedures in place to safeguard women ’ s ability to effectively exercise their rights under Article 8 of the Convention, including the right to an abortion where legal and the right to information regarding their health status.", "128. The consensus among UN Treaty Monitoring Bodies and international health organisations was that the right of a health care provider to conscientiously object to the provision of certain health care services must be carefully regulated so that it did not effectively deny a woman the right to obtain such services which were guaranteed by the law, in this case pursuant to Article 8 of the European Convention.", "2. International Reproductive and Sexual Health Law Programme of the Law Faculty, University of Toronto", "129. The protection of prenatal life was an important social and moral value in all Contracting Parties. However, it must be asked whether protecting this value was a legitimate reason to deny women access to prenatal tests that will assist them, rather than their doctors, to make informed decisions as to whether to pursue consequent treatment.", "130. There was widespread regional and international recognition of the importance of ensuring women ’ s right to equal access to health care systems generally, and access to timely diagnostic treatment and lawful abortion.", "131. Where uniform European standards existed regarding women ’ s timely access to medically-indicated diagnostic tests and consequent lawful treatment, Contracting Parties ’ margin of appreciation was greatly diminished.", "132. The stereotype that motherhood was women ’ s natural role and destiny was discriminatory when it implied that all women should be treated only as mothers or potential mothers, and not according to their individual needs not to become mothers at certain points in their lives. When Contracting Parties incorporated such a stereotype into the delivery of health care services, it disadvantaged women. Discriminatory stereotypes limited the ability of individual women to make autonomous decisions about their health and their private and family life that could conflict with their role as mothers or future mothers.", "133. Women should not be conditioned by State agents ’ withholding of available medical services that could diagnose severe foetal abnormalities when the law allowed them the private choice to terminate such pregnancies.", "134. Accordingly, unjust denial or obstruction of diagnostic services on the basis of a woman ’ s express intention to terminate a pregnancy was an interference with private life. A pregnant woman ’ s suffering was too intimate and personal for the State to insist, without more, upon its own vision of the woman ’ s role, however dominant that vision had been in the course of our history and culture. The destiny of the woman must be shaped to a large extent by her own conception of her spiritual imperatives and her place in society.", "135. Women ’ s private choices of the design and composition of their families should not be at the disposal of health care professionals or institutions that determine the allocation of available health care resources, or that seek to advance sex-specific norms based on religious or cultural ideologies through the denial of available diagnostic services in order to prevent outcomes of which they disapprove.", "136. Women ’ s human right to control their own bodies affected their capacity to serve their families, including dependent children and often dependent elderly family members. The design and composition of women ’ s family life, including how they proportioned resources of time and energy among healthy and disabled children, and among children and elderly family members, was a matter of deep personal and emotional significance.", "137. There was a wide consensus that in the administration of health ‑ care systems, Contracting Parties were obligated positively to ensure reasonable availability of diagnostic services to enable patients to have the information necessary to make medical decisions significant for their health and family well ‑ being.", "138. This principle of free and informed decision - making was found in codes of medical ethics and was reflected in national laws, court decisions of Contracting Parties, international legal norms and their application, and international guidelines on medical practice.", "139. Doctors can exploit their professional authority to treat female patients according to their own beliefs and sex-based stereotypes, rather than according to the actual needs of such patients. When patients were treated in ways unrelated to their own medical needs, and to their own priorities and aspirations, but rather as a means to advance doctors ’ own ends, there was a form of degrading treatment. Denying women the exercise of reproductive autonomy through obstructing timely access to prenatal diagnostic tests might likewise violate Article 3. Any resulting involuntary continuation of a legally terminable pregnancy, and the birth of a child with severe abnormalities, would constitute a form of inhuman and degrading treatment.", "140. Contracting Parties must account for the particular sex ‑ specific vulnerabilities of women seeking prenatal genetic diagnosis. Such women often had existing dependent children for whom they had to care. They faced a very stressful decision, perhaps one of the most difficult decisions in their lives. As a result, they required non-judgmental counseling that enabled them to think through their particular life circumstances, personal values and priorities, usually under severe time constraints.", "141. When Contracting Parties, in regulating health care systems, subjected pregnant women, faced with the possibility of births of children with severe abnormalities, to circuitous or obstructive means to obtain information or treatment, with the effect that they were denied opportunities to make timely decisions about legal abortion services, there was a violation of Article 14 of the Convention in relation to its Article 3.", "142. Contracting Parties should be required to observe guidelines on the provision of prenatal genetic diagnosis. Such guidelines should include the ethical principle to consider first the well-being of the patient, and to ensure that this principle was implemented, irrespective of the sex of the patient.", "3. The International Federation of Gynaecology and Obstetrics", "143. The International Federation of Gynaecology and Obstetrics (FIGO) submitted that it could be useful for the Court to be aware of the Federation ’ s and its Ethics Committee ’ s findings and recommendations on women ’ s access to medically indicated prenatal tests and exercise of reproductive choice, and on practitioners ’ exercise of rights of conscientious objection in a manner consistent with equal respect for the conscientious convictions of their colleagues and patients. The FIGO Ethics Committee recognised that some physicians might present false diagnostic or clinical reasons to decline to afford patients indicated care to which the physicians object, rather than “provide public notice of professional services they decline to undertake”.", "B. Alleged violation of Article 3 of the Convention", "1. The parties ’ submissions", "144. The Government submitted that on no occasion had the applicant been subjected to treatment which would result in a breach of Article 3 of the Convention. The applicant might have felt some stress or discomfort, but the treatment complained of had not approached the threshold of severity sufficient for it to fall within the ambit of this provision. Even assuming that the applicant ’ s conversations with some doctors could have been stressful or unpleasant, or that the doctors had expressed their views in a rude or impolite manner, as the applicant seemed to consider, this did not raise any issue under Article 3.", "In so far as the applicant was of the view that the doctors had treated her in a dismissive and contemptuous manner, repeatedly criticising her for her efforts to obtain access to prenatal testing and for the fact that she had envisaged a termination, the Government argued that nothing in the facts of the case suggested behaviour contrary to Article 3 of the Convention. The applicant ’ s allegations of an intentional failure to provide necessary medical treatment had no basis in the facts of the case.", "The Government rejected the supposition that inhuman or degrading treatment could result from the State ’ s failure to enact what the applicant perceived as adequate legislation.", "145. The applicant complained under Article 3 of the Convention that she had been subjected to inhuman and degrading treatment as a result of the doctors ’ intentional failure to provide necessary medical treatment in the form of timely prenatal examinations that would have allowed her to take a decision as to whether to continue or terminate her pregnancy within the time-limit laid down by the 1993 Act. She also complained that the doctors had treated her in a dismissive and contemptuous manner, repeatedly criticising her for her efforts to have prenatal tests carried out and for the fact that she had envisaged an abortion as a possible solution to her predicament.", "146. The applicant submitted that the repeated and intentional denial of timely medical care had been aimed at preventing her from having recourse to a legal abortion. The way in which she had been treated by the medical staff, including but not limited to degrading remarks related to her seeking medical information and tests which she had been legally entitled to receive, her unnecessary confinement for days in the Kraków hospital without explanation, only to conduct simple tests unrelated to genetic testing, and the unavailability of genetic testing within large areas of the country, as admitted by the State, had been humiliating and degrading and had had a continuing impact on the applicant ’ s life.", "147. The applicant further argued that she had been under additional duress because she had been aware that if the malformation had been severe enough she would seek a legal abortion, but could only do so within the time- limits allowed by law. Her husband had also wished for a legal abortion in the event of malformation of the foetus. She had known that had she been unable to obtain an abortion, she would be faced with having to raise a child affected with a lifelong ailment. This set of circumstances had caused her much distress and anxiety. The doctors had known about the time restrictions and about her position on terminating her pregnancy, but they had manipulated her and procrastinated, despite the obvious fact that termination of pregnancy was more dangerous later than earlier. Furthermore, Dr S. B. ’ s contemptuous attitude towards the applicant had been clearly shown in his interview.", "2. The Court ’ s assessment", "(a) General principles", "148. According to the Court ’ s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001- VII; Kupczak v. Poland, no. 2627/09, § 58, 25 January 2011; Jalloh v. Germany [GC], no. 54810/00, § ..., ECHR 2006 ‑ IX).", "149. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV ).", "150. Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among many other authorities, Iwańczuk v. Poland, no. 25196/94, § 51, 15 November 2001; Wiktorko v. Poland, no. 14612/02, § 45, 31 March 2009 ).", "151. Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3. For example, the Court has found violations of that provision in many cases where the authorities dealt with requests to provide information of crucial importance for the applicants, for example about the whereabouts and fate of their missing relatives, disclosing a callous disregard for their vulnerability and distress (see, among many other authorities, Kukayev v. Russia, no. 29361/02, §§ 102 ‑ 106; 15 November 2007; Takhayeva and Others v. Russia, no. 23286/04, § § 102-104, 18 September 2008 ).", "152. Moreover, it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under Article 3 by reason of their failure to provide appropriate medical treatment (see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V).", "(b) Application of the principles to the circumstances of the case", "153. Turning to the circumstances of the present case, the Court observes that the results of the ultrasound scan carried out in the 1 8 th week of the applicant ’ s pregnancy confirmed the likelihood that the foetus was affected with an unidentified malformation (see paragraph 9 above). Following that scan the applicant feared that the foetus was affected with a genetic disorder and that, in the light of the results of subsequent scans her fears cannot be said to have been without foundation. She tried, repeatedly and with perseverance, through numerous visits to doctors and through her written requests and complaints, to obtain access to genetic tests which would have provided her with information confirming or dispelling her fears; to no avail. For weeks she was made to believe that she would undergo the necessary tests. She was repeatedly sent to various doctors, clinics and hospitals far from her home and even hospitalised for several days for no clear clinical purpose (see paragraph 20 above ). The Court finds that the determination of whether the applicant should have access to genetic testing, recommended by doctors in light of the findings of the second ultrasound scan, was marred by procrastination, confusion and lack of proper counselling and information given to the applicant.", "Ultimately, it was only by following the advice given by Professor K.Sz., the only doctor who was sympathetic to her plight, that the applicant obtained admission to a hospital in Łódź by means of subterfuge. She reported to that hospital as an emergency patient and finally had the tests conducted in the 23 rd week of her pregnancy, on 26 March 2002. The applicant obtained the results on 9 April 2002, two weeks later.", "154. The Court notes that it was not in dispute that it was possible only by means of genetic tests to establish, objectively and in the manner dictated by modern medical science and technology, whether the initial diagnosis was correct. Indeed, this was never challenged either by the Government in the proceedings before the Court or by the defendants in the domestic civil proceedings.", "155. The Court further notes that it has not been argued, let alone shown, that at the material time genetic testing as such was unavailable for lack of equipment, medical expertise or funding. On no occasion was the applicant told that it was impossible to carry out the tests for any kind of technical or material reasons.", "156. In this connection, the Court cannot but note that the 1993 Act determining the conditions permitting termination of pregnancy expressly and unequivocally provides, and provided at the relevant time, for the State ’ s obligation to ensure unimpeded access to prenatal information and testing. Section 2 (a) of this Act imposed such an obligation on the State and local administration in particular in cases of suspicion of genetic disorder or development problems. This obligation covered all cases in which such suspicion arose in respect of a pregnancy, with no distinction whatsoever being drawn in the Act based on the severity of the suspected ailment (see paragraph 66 above).", "157. The Court further observes that the Medical Profession Act clearly provides and provided at the material time for a general obligation for doctors to give patients comprehensible information about their condition, the diagnosis, the proposed and possible diagnostic and therapeutic methods, the foreseeable consequences of a decision to have recourse to them or not, the possible results of the therapy and about the prognosis (see paragraph 74 above). Likewise, the Medical Institutions Act, applicable at the material time, provided for patients ’ right to obtain comprehensive information on their health (see paragraph 72 above). Hence, there was an array of unequivocal legal provisions in force at the relevant time specifying the State ’ s positive obligations towards pregnant women regarding their access to information about their health and that of the foetus.", "158. However, there is no indication that the legal obligations of the State and of the medical staff regarding the applicant ’ s patient ’ s rights were taken into consideration by the persons and institutions dealing with the applicant ’ s requests to have access to genetic testing.", "159. The Court notes that the applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation. It was therefore natural that she wanted to obtain as much information as possible so as to find out whether the initial diagnosis was correct, and if so, what was the exact nature of the ailment. She also wanted to find out about the options available to her. As a result of the procrastination of the health professionals as described above, she had to endure weeks of painful uncertainty concerning the health of the foetus, her own and her family ’ s future and the prospect of raising a child suffering from an incurable ailment. She suffered acute anguish through having to think about how she and her family would be able to ensure the child ’ s welfare, happiness and appropriate long-term medical care. Her concerns were not properly acknowledged and addressed by the health professionals dealing with her case. The Court emphasises that six weeks elapsed between 20 February 2002 when the first ultrasound scan gave rise, for the first time, to a suspicion regarding the foetus ’ condition and 9 April 2002 when the applicant finally obtained the information she was seeking, confirmed by way of genetic testing. No regard was had to the temporal aspect of the applicant ’ s predicament. She obtained the results of the tests when it was already too late for her to make an informed decision on whether to continue the pregnancy or to have recourse to legal abortion as the time limit provided for by section 4 (a) paragraph 2 had already expired.", "160. The Court is further of the view that the applicant ’ s suffering, both before the results of the tests became known and after that date, could be said to have been aggravated by the fact that the diagnostic services which she had requested early on were at all times available and that she was entitled as a matter of domestic law to avail herself of them.", "It is a matter of great regret that the applicant was so shabbily treated by the doctors dealing with her case. The Court can only agree with the Polish Supreme Court ’ s view that the applicant had been humiliated (see paragraph 54 above).", "161. The Court is of the view that the applicant ’ s suffering reached the minimum threshold of severity under Article 3 of the Convention.", "162. The Court concludes that there has therefore been a breach of that provision.", "C. Alleged violation of Article 8 of the Convention", "1. The parties ’ submissions", "(a) The Government", "163. The Government submitted that pregnancy and its interruption did not, as a matter of principle, pertain uniquely to the sphere of the mother ’ s private life. Whenever a woman was pregnant, her private life became closely connected with the developing foetus. There could be no doubt that certain interests relating to pregnancy were legally protected ( Eur. Comm. HR, Brüggemann and Scheuten v. Germany, Report of 12 July 1977, DR 10, p. 100). Polish law protected the human foetus in the same manner as the mother ’ s life and it therefore allowed for termination of pregnancy only in the circumstances prescribed in the 1993 Act. The Government were of the view that in the applicant ’ s case the conditions for lawful termination had not been met.", "164. The Government argued that in the applicant ’ s case the Court should not focus solely on the question of whether the applicant had been deprived of her right to receive genetic counselling. They stressed that ultimately the applicant had obtained access to a prenatal genetic examination, as requested.", "165. If the applicant was of the view that as a result of the delay in having access to genetic tests she had been deprived of the possibility of terminating her pregnancy, then the question arose whether in her case such a possibility genuinely existed on the basis of the Act. However, this could not be determined with the requisite clarity, as at the material time there had been no consensus in Poland as to whether Turner syndrome could be said to be a serious enough malformation within the meaning of the 1993 Act to justify a legal abortion.", "Moreover, the medical expert opinion prepared for the purposes of the criminal investigation indicated that Turner syndrome did not qualify as either a severe or a life-threatening condition. Hence, the doctors involved in the applicant ’ s case could not have issued a certificate authorising termination.", "Insofar as the applicant seemed to imply that another foetal malformation – Edwards syndrome – had been suspected, her medical records did not show this to have been the case. In any event, if the applicant relied primarily on what she perceived as her right to have an abortion on the grounds of foetal malformation, the Government were of the view that such a right could not be derived from the State ’ s positive obligation to guarantee adequate health care. Furthermore, according to the Government ’ s submission, any genetic examination of the foetus had at that time to be performed prior to the 22 nd week of pregnancy.", "166. The Government further submitted that they strongly disagreed with the reasoning adopted by the Court in its judgment in the case of Tysiąc v. Poland, concerning the potential threat to the pregnant woman ’ s health caused by pregnancy and by the refusal of termination. However, even if the present case were to be assessed from the point of view of the principles developed in that judgment, no support could be found therein for the applicant ’ s position. The question of voluntary termination of pregnancy for eugenic reasons, concerned in the present case, could not be derived from the State ’ s positive obligations to provide adequate medical care.", "167. If, on the other hand, the applicant held the State responsible for the delay in her access to genetic testing, the Government argued that she herself had contributed to that delay as she had insisted on having genetic testing carried out in a particular hospital, in Łódź, outside her region. This had inevitably led to the prolongation of the relevant procedures.", "168. The Government further referred to the provisions of the Minister of Health ’ s Ordinance of 22 January 1997 (see paragraph 6 8 above ), arguing that it provided for a procedure governing decisions on access to abortion. They further stated that section 37 of the Medical Professions Act 1996 made it possible for a patient to have a decision taken by a doctor as to the advisability of an abortion reviewed by his or her colleagues. In the present case, Dr S.B. had offered the applicant the possibility of convening a panel of doctors to examine her case, but the applicant had refused.", "169. Lastly, the Government argued that the applicant should have availed herself of the procedural possibilities provided for by administrative law. The public health institutions should be considered as administrative agencies, subject to the provisions of the Code of Administrative Procedure. Consequently, the refusal of admission to a hospital for the purposes of a voluntary termination constituted an administrative decision of the hospital ’ s management and, as such, was subject to administrative supervision procedures provided for by that Code.", "(b) The applicant", "170. The applicant submitted that the public powers ’ failure to implement laws and regulations governing access to prenatal examinations and termination of pregnancy in the context of sections 2 (2) (a) and 4(a) of the 1993 Act, including the lack of procedures to ensure whether the conditions for a lawful abortion under section 4 (a) had been met, and the failure to implement and oversee the laws governing the practice of conscientious objection, resulted in insufficient protection of her rights guaranteed by the Convention.", "171. The 1993 Act itself did not contain any procedural provisions. The 1997 Ordinance, referred to by the Government, did not provide for any particular procedural framework to address and resolve controversies arising in connection with the availability of lawful abortion. Section 37 of the Physicians ’ Act did not provide for review of medical decisions, but simply granted doctors discretion to seek a second opinion from a colleague. It did not provide for a mechanism which could be invoked by a patient. Insofar as the Government relied on the administrative procedure, diagnostic or therapeutic decisions were not decisions in the administrative sense and could not be challenged under the provisions of the Code of Administrative Procedure.", "172. The applicant further referred to the Council of Europe ’ s Committee of Ministers ’ Recommendation No. R (90)13 to Member States on Prenatal Genetic Screening, Prenatal Genetic Diagnosis, and Associated Genetic Counselling (see paragraph 81 above). It stated that where there was an increased risk of passing on a serious genetic disorder, access to preconception counselling and diagnostic services should be readily available. Moreover, the applicant argued that many Council of Europe member States included prenatal examinations as part of routine obstetric services. When an ultrasound scan indicated a possibility of the foetus having a genetic disorder, genetic counselling and examination were made available according to detailed guidelines adopted through State regulations. In the present case, however, the applicant had been unable to obtain timely access to genetic testing, which clearly contravened the applicable principles.", "173. The applicant submitted that the violation of her rights had originated also in the unregulated practice of conscientious objection. The refusal of the Kraków University Hospital to provide certain services on grounds of conscientious objection constituted a failure to ensure the availability and accessibility of reproductive health services. The public health care institutions, being public entities, had a duty to provide legal health services to the public. The State had a duty to ensure that the laws governing conscientious objection were complemented by implementing regulations or guidelines balancing the medical staff ’ s right to object against the patient ’ s rights to obtain access to lawful medical services.", "174. Furthermore, the applicant emphasised that in any event health care providers should not be allowed to rely on conscientious objection in respect of diagnostic services. In the present case Doctors K. R. and S. B. had effectively refused to provide diagnostic care out of concern that the applicant, having obtained the diagnostic results, might seek the termination of her pregnancy. The applicant submitted that under the established medical doctrine of informed consent, patients should be informed of all risks, benefits and alternatives to treatment in order to make a free and informed decision in their best interest. Refusing to diagnose a potentially serious illness on the basis that the diagnosis might subsequently lead to a therapeutic act to which the doctor concerned objected on grounds of conscience was incompatible with the very concept of conscientious objection.", "175. The applicant argued that this confusion was clearly demonstrated also by the Government ’ s argument that the decision whether to give the applicant access to genetic testing hinged on whether the termination of pregnancy was considered safe in her circumstances and, also, on whether the time-limits for termination of pregnancy provided for by the 1993 Act were respected. The Government had further stated that any genetic examination of a foetus should be performed prior to the 22nd week of pregnancy (see paragraph 1 64 above). These statements clearly implied the existence in medical practice in Poland at the material time of a misconception that all women, including the applicant, seeking to undergo prenatal genetic examination did so solely for the purpose of terminating their pregnancies. As a result, because of the politically charged climate surrounding abortion, women were often unable to obtain access to prenatal genetic testing.", "176. The applicant had also been denied adequate and timely medical care in the form of prenatal genetic examinations. Such testing would have made it possible to establish whether in her case the conditions existed for a lawful termination of pregnancy within the meaning of the 1993 Act. This breach of the Convention had occurred because the State had failed to provide a legal framework regulating disagreements between a pregnant woman and doctors as to the need to have prenatal genetic tests carried out or to terminate pregnancy (see, in the latter respect, the case of Tysiąc v. Poland, cited above, § 121 ). Nor was a procedure available for having decisions taken by doctors in respect of a woman ’ s request for termination of pregnancy reviewed or supervised, even on grounds of foetal abnormalities. The State was under a positive obligation to create a legal mechanism for handling such cases, including the provision of a precise time-frame within which a decision should be taken. However, the Polish State had failed in its duty.", "The applicant referred in this connection also to the lack of adequate regulations and oversight in cases such as hers, where doctors or public medical institutions refused to provide medical services and invoked the conscience clause.", "177. Under the applicable law, in order to be lawful, an abortion on grounds of foetal abnormality had to be carried out before the foetus became viable, which was normally thought to be in the 24th week of pregnancy. In the applicant ’ s case, the absence of a proper procedural framework had resulted in procrastination, with the result that during her pregnancy she had suffered growing fear, anguish and uncertainty. She had also been denied a right to a legal abortion which she had under domestic law.", "178. She finally submitted that she had given birth to child suffering from a severe ailment who required life - long medical care. As a result, her life and that of her family had been irremediably and negatively affected, not only by her suffering over the fate of her ill daughter, but also by the necessity of providing her with special day-to-day care and organising regular specialised medical care, which was costly and relatively difficult to obtain in Poland. She submitted that bringing up and educating a severely ill child had taken a toll on her mental health and well-being, as well as that of her other two children. Her husband had left her after the baby had been born.", "3. The Court ’ s assessment", "( a ) Applicability of Article 8 of the Convention", "179. The Court first observes that it is not disputed between the parties that Article 8 is applicable to the circumstances of the case in so far as it relates to the applicant ’ s right to respect for her private life.", "180. The Court reiterates that “private life” is a broad concept, encompassing, inter alia, the right to personal autonomy and personal development (see, among many other authorities, Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I ). The Court has held that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The notion of private life concerns subjects such as gender identification, sexual orientation and sexual life ( Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions 1997-I, p. 131, § 36) a person ’ s physical and psychological integrity ( Tysiąc v. Poland, cited above, § 107, ECHR 2007 ‑ IV ). The Court has also held that the notion of private live applies to decisions both to have or not to have a child or to become parents ( Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ IV ).", "181. The Court has previously found, citing with approval the case-law of the former Commission, that the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy. Consequently, also legislation regulating the interruption of pregnancy touches upon the sphere of private life, since whenever a woman is pregnant her private life becomes closely connected with the developing foetus ( Eur.Comm. HR, Bruggeman and Scheuten v. Germany, cited above; Boso v. Italy (dec.), no. 50490/99, ECHR 2002 ‑ VII; Vo v. France [GC], no. 53924/00, § 76, ECHR 2004 ‑ VIII; Tysiąc, cited above, §§ 106-107; A, B and C v. Ireland [GC], no. 25579/05, § 212, 16 December 2010 ). It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a mother or a father in relation to one another or vis ‑ à ‑ vis the foetus ( Vo v. France, cited above, § 82).", "182. The Court concludes that Article 8 of the Convention is applicable to the circumstances of the case.", "( b ) General principles", "183. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular that it is proportionate to one of the legitimate aims pursued by the authorities (see, among other authorities, Olsson v. Sweden (No. 1), judgment of 24 March 1988, Series A no. 130, § 67).", "184. In addition, there may also be positive obligations inherent in effective “respect” for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23).", "185. The Court has previously found States to be under a positive obligation to secure to its citizens their right to effective respect for their physical and psychological integrity ( Glass v. the United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; Sentges v. the Netherlands (dec.) no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-...; Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002; Odièvre v. France [GC], cited above, § 42). In addition, these obligations may involve the adoption of measures, including the provision of an effective and accessible means of protecting the right to respect for private life ( Airey v. Ireland, 9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X ) including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures in the context of abortion ( Tysiąc v. Poland, cited above, § 110; A, B and C v. Ireland [GC], cited above, § 245 ).", "186. The Court has already held that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a “living instrument which must be interpreted in the light of present-day conditions” (see, among many other authorities, E.B. v. France [GC], no. 43546/02, § 92, ECHR 2008-... ). The reasons for that conclusion are that the issue of such protection has not been resolved within the majority of the Contracting States themselves and that there is no European consensus on the scientific and legal definition of the beginning of life ( Vo v. France, cited above, § 82 ). However, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion (see ( A, B and C v. Ireland [GC], cited above, 16 December 2010, § § 235 and 237).", "Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected, the margin of appreciation accorded to a State ’ s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. In the absence of such common approach regarding the beginning of life, the examination of national legal solutions as applied to the circumstances of individual cases is of particular importance also for the assessment of whether a fair balance between individual rights and the public interest has been maintained (see also, for such an approach, A, B, and C cited above, § 214).", "187. Moreover, as in the negative obligation context, the State enjoys a certain margin of appreciation (see, among other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, § 49). While a broad margin of appreciation is accorded to the State as regards the circumstances in which an abortion will be permitted in a State, once that decision is taken the legal framework devised for this purpose should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” ( A, B and C v. Ireland [GC], cited above, § 249).", "188. The Court notes the applicant ’ s submission that the failure to allow her timely access to prenatal genetic tests had amounted to an interference with her rights guaranteed by Article 8. Furthermore, the Court has found that prohibition of the termination of pregnancies sought for reasons of health and /or well-being amounted to an interference with the applicants ’ right to respect for their private lives (see A., B., and C. v. Ireland, cited above, § 216).", "However, in the present case the Court is confronted with a particular combination of a general right of access to information about one ’ s health with the right to decide on the continuation of pregnancy. Compliance with the State ’ s positive obligation to secure to their citizens their right to effective respect for their physical and psychological integrity may necessitate, in turn, the adoption of regulations concerning access to information about an individual ’ s health ( Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998 ‑ I; Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X; K.H. and Others v. Slovakia, no. 32881/04, §§ 50-56, ECHR 2009 ‑ ... (extracts) ). Hence, and since the nature of the right to decide on the continuation of pregnancy is not absolute, the Court is of the view that the circumstances of the present case are more appropriately examined from the standpoint of the respondent State ’ s positive obligations arising under this provision of the Convention (see, mutatis mutandis, Tysiąc v. Poland, cited above, § 108 ).", "189. The boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both the negative and positive contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; and Różański v. Poland, no. 55339/00, § 61, 18 May 2006). While the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must – in case of a therapeutic abortion – be also assessed against the positive obligations of the State to secure the physical integrity of mothers ‑ to ‑ be (see Tysiąc v. Poland, cited above, § 107).", "190. The notion of “respect” is not clear ‑ cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case. Nonetheless, in assessing the positive obligations of the State it must be borne in mind that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see, e.g., Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008; Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V). Compliance with requirements imposed by the rule of law presupposes that the rules of domestic law must provide a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, p. 32, § 67; Segerstedt ‑ Wiberg and Others v. Sweden, no. 62332/00, § 76, ECHR 2006 ‑ VII ).", "191. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 12 ‑ 13, § 24). Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision ‑ making process is fair and such as to afford due respect for the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests ( see, mutatis mutandis, W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 28 ‑ 29, §§ 62 and 64). The Court has already held that in the context of access to abortion a relevant procedure should guarantee to a pregnant woman at least a possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision (see Tysiąc v. Poland, cited above, § 117).", "( c ) Compliance with Article 8 of the Convention", "192. When examining the circumstances of the present case, the Court cannot overlook its general national context. It notes that the 1993 Act specifies situations in which abortion is allowed. A doctor who terminates a pregnancy in breach of the conditions specified in that Act is guilty of a criminal offence punishable by up to three years ’ imprisonment (see paragraph 70 above).", "193. The Court has already found that the legal restrictions on abortion in Poland, taken together with the risk of their incurring criminal responsibility under Article 156 § 1 of the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case (see Tysiąc v. Poland, no. 5410/03, § 116, ECHR 2007 ‑ IV). It further notes that in the circumstances of the present case this was borne out also by the fact that the T. hospital ’ s lawyer was asked to give an opinion on steps to be taken with a view to ensuring that the conditions of the 1993 Act as to the availability of abortion were respected. The Court is of the view that provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this chilling effect.", "194. The Court further notes that in its fifth periodical report to the ICCPR Committee, relevant for the assessment of the circumstances obtaining at the relevant time, the Polish Government acknowledged, inter alia, that there had been deficiencies in the manner in which the 1993 Act had been applied in practice (see paragraph 84 above). It further notes the concern expressed by the Committee on the Elimination of Discrimination against Women as regards access by women in Poland to reproductive health services and to lawful abortion (see paragraph 86 above).", "195. The Court notes that in its judgment in the case Tysiąc v. Poland, referred to above, it highlighted the importance of procedural safeguards in the context of the implementation of the 1993 Act in situations where a pregnant woman had objective grounds for fearing that pregnancy and delivery would have a serious negative impact on her health. In that case the Court held that Polish law did not contain any effective procedural mechanisms capable of determining whether the conditions existed for obtaining a lawful abortion on the grounds of danger to the mother ’ s health which the pregnancy might present, or of addressing the mother ’ s legitimate fears (see Tysiąc v. Poland, cited above, § § 119 – 124, ECHR 2007 ‑ IV).", "196. The Court discerns certain differences between the issues concerned in the Tysiąc v. Poland case and those to be examined in the context of the present case, where the applicant persistently but unsuccessfully sought access to prenatal genetic testing. It was not access to abortion as such which was primarily in issue, but essentially timely access to a medical diagnostic service that would, in turn, make it possible to determine whether the conditions for lawful abortion obtained in the applicant ’ s situation or not. Hence, the starting point for the Court ’ s analysis is the question of an individual ’ s access to information about her or his health.", "197. The right of access to such information falling within the ambit of the notion of private life can be said to comprise, in the Court ’ s view, on the one hand, a right to obtain available information on one ’ s condition. The Court further considers that during pregnancy the foetus ’ condition and health constitute an element of the pregnant woman ’ s health (see Eur. Comm. HR, Bruggeman and Schouten v. Germany, cited above, § 59, mutatis mutandis ). The effective exercise of this right is often decisive for the possibility of exercising personal autonomy, also covered by Article 8 of the Convention ( Pretty v. the United Kingdom, cited above, § 61, ECHR 2002 ‑ III ) by deciding, on the basis of such information, on the future course of events relevant for the individual ’ s quality of life (e.g. by refusing consent to medical treatment or by requesting a given form of treatment).", "The significance of timely access to information concerning one ’ s condition applies with particular force to situations where rapid developments in the individual ’ s condition occur and his or her capacity to take relevant decisions is thereby reduced. In the same vein, in the context of pregnancy, the effective access to relevant information on the mother ’ s and foetus ’ health, where legislation allows for abortion in certain situations, is directly relevant for the exercise of personal autonomy.", "198. In the present case the essential problem was precisely that of access to medical procedures, enabling the applicant to acquire full information about the foetus ’ health.", "While the Convention does not guarantee as such a right to free medical care or to specific medical services, in a number of cases the Court has held that Article 8 is relevant to complaints about insufficient availability of health care services ( Nitecki v. Poland (dec.), cited above; Pentiacova and Others v. Moldova (dec.), cited above ). The present case differs from cases where the applicants complained about denial of or difficulties in obtaining access to certain health services for reasons of insufficient funding or availability. The Court has already found that it has not been argued, let alone shown, that there were any objective reasons why the genetic tests were not carried out immediately after the suspicions as to the foetus ’ condition had arisen but only after a lengthy delay (see paragraph 154 above). The difficulties the applicant experienced seem to have been caused, in part, by reticence on the part of certain doctors involved to issue a referral, and also by a certain organisational and administrative confusion in the health system at the material time as to the procedure applicable in cases of patients seeking services available outside their particular region of the then Medical Insurance Fund and the modalities of reimbursement between the regions of costs incurred in connection with such services.", "199. The Court emphasises the relevance of the information which the applicant sought to obtain by way of genetic testing to the decision concerning continuation of her pregnancy. The 1993 Act allows for an abortion to be carried out before the foetus is capable of surviving outside the mother ’ s body if prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life ‑ threatening ailment. Hence, access to full and reliable information on the foetus ’ health is not only important for the comfort of the pregnant woman but also a necessary prerequisite for a legally permitted possibility to have an abortion to arise.", "200. In this context, the Court reiterates its finding made in the case of Tysiąc v. Poland that once the State, acting within the limits of the margin of appreciation, referred to above, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain it. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to exercise her right of access to lawful abortion ( Tysiąc v. Poland, no. 5410/03, §§ 116 - 124, ECHR 2007 ‑ IV ). In other words, if the domestic law allows for abortion in cases of foetal malformation, there must be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus ’ health is available to pregnant women.", "201. In the present case, the Court reiterates that six weeks elapsed from the date when the first concerns arose regarding the foetus ’ health until their confirmation by way of genetic tests (see also paragraph 152 above).", "202. The Court stresses that it is not its function to question doctors ’ clinical judgment (see Glass v. the United Kingdom, cited above). It is therefore not for the Court to embark on any attempt to determine the severity of the condition with which the doctors suspected that the foetus was affected, or whether that suspected condition could have been regarded as entitling the applicant to a legal abortion available under the provisions of section 4 (a) of that Act. In the Court ’ s view this is wholly irrelevant for the assessment of the case at hand, given that the legal obligation to secure access to pre-natal genetic testing arose under the provisions of the 1993 Act regardless of the nature and severity of the suspected condition (see paragraph 66 above).", "203. The Court observes that the nature of the issues involved in a woman ’ s decision to terminate a pregnancy is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. The Court is of the view that there was ample time between week 18 of the pregnancy, when the suspicions first arose, and week 22, the stage of pregnancy at which it is generally accepted that the foetus is capable of surviving outside the mother ’ s body and regarded as time-limit for legal abortion, to carry out genetic testing. The Court notes that the Supreme Court criticised the conduct of the medical professionals who had been involved in the applicant ’ s case and the procrastination shown in deciding whether to give the applicant a referral for genetic tests. Such a critical assessment on the part of the highest domestic judicial authority is certainly, in the Court ’ s view, of relevance for the overall assessment of the circumstances of the case.", "204. As a result, the applicant was unable to obtain a diagnosis of the foetus ’ condition, established with the requisite certainty, by genetic tests within the time-limit for abortion to remain a lawful option for her.", "205. In so far as the Government argued that in the present case access to genetic testing was closely linked, to the point of being identical, with access to abortion (see paragraph 112 above), the Court observes that prenatal genetic tests serve various purposes and they should not be identified with encouraging pregnant women to seek an abortion. Firstly, they can simply dispel the suspicion that the foetus was affected with some malformation; secondly, a woman carrying the foetus concerned can well choose to carry the pregnancy to term and have the baby; thirdly, in some cases (although not in the present one), prenatal diagnosis of an ailment makes it possible to embark on prenatal treatment; fourthly, even in the event of a negative diagnosis, it gives the woman and her family time to prepare for the birth of a baby affected with an ailment, in terms of counselling and coping with the stress occasioned by such a diagnosis. Furthermore, the Court emphasises that the 1993 Act clearly provides for a possibility of abortion in cases of certain malformations. It is not in dispute that some of these malformations could only be detected by way of prenatal genetic tests. Therefore the Government ’ s argument has failed to convince the Court.", "206. In so far as the Government referred in their submissions to the right of physicians to refuse certain services on grounds of conscience and referred to Article 9 of the Convention, the Court reiterates that the word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief (see Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.", "207. The Court further observes that the Government referred to the Ordinance of the Minister of Health of 22 January 1997 (see paragraph 68 above), arguing that it provided for a procedure governing decisions on access to abortion. However, the Court has already held that this Ordinance did not provide for any procedural framework to address and resolve controversies between the pregnant woman and her doctors or between the doctors themselves as to the availability of lawful abortion in an individual case (see Tysiąc v. Poland, cited above, § 121).", "208. The Court concludes that it has not been demonstrated that Polish law as applied to the applicant ’ s case contained any effective mechanisms which would have enabled the applicant to seek access to a diagnostic service, decisive for the possibility of exercising her right to take an informed decision as to whether to seek an abortion or not.", "209. In so far as the Government relied on the instruments of civil law as capable of addressing the applicant ’ s situation, the Court has already held, in the context of the case of Tysiąc v. Poland, cited above, that the provisions of the civil law as applied by the Polish courts did not afford the applicant a procedural instrument by which she could have fully vindicated her right to respect for her private life. The civil law remedy was solely of a retroactive and compensatory character. The Court was of the view that such retrospective measures alone were not sufficient to provide appropriate protection of personal rights of a pregnant woman in the context of a controversy concerning the determination of access to lawful abortion and emphasised the vulnerability of the woman ’ s position in such circumstances (see Tysiąc v. Poland, no. 5410/03, § 125, ECHR 2007 ‑ IV ). Given the retrospective nature of compensatory civil law, the Court fails to see any grounds on which to reach a different conclusion in the present case.", "It therefore considers that it had not been demonstrated that Polish law contained any effective mechanisms which would have enabled the applicant to have access to the available diagnostic services and to take, in the light of their results, an informed decision as to whether to seek an abortion or not.", "210. Consequently, the Court considers that neither the medical consultation nor litigation options relied on by the Government constituted effective and accessible procedures which would have allowed the applicant to establish her right to a lawful abortion in Poland. The uncertainty generated by the lack of legislative implementation of Article 4 (a) 1.2 of the 1993 Family Planning Act, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Poland on grounds referred to in this provision and the reality of its practical implementation ( Christine Goodwin v. the United Kingdom [GC], cited above, at § § 77-78; and S. H. and Others v. Austria, cited above, at § 74, mutatis mutandis; A, B and C v. Ireland [GC], no. 25579/05, § § 263-264, 16 December 2010 ).", "211. Having regard to the circumstances of the case as a whole, it cannot therefore be said that, by putting in place legal procedures which make it possible to vindicate her rights, the Polish State complied with its positive obligations to safeguard the applicant ’ s right to respect for her private life in the context of controversy over whether she should have had access to, firstly, prenatal genetic tests and subsequently, an abortion, had the applicant chosen this option for her.", "212. The Court therefore dismisses the Government ’ s preliminary objection concerning civil litigation as an effective remedy. Furthermore, the Court, having regard to the circumstances of the case seen as a whole, has already found insufficient the award made by the domestic courts in the civil proceedings for the violations alleged by the applicant (see paragraphs 103 ‑ 108 above). Accordingly, it dismisses also the Government ’ s preliminary objection that the applicant had lost her status of a victim of a breach of Article 8 of the Convention.", "213. The Court reiterates that effective implementation of Article 4 (a) 1.2 of the 1993 Family Planning Act would necessitate ensuring to pregnant women access to diagnostic services which would make it possible for them to establish or dispel a suspicion that the foetus may be affected with ailments. The Court has already found that in the present case it has not been established that such services were unavailable. Moreover, an effective implementation of the provisions of the 1993 Act cannot, in the Court ’ s view, be considered to impose a significant burden on the Polish State since it would amount to rendering operational a right to abortion already accorded in that Act in certain narrowly defined circumstances, including in certain cases of foetal malformation ( A, B and C v. Ireland [GC], cited above, § 261, mutatis mutandis ). While it is not for this Court to indicate the most appropriate means for the State to comply with its positive obligations ( Airey v. Ireland judgment, § 26; cited above), the Court notes that the legislation in many Contracting States has specified the conditions governing effective access to a lawful abortion and put in place various implementing procedural and institutional procedures ( Tysiąc v. Poland judgment, § 123).", "214. The Court concludes that the authorities failed to comply with their positive obligations to secure to the applicant effective respect for her private life and that there has therefore been a breach of Article 8 of the Convention.", "D. Alleged violation of Article 13 of the Convention", "215. The applicant complained that the failure of the Polish authorities to create a legal mechanism that would have allowed her to challenge the doctors ’ decisions concerning the advisability of and access to prenatal examinations in a timely manner had amounted also to a breach of Article 13 of the Convention. Had such a framework existed, it would have made it possible for her to consider whether she wanted to have the pregnancy terminated in the conditions provided for in the 1993 Act.", "Article 13 of the Convention reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "216. The Government submitted that Polish law provided for a procedure governing the taking of medical decisions concerning abortion on medical grounds. They referred to the 1993 Act and to the Ordinance of the Minister of Health of 22 January 1997. They further referred to section 37 of the Medical Profession Act 199 6. They argued that it provided for the possibility of reviewing a therapeutic decision taken by a specialist.", "217. The applicant submitted that the Polish legal framework governing the termination of pregnancy had proved to be inadequate. It had failed to provide her with reasonable procedural protection to safeguard her rights guaranteed by Article 8 of the Convention.", "218. The Court observes that the applicant ’ s complaint about the State ’ s failure to put in place an adequate legal framework allowing for the determination of disputes arising in the context of a determination of access to diagnostic services relevant for the application of the 1993 Act, insofar as it allowed for legal abortion, essentially overlaps with the issues which have been examined under Article 8 of the Convention. The Court has found a violation of this provision on account of the State ’ s failure to meet its positive obligations. It holds that no separate issue arises under Article 13 of the Convention (see Tysiąc v. Poland, cited above, § 135).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "219. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "220. The applicant claimed compensation for pecuniary damage in the amount of EUR 9 ,000. This sum consisted of the estimated future medical expenses she would be obliged to bear in connection with her daughter ’ s condition. She estimated her expenditure on adequate medical treatment which her daughter would have to seek in the future until her adulthood on the basis of information available on the website of the British Turner Association.", "221. The applicant further requested the Court to award her just satisfaction in respect of non-pecuniary damage. She referred to the Court ’ s judgment in the case of Draon v. France [GC], no. 1513/03, 6 October 2005. She further submitted that the intentional failure to provide the necessary medical services, the humiliating treatment of the applicant by doctors and the lack of protection and effective redress from the State should be considered as an aggravating factor and influence the amount of non-pecuniary damages to be awarded in the case. She emphasised that she had suffered and still experiences pain, distress and suffering which were and remain causally connected to the events complained of before the Court. She claimed EUR 65,000 in this respect.", "222. The Government were of the view that the applicant had not sustained pecuniary damage in the amount claimed, which was purely speculative and exorbitant.", "223. As to the applicant ’ s claim for non ‑ pecuniary damage, the Government submitted that it was excessive and should therefore be rejected.", "224. The Court observes that the applicant ’ s claim for pecuniary damage was based on the medical condition of her daughter.", "The Court reiterates that it has found violations of the Convention on account of the manner in which the applicant ’ s requests were handled by health professionals and because of the State ’ s failure to create an effective procedural mechanism by which access to diagnostic services relevant for establishing the conditions of availability of legal abortion under Polish law could be secured. The Court does not discern any causal link between the violations found and the claim in respect of pecuniary damage. Accordingly, no award can be made under this head.", "225. On the other hand, the Court has found that the applicant experienced considerable anguish and suffering, having regard to her fears about the situation of her family and her apprehension as to how she would be able to cope with the challenge of educating another child who was likely to be affected with a lifelong medical condition and to ensure its welfare and happiness. Moreover, the applicant had been humiliated by doctors ’ lack of sensibility to her plight. The Court has found a breach of both Articles 3 and 8 of the Convention. Having regard to the circumstances of the case seen as a whole and deciding on equitable basis, the Court awards the applicant EUR 45 ,000.", "B. Costs and expenses", "226. The applicant claimed reimbursement of the costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. The applicant had instructed two Polish lawyers to represent her before the Court.", "227. The applicant claimed, with reference to invoices they had submitted, EUR 11,529 (comprising EUR 9,450 in fees plus VAT of 22 per cent) in respect of legal fees for work carried out by Ms M. Gąsiorowska and Ms I. Kotiuk who represented the applicant in the domestic proceedings and before the Court. Legal fees corresponded to 189 hours spent in preparation of the applicant ’ s case before the domestic courts and the case before the Court, at an hourly rate of EUR 50.", "The applicant further claimed reimbursement of travel costs borne in connection with the civil case conducted before the courts in Cracow in the amount of PLN 1,400 and EUR 1,000 in respect of telephone bills for conversations with the applicant in the years 2005 ‑ 2008.", "228. The applicant further argued that the case had raised complicated issues of law which necessitated expert advice in reproductive rights law. She claimed, with reference to invoices, EUR 8, 223,75 in respect of legal fees for work carried out by an expert of the Center for Reproductive Rights, based in New York. Legal fees corresponded to 85 hours spent in preparation of the applicant ’ s case, at an hourly rate of USD 150, equivalent to EUR 96, 75. She argued that it had been well ‑ established in the Court ’ s case ‑ law that costs could reasonably be incurred by more than one lawyer and that an applicant ’ s lawyers could be situated in different jurisdictions ( Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998 ‑ III ). This was justified by the novelty and complexity of the issues involved in the case which was comparable to the case of Tysiąc v. Poland, concerning access to legal abortion in Poland, but which related to different legal issues. She submitted that certain consequences followed from the involvement of foreign lawyers. In Tolstoy Miloslavsky v. the United Kingdom the Court stated that “given the great differences at present in rates of fees from one Contracting State to another, a uniform approach to the assessment of fees ... does not seem appropriate” ( Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, § 77, Series A no. 316 ‑ B).", "229. The Government requested the Court to decide on the reimbursement of legal costs and expenses only in so far as these costs and expenses were actually and necessarily incurred and were reasonable as to the quantum. They referred to the Court ’ s judgment in the case of Eckle v. Germany ( Eckle v. Germany, 15 July 1982, § 25, Series A no. 51).", "230. The Government further submitted, in respect of the travel costs borne by the applicant ’ s lawyers in 2005 and the amount claimed in respect of phone calls made from 2004 until 2008, that the applicant had failed to substantiate these costs by submitting relevant bills or documents.", "231. They further submitted that the applicant had failed to provide the Court with information on lowest legal rates applicable in Poland. They were of the view that in cases of great importance to society, such as the present one, the lawyers should have followed good professional practices and, accordingly, either have acted pro bono or significantly reduced their fees. Generally, the Government were of the view that the amounts claimed by the applicant were exorbitant and could not be reimbursed.", "232. The Government took the same position in respect of the claim concerning costs incurred by the Centre for Reproductive Rights.", "233. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000 ‑ IX). In the light of the documents submitted, the Court is satisfied that the legal costs concerned in the present case have actually been incurred.", "234. As to the amounts concerned, the Court first points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case (see, among many other authorities, Sunday Times v. the United Kingdom (no. 1) ( former Article 50), judgment of 6 November 1980, Series A no. 38, § 30). The Court notes, in this connection, that the issues involved in the present case have given rise to a heated and ongoing legal debate in Poland. It is also relevant to note in this connection the scarcity of relevant case-law of the Polish courts and lack of any established consensus in legal circles as to the degree and scope of protection which reproductive rights should enjoy under Polish law. The Court is further of the view that the Convention issues involved in the case were also of considerable complexity.", "235. On the whole, having regard both to the national and the Convention law aspects of the case, the Court is of the opinion that they justified recourse to three lawyers, including an expert in reproductive rights issues. As to the hourly rates claimed, the Court is of the view that they are consistent with domestic practice in both jurisdictions where the lawyers representing the applicant practise and cannot be considered excessive.", "236. On the other hand, as to the costs claimed by the applicant, the Court notes that no documents have been submitted to show that these costs have actually been incurred.", "237. The Court, deciding on an equitable basis and having regard to the details of the claims submitted, awards the applicant a global sum of EUR 1 5 ,000 in respect of fees and expenses, plus any tax on that amount that may be chargeable to the applicant.", "C. Default interest", "238. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant was born in 1954 and lives in Rome.", "12. In 2002 she had recourse to assisted reproduction techniques, undergoing in vitro fertilisation (IVF) treatment with her partner at the Centre for reproductive medicine at the European Hospital (“the centre”) in Rome. The five embryos obtained from the IVF treatment were placed in cryopreservation.", "13. Before the embryos could be implanted the applicant’s partner died, on 12 November 2003, in a bomb attack in Nasiriya (Iraq) while he was reporting on the war.", "14. After deciding not to have the embryos implanted, the applicant sought to donate them to scientific research and thus contribute to promoting advances in treatment for diseases that are difficult to cure.", "15. According to the information provided at the hearing before the Grand Chamber, the applicant made a number of unsuccessful verbal requests for release of the embryos at the centre where they were being stored.", "16. In a letter of 14 December 2011, the applicant asked the Director of the centre to release the five cryopreserved embryos so that they could be used for stem-cell research. The Director refused to comply with her request on the ground that this type of research was banned and punishable as a criminal offence in Italy under section 13 of Law no. 40 of 19 February 2004 (“Law no. 40/2004”).", "17. The embryos in question are currently stored in the cryogenic storage bank at the centre where the IVF treatment was carried out.", "III. COUNCIL OF EUROPE DOCUMENTS", "A. Recommendation 1046 (1986) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes", "“...", "6. Aware that the progress [of medical science and technology] has made the legal position of the embryo and foetus particularly precarious, and that their legal status is at present not defined by law;", "7. Aware that adequate provisions governing the use of living or dead embryos and foetuses do not at present exist;", "8. Convinced that, in view of scientific progress which makes it possible to intervene in developing human life from the moment of fertilisation, it is urgent to define the extent of its legal protection;", "9. Having regard to the variety of ethical opinions on the question of using the embryo or the foetus or their tissues, and to the conflicts between values which arise;", "10. Considering that human embryos and foetuses must be treated in all circumstances with the respect due to human dignity, and that use of materials and tissues therefrom must be strictly limited and regulated ... to purposes which are clearly therapeutic and for which no other means exist;", "...", "13. Stressing the need for European co-operation,", "14. [The Parliamentary Assembly r]ecommends that the Committee of Ministers:", "a. call on the governments of the member states:", "...", "14.1.2. to limit the use of human embryos and foetuses and materials and tissues therefrom in an industrial context to purposes which are strictly therapeutic and for which no other means exist, according to the principles set out in the appendix, and to bring their legislation into line with these principles or to enact rules in accordance therewith which should inter alia specify the conditions in which removal and use may be undertaken for a diagnostic or therapeutic purpose;", "14.1.3. to forbid any creation of human embryos by fertilisation in vitro for the purposes of research during their life or after death;", "14.1.4. to forbid anything that could be considered as undesirable use or deviations of these techniques, including:", "...", "research on viable human embryos;", "experimentation on living human embryos, whether viable or not;", "...”", "B. Recommendation 1100 (1989) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses in scientific research", "“...", "7. Considering that the human embryo, though displaying successive phases in its development ... displays also a progressive differentiation as an organism and none the less maintains a continuous biological and genetic identity;", "8. Recalling the need for European co-operation and for the widest possible regulation in order to overcome the contradictions, risks and foreseeable shortcomings of exclusively national standards in these fields,", "...”", "54. The relevant passages of the Appendix to that Recommendation read as follows.", "“B. On live pre-implantation embryos:", "4. In accordance with Recommendations 934 (1982) and 1046 (1986), investigations of viable embryos in vitro shall only be permitted:", "for applied purposes of a diagnostic nature or for preventive or therapeutic purposes;", "if their non-pathological genetic heritage is not interfered with.", "5. ... research on living embryos must be prohibited, particularly:", "if the embryo is viable;", "if it is possible to use an animal model;", "if not foreseen within the framework of projects duly presented to and authorised by the appropriate public health or scientific authority or, by delegation, to and by the relevant national multidisciplinary committee;", "if not within the time-limits laid down by the authorities mentioned above.", "...", "H. Donation of human embryological material", "20. The donation of human embryological material shall be authorised solely for scientific research on diagnostic, prevention or therapeutic purposes. Its sale shall be prohibited.", "21. The intentional creation and/or keeping alive of embryos or foetuses whether in vitro or in utero for any scientific research purpose, for instance to obtain genetic material, cells, tissues or organs therefrom, shall be prohibited.", "22. The donation and use of human embryological material shall be conditional on the freely given written consent of the donor parents.", "23. The donation of organs shall be devoid of any commercial aspect. The purchase or sale of embryos or foetuses or parts thereof by their donor parents or other parties, and their importation or exportation, shall also be prohibited.", "24. The donation and use of human embryological material for the manufacture of dangerous and exterminatory biological weapons shall be forbidden.", "25. For the whole of this recommendation, ‘viable’ embryos shall be understood to mean embryos which are free of biological characteristics likely to prevent their development; however, the non-viability of human embryos and foetuses shall be determined solely by objective biological criteria based on the embryo’s intrinsic defects.”", "C. Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) of 4 April 1997", "Article 2 – Primacy of the human being", "“The interests and welfare of the human being shall prevail over the sole interest of society or science.”", "Article 18 – Research on embryos in vitro", "“1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo.", "2. The creation of human embryos for research purposes is prohibited.”", "Article 27 – Wider protection", "“None of the provisions of this Convention shall be interpreted as limiting or otherwise affecting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention.”", "D. Additional Protocol to the Convention on Human Rights and Biomedicine concerning Biomedical Research, of 25 January 2005", "Article 2 – Scope", "“1. This Protocol covers the full range of research activities in the health field involving interventions on human beings.", "2. This Protocol does not apply to research on embryos in vitro. It does apply to research on foetuses and embryos in vivo.", "...”", "E. Report by the Working Party on the Protection of the Human Embryo and Fetus of the Steering Committee on Bioethics, published on 19 June 2003 – Conclusion", "“This report aimed at giving an overview of current positions found in Europe regarding the protection of the human embryo in vitro and the arguments supporting them.", "It shows a broad consensus on the need for the protection of the embryo in vitro. However, the definition of the status of the embryo remains an area where fundamental differences are encountered, based on strong arguments. These differences largely form the basis of most divergences around the other issues related to the protection of the embryo in vitro.", "Nevertheless, even if agreement cannot be reached on the status of the embryo, the possibility of re-examining certain issues in the light of the latest developments in the biomedical field and related potential therapeutic advances could be considered. In this context, while acknowledging and respecting the fundamental choices made by the different countries, it seems possible and desirable with regard to the need to protect the embryo in vitro on which all countries have agreed that common approaches be identified to ensure proper conditions for the application of procedures involving the creation and use of embryos in vitro. The purpose of this report is to aid reflection towards that objective.”", "F. Resolution 1352 (2003) of the Parliamentary Assembly of the Council of Europe on human stem cell research", "“...", "3. Human stem cells may be derived from a growing number of tissues and fluids from humans of any age and are not limited to embryonic sources.", "...", "5. The harvesting of embryonic stem cells for the time being necessitates the destruction of human embryos.", "...", "7. The Assembly points out that a number of embryonic human stem cell lines suitable for scientific research are already available worldwide.", "...", "10. The destruction of human beings for research purposes is against the right to life of all humans and against the moral ban on any instrumentalisation of humans.", "11. Therefore the Assembly calls on member states:", "11.1. to promote stem cell research as long as it respects the life of human beings in all states of their development;", "11.2. to encourage scientific techniques that are not socially and ethically divisive in order to advance the use of cell pluripotency and develop new methods in regenerative medicine;", "11.3. to sign and ratify the Oviedo Convention to make effective the prohibition of the production of human embryos for research;", "11.4. to promote common European basic research programmes in the field of adult stem cells;", "11.5. to ensure that, in countries where it is allowed, any research on stem cells involving the destruction of human embryos is duly authorised and monitored by the appropriate national bodies;", "11.6. to respect the decision of countries not to take part in international research programmes which are against ethical values enshrined in national legislation and not to expect such countries to contribute either directly or indirectly to such research;", "11.7. to give priority to the ethical aspects of research over those of a purely utilitarian and financial nature;", "11.8. to promote the establishment of bodies where scientists and representatives from civil society can discuss different kinds of projects on human stem cell research with a view to strengthening transparency and democratic accountability.”", "G. Recommendation Rec(2006)4 of the Committee of Ministers to member states on research on biological materials of human origin, adopted by the Committee of Ministers on 15 March 2006", "55. This Recommendation, which does not apply to embryonic and foetal tissues (see Article 2, paragraph 3), aims to protect the fundamental rights of persons whose biological material might be used for a research project after having been removed and stored (i) for a specific research project prior to adoption of the Recommendation; (ii) for future unspecified research; or (iii) as residual material originally removed for clinical or forensic purposes. This Recommendation seeks, inter alia, to promote the establishment of practice guidelines on the part of the member States and to reduce to a minimum the risks related to research activities for the private life of the persons concerned. It also lays down rules about obtaining and collecting biological materials.", "H. Resolution 1934 (2013) of the Parliamentary Assembly of the Council of Europe on ethics in science and technology", "“...", "2. ... [T]he Assembly holds that more concerted ethical consideration should be given – at national, supraregional and global levels – to the goals and purposes pursued by science and technology, to the instruments and methods they employ, to their possible consequences and side effects, and to the overall system of rules and behaviour within which they operate.", "3. The Assembly believes that having a permanent structure for ethical reflection at the global level would make it possible to address ethical issues as a ‘moving target’, rather than fixing an ‘ethical code’, and enable a periodic re-questioning of even basic assumptions, such as the definition of ‘human identity’ or ‘human dignity’.", "4. The Assembly welcomes the initiative of UNESCO in setting up the World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) with a view to engaging in ongoing ethical reflection and exploring the possibilities of drafting and periodically reviewing a set of fundamental ethical principles based on the Universal Declaration of Human Rights. It believes that the Council of Europe should contribute to this process.", "5. In this respect, the Assembly recommends that the Secretary General of the Council of Europe consider establishing a flexible and informal structure for ethical reflection, through co-operation between relevant Assembly committees and members of relevant expert committees, including the Committee on Bioethics (DH-BIO), with a view to identifying emerging ethical issues and main ethical principles that could guide political and legal action in Europe.", "6. To reinforce the common European framework of ethics in science and technology, the Assembly recommends that member States, which have not yet done so, sign and ratify the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164, ‘Oviedo Convention’) and its protocols and fully engage in the work of the Committee on Bioethics.", "...", "10. The Assembly invites the European Union and UNESCO to co-operate with the Council of Europe to reinforce the common European framework of ethics in science and technology and, to this end:", "10.1 create European and regional platforms to regularly exchange experiences and best practice covering all fields of science and technology, using the experience acquired in the framework of the European Conference of National Ethics Committees (COMETH) initiated by the Council of Europe, and more recently the Forum of National Ethics Councils (NEC Forum) funded by the European Commission, and the meetings of the Council of Europe Committee on Bioethics;", "10.2 draft and periodically review a set of fundamental ethical principles to be applied to all fields of science and technology;", "10.3 provide further guidance to help member States harmonise ethical rules and monitoring procedures, building on the positive impact of ethical requirements under the European Commission’s Seventh Framework Programme for Research and Technological Development (2007-2013) (FP7).”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Law no. 40 of 19 February 2004, in force since 10 March 2004 (“Rules governing medically assisted fertilisation”)", "Section 1 – Purpose", "“(1) In order to remedy reproductive problems arising as a result of human sterility or infertility, recourse may be had to medically assisted reproduction in the conditions and in accordance with the procedures provided for by this Law, which guarantees the rights of all the persons concerned, including those of the subject thus conceived.”", "Section 5 – Conditions of access", "“... [only] couples [composed of persons] who have reached the age of majority, are of opposite sex, are married or cohabiting, are of reproductive age and living may have recourse to assisted reproduction techniques.”", "Section 13 – Experiments on human embryos", "“(1) It is forbidden to experiment on a human embryo.", "(2) Clinical and experimental research on a human embryo shall be authorised only on condition that it is performed exclusively for therapeutic or diagnostic purposes with the aim of protecting the health and development of the embryo and that no alternative methods exist.", "...", "(4) Anyone who infringes the prohibition provided for in subsection 1 shall be liable to a term of imprisonment ranging from two to six years and to a fine of 50,000 to 150,000 euros. ...", "(5) Any health professional convicted of an offence provided for in this section shall be debarred from practising medicine for one to three years.”", "Section 14 – Limits on application of technology to embryos", "“(1) The cryopreservation or destruction of embryos is forbidden, without prejudice to the provisions of Law no. 194 of 22 May 1978 [rules on social protection of maternity and voluntary termination of pregnancy].", "(2) Embryo production techniques shall not result in the creation of a higher number of embryos than that strictly required for a single and simultaneous implantation and in no circumstances shall more than three embryos be created.", "(3) Where the embryos cannot be implanted into the uterus for reasons of serious and proven force majeure affecting the state of health of the woman concerned which were unforeseeable at the time of fertilisation, cryopreservation of the embryos shall be authorised until the date of transfer, which shall be effected as soon as possible.”", "18. By judgment no. 151 of 1 April 2009 (see paragraphs 29-31 below), the Constitutional Court declared unconstitutional the provision in section 14(2) of Law no. 40/2004 according to which embryo production techniques must not result in the creation of a higher number of embryos than that strictly required for “a single and simultaneous implantation and in no circumstances shall more than three embryos be created”. It also declared section 14(3) unconstitutional on the ground that it did not provide that the transfer of the embryos should be performed without jeopardising the woman’s health.", "B. Opinion of the National Bioethics Committee on adoption for birth (“ADP”) (18 November 2005)", "19. Following the enactment of Law no. 40/2004, the National Bioethics Committee examined the issue of the fate of abandoned cryopreserved embryos, the Law making no specific provision in this regard but implicitly banning the use of surplus embryos for scientific research.", "20. In that connection the Committee issued an opinion in favour of “adoption for birth”, a practice enabling a couple or a woman to adopt surplus embryos for implantation and thus allowing the embryos in question to be used for the purposes of bringing them to life and starting a family.", "C. Ministry of Health decree of 11 April 2008 (“Explanatory notes on assisted reproduction”)", "“... Cryopreservation of embryos: ... There are two categories of embryos amenable to cryopreservation: the first is embryos that are awaiting implantation, including those that were cryopreserved prior to the entry into force of Law no. 40 of 2004; the second is embryos that have been certified as abandoned ...”", "D. Final report of the “Study Commission on embryos” of 8 January 2010", "21. By a decree of 25 June 2009, the Ministry of Health appointed a Study Commission on embryos stored in cryopreserved form in assisted reproduction centres. The following is a passage from the final report by that Commission, adopted by a majority on 8 January 2010.", "“The legal ban on the destruction of embryos is to be understood as prohibiting the interruption of cryopreservation other than in two cases: where the thawed embryo can be implanted in the uterus of the mother or another woman willing to have it implanted; or where natural death or permanent loss of viability as an organism can be medically certified. In the light of current [scientific] knowledge, the viability of an embryo cannot be certified unless it has been thawed, thus creating the paradoxical situation in which, once thawed, an embryo cannot be frozen a second time and if it is not immediately implanted into the uterus death will inevitably ensue. Hence, a tutiorist prospect of frozen embryos being stored for an indeterminate period. However, it can be assumed that advances in scientific research will make it possible to determine the criteria and methods for diagnosing death, or in any event loss of viability, of cryopreserved embryos. It will thus be possible to overcome the present – and legally inevitable – paradox of potentially indefinite cryopreservation. Pending those results, [it should be reaffirmed that] the explicit ban under section 14 of Law no. 40 of 2004 on the destruction of embryos, including therefore frozen embryos, cannot be ignored. That is not all, for as regards the fate of surplus embryos, the authors of Law no. 40 opted for their storage and not their destruction, thus establishing as a principle that they should be kept alive even where their fate is uncertain.”", "E. The Constitution of the Italian Republic", "22. The relevant Articles of the Constitution provide as follows.", "Article 9", "“The Republic promotes the development of culture and of scientific and technical research. ...”", "Article 32", "“The Republic safeguards health as a fundamental right of the individual and as a collective interest. ...”", "Article 117", "“Legislative power is exercised by the State and the Regions in compliance with the Constitution and the constraints deriving from the Community legal order and international obligations. ...”", "F. Constitutional Court judgments nos. 348 and 349 of 24 October 2007", "23. These judgments address questions raised by the Court of Cassation and an appellate court regarding the compatibility of Legislative Decree no. 333 of 11 July 1992 on the criteria for calculating expropriation compensation with the Constitution and with Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. They take account of the Court’s Grand Chamber judgment in Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006 ‑ V.", "24. In these judgments, after reiterating the legislature’s obligation to comply with international obligations (Article 117 of the Constitution), the Constitutional Court defined the place assigned to the European Convention on Human Rights in the Italian legal system, stating that it was of intermediate rank between an ordinary law and the Constitution. The Constitutional Court also stated that the courts below had to interpret rules of domestic law in a manner compliant with the Convention and the Court’s case-law (judgment no. 349, point 6.2, see paragraph 26 below) and that, where such an interpretation was impossible or the courts below doubted the compatibility of the domestic law with the Convention, they had to raise a question of constitutionality before the Constitutional Court.", "25. The relevant passages of judgment no. 348 of 24 October 2007 read as follows.", "“4.2. ... It is necessary to define the rank and role of the provisions of the European Convention on Human Rights with a view to determining, in the light of [Article 117 of the Constitution], their impact on the Italian legal order. ...", "4.3. While on the one hand [these provisions] complement the protection of fundamental rights, and therefore supplement the values and fundamental principles protected by the Italian Constitution itself, on the other hand they maintain their formal status as simple sources of ordinary legislation. ...", "Today the Constitutional Court is called upon to clarify the normative and institutional question [referred to above], which has significant practical implications for the everyday work of legal practitioners. ...", "The ordinary courts do not have the power to set aside ordinary legislation conflicting with the European Convention on Human Rights, since the alleged incompatibility between the two raises a question of constitutionality regarding a possible violation of Article 117 § 1 of the Constitution and [thus] falls within the exclusive jurisdiction of the Constitutional Court. ...", "4.5. ... The principle enshrined in Article 117 § 1 of the Constitution will only become operative in practice if ‘the international law obligations’ binding on the legislative powers of the State and the Regions are duly specified. ...", "4.6. Compared with other international law treaties, the European Convention on Human Rights has the particular feature of having instituted the jurisdiction of a court, the European Court of Human Rights, which is assigned the role of interpreting the provisions of the Convention. Article 32 § 1 [of the Convention] provides: ‘The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.’", "Since legal provisions acquire meaning [ vivono ] through the interpretation which is given to them by legal practitioners, and in the first place the courts, the natural consequence of Article 32 § 1 of the Convention is that the international law obligations undertaken by Italy in signing and ratifying the European Convention on Human Rights include the duty to bring its own legislation into line with the provisions of the Convention in accordance with the meaning attributed to these by the [European] Court [of Human Rights], which was specifically set up to interpret and apply those provisions. It is therefore not correct to speak of a jurisdictional competence that operates in addition to that of the Italian courts, but rather of a pre-eminent interpretative role which the signatory States have recognised in the European Court, thus contributing to clarifying their international law obligations in that particular area.", "4.7. It should not be inferred from the foregoing that the provisions of the European Convention on Human Rights, as interpreted by the Strasbourg Court, have the force of constitutional law and thus escape scrutiny by this court of their constitutional legitimacy. It is precisely because the provisions in question supplement constitutional principles, while remaining of lower rank, that it is necessary that they be in conformity with the Constitution. ...", "Since, as stated above, the provisions of the European Convention on Human Rights acquire meaning through the interpretation given to them by the European Court, scrutiny of their constitutionality must give consideration to the norms that result from that interpretation, and not the provisions considered in themselves. Moreover, the judgments of the Strasbourg Court are not unconditionally binding for the purposes of reviewing the constitutionality of national laws. This review must always be a balancing exercise between the constraints arising from international law obligations, as imposed by Article 117 § 1 of the Constitution, and the constitutionally protected interests enshrined in other Articles of the Constitution. ...", "5. In the light of the methodological principles set out above, the constitutional review requested by the referring court must be carried out in such a way as to ascertain: (a) whether there is actually a conflict that cannot be resolved through interpretation between the domestic provision in question and the provisions of the European Convention on Human Rights, as interpreted by the European Court and regarded as a source supplementing the constitutional principle contained in Article 117 § 1, and (b) whether the provisions of the European Convention on Human Rights integrating that principle, and understood according to their interpretation by the [European] Court, are compatible with the Italian constitutional order. ...”", "26. The relevant parts of judgment no. 349 of 24 October 2007 read as follows.", "“6.2. ... [The principle laid down] in Article 117 § 1 of the Constitution [does not mean] that the provisions laid down in international agreements and implemented by ordinary legislation, as is the case for the provisions of the European Convention on Human Rights, must be regarded as having constitutional status. As the constitutional principle in issue imposes a duty on the legislature to comply with those provisions, any national provision incompatible with the European Convention on Human Rights and thus with the ‘international law obligations’ referred to in Article 117 § 1 would ipso facto violate this constitutional principle. Article 117 § 1 ultimately creates a reference to Convention provisions which may be relevant in a particular case, giving life [ dà vita ] and substantive content to the international law obligations evoked generally and to the [underlying constitutional] principle, such as to be generally classified as ‘interposed provisions’, and which in turn are reviewed in terms of their compatibility with the Constitution, as will be discussed below.", "It follows that it is a matter for the ordinary courts to interpret national law in conformity with the international legal provision in question ... Where this is not possible, or where the court doubts the compatibility of the national law with the ‘interposed’ Convention provision, it must raise a question of constitutionality before the Constitutional Court in the light of Article 117 § 1 of the Constitution ...", "Regarding the European Convention on Human Rights, consideration must be given to its special nature compared with other international agreements since it goes further than simply listing reciprocal rights and duties of the signatory States. The latter have created a system for the uniform protection of fundamental rights. The application and interpretation of that system is naturally in the first instance a matter for the courts of the member States, which are the ordinary courts in relation to Convention law. Definitive uniformity in application is on the other hand guaranteed by the centralised interpretation of the European Convention on Human Rights – a task assigned to the European Court of Human Rights in Strasbourg, which has the last word and the jurisdiction of which ‘shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided [therein]’ (Article 32 § 1 of the Convention). ...", "The Constitutional Court and the Strasbourg Court ultimately have different roles, even though both share the same objective of protecting as effectively as possible fundamental rights. The interpretation of the Rome Convention and of the Protocols is a matter for the Strasbourg Court, which guarantees the application of a uniform level of protection throughout the member States.", "However, where a question is raised before the Constitutional Court regarding the constitutionality of a national provision in the light of Article 117 § 1 of the Constitution in respect of an incompatibility – insurmountable through interpretation – with one or more provisions of the European Convention on Human Rights, it is incumbent on this Court to determine whether there actually is an incompatibility and [where one is found to exist] to verify whether the actual provisions of the European Convention on Human Rights, as interpreted by the Strasbourg Court, guarantee a protection of fundamental rights that is at least equivalent to the level guaranteed by the Italian Constitution.", "This does not require an assessment of the interpretation by the Strasbourg Court of a provision of the European Convention on Human Rights ... but verification as to whether that provision, as interpreted by the court expressly charged with that task by the member States, is compatible with the relevant constitutional provisions. Accordingly, a correct balance will be struck between the duty imposed by the Constitution to guarantee respect for international obligations and the need to prevent this resulting in a breach of the Constitution itself.”", "G. The case-law of the Constitutional Court", "1. Constitutional Court Order no. 369 of 24 October 2006", "27. In this Order the Constitutional Court declared inadmissible a question of constitutionality raised by the Cagliari Court in respect of section 13 of Law no. 40/2004, which bans the use of pre-implantation diagnosis.", "28. In ruling thus the Constitutional Court observed that the court referring the question for a preliminary ruling had confined itself to raising the question of the constitutionality of section 13 alone of Law no. 40/2004 whereas, according to the terms of the application for a preliminary ruling, other provisions of the same Law also had the effect of banning pre ‑ implantation diagnosis, particularly section 14(3).", "2. Constitutional Court judgment no. 151 of 1 April 2009", "29. This judgment concerns the constitutionality of the provisions of section 14(2) and section 14(3) of Law no. 40/2004, which provide for the creation of a limited number of embryos (maximum of three) and the obligation to implant them simultaneously and also prohibit the cryopreservation of surplus embryos.", "30. The Constitutional Court held that the subsections in question were unconstitutional because they jeopardised women’s health by obliging them to undergo several cycles of ovarian stimulation and also to expose themselves to the risk of multiple pregnancies on account of the prohibition on selective abortion.", "31. The judgment does not make any reference to the European Convention on Human Rights. Nor was the Convention cited by the referring courts (Lazio Regional Administrative Court and Florence Court).", "3. Constitutional Court Order no. 97 of 8 March 2010", "32. In this Order the Constitutional Court declared inadmissible the questions of constitutionality that the Milan Court had raised before it, as those questions had already been dealt with in its judgment no. 151/2009.", "4. Constitutional Court Order no. 150 of 22 May 2012", "33. In this Order, which referred to S.H. and Others v. Austria ([GC], no. 57813/00, ECHR 2011), the Constitutional Court remitted to the lower court the case brought before it concerning the ban on heterologous fertilisation laid down in Law no. 40/2004.", "5. Constitutional Court judgment no. 162 of 10 June 2014", "34. This judgment concerns the constitutionality of the blanket ban on access to heterologous fertilisation in the event of medically established sterility or infertility, as provided for in Law no. 40/2004.", "35. Three courts of ordinary jurisdiction had sought a preliminary ruling from the Constitutional Court regarding the question whether the Law in issue was compatible with Articles 2 (inviolable rights), 3 (principle of equality), 29 (rights of the family), 31 (State’s obligations to protect rights of the family) and 32 (right to health) of the Constitution. One of those courts – the Milan Court – had also asked the Constitutional Court to rule on the compatibility of the Law in issue with Articles 8 and 14 of the Convention.", "36. The Constitutional Court ruled the relevant legislative provisions unconstitutional.", "37. It held in particular that the choice of the applicants in the proceedings to become parents and found a family with children was an aspect of their freedom of self-determination regarding the sphere of their private and family life which attracted the protection of Articles 2, 3 and 31 of the Constitution. It also observed that persons who were totally sterile or infertile had a right to protection of their health (Article 32 of the Constitution).", "38. It found that, while the rights in question could be the subject of restrictions based on ethical considerations, those restrictions could not amount to a blanket ban unless it were otherwise impossible to protect other constitutionally guaranteed freedoms.", "39. With regard to the compatibility of the legislative provisions in issue with Articles 8 and 14 of the Convention, the Constitutional Court confined itself to observing that the questions in that regard had been covered in the conclusions it had reached on the constitutionality of the provisions in issue (see above).", "H. Orders of the domestic courts regarding access to pre-implantation diagnosis", "1. Cagliari Court Order of 22 September 2007", "40. In this Order the Cagliari Court observed that the claimants had first instituted urgent proceedings in the context of which a question of constitutionality had been raised. It added that this question had then been declared inadmissible by Order no. 369 of the Constitutional Court adopted on 24 October 2006 (see paragraphs 27-28 above), which had therefore not provided any guidance regarding the interpretation to be given to domestic law in the light of the Constitution.", "41. With regard to the civil proceedings brought before it, the court pointed out that there was no explicit ban under domestic law on access to pre-implantation diagnosis, and that interpreting the Law in such a way as to construe that a ban existed would have been contrary to the claimants’ right to be duly informed of the medical treatment that they sought to undergo.", "42. Furthermore, it noted that a ban on pre-implantation diagnosis had been introduced subsequently by secondary legislation, namely, Ministry of Health Decree no. 15165 of 21 July 2004 (particularly the part providing that “tests to determine the state of health of embryos created in vitro, within the meaning of section 14(5) [of Law no. 40 of 2004], cannot be carried out for purposes other than observation of those embryos (“ dovrà essere di tipo osservazionale ”). It held that this was contrary to the principle of legality and the Council of Europe’s Oviedo Convention.", "43. It observed, lastly, that interpreting Law no. 40/2004 so as to allow access to pre-implantation diagnosis was consonant with the right to health accorded to the mother. Consequently, it granted the claimants access to pre-implantation diagnosis.", "2. Florence Court Order of 17 December 2007", "44. In this Order the Florence Court referred to the Order of the Cagliari Court cited above and stated that it agreed with its interpretation of the domestic law. Accordingly, it granted the claimants access to pre-implantation diagnosis.", "3. Bologna Court Order of 29 June 2009", "45. In this Order the Bologna Court granted the claimants access to pre-implantation diagnosis, stating that this was consonant with the protection of women’s health recognised by the Constitutional Court’s interpretation of domestic law in its judgment no. 151 of 1 April 2009 (see paragraphs 29-31 above).", "4. Salerno Court Order of 9 January 2010", "46. In this Order, adopted following urgent proceedings, the Salerno Court referred to the new developments introduced by Ministry of Health Decree no. 31639 of 11 April 2008, namely the fact that tests to determine the state of health of embryos created in vitro were no longer limited to observation of those embryos and that access to assisted reproduction was authorised for couples where the man was a carrier of sexually transmitted viral diseases.", "47. It concluded that pre-implantation diagnosis had to be regarded as just one of the antenatal treatment techniques designed to determine the state of health of the embryo.", "48. Consequently, it authorised pre-implantation diagnosis of the claimants’ embryo in vitro.", "5. Cagliari Court Order of 9 November 2012", "49. In this Order the Cagliari Court referred to the reasoning in the above-cited Orders. It indicated, further, that judgments nos. 348 and 349 delivered by the Constitutional Court on 24 October 2007 showed that interpreting the law with a view to guaranteeing access to pre-implantation diagnosis was compatible with the European Convention on Human Rights, especially having regard to the judgment delivered by the Strasbourg Court in Costa and Pavan v. Italy (no. 54270/10, 28 August 2012).", "6. Rome Court Order of 15 January 2014", "50. In this Order the court raised the question of the constitutionality of sections 1(1) and (2) and 4(1) of Law no. 40/2004, which prohibit couples who are neither sterile nor infertile from using assisted reproduction techniques with a view to obtaining a pre-implantation diagnosis. The court also considered the matter from the standpoint of Articles 8 and 14 of the Convention.", "51. While having regard to the judgment in Costa and Pavan (cited above), it found that the Law should not be interpreted extensively, since it did expressly provide that access to assisted reproduction techniques was reserved to sterile or infertile couples.", "I. Question of the constitutionality of section 13 of Law no. 40/2004 raised by the Florence Court", "52. In a decision of 7 December 2012, the Florence Court raised the question of the constitutionality of the ban under section 13 of Law no. 40/2004 on donating surplus embryos to scientific research with regard to Articles 9 and 32 of the Constitution, which guarantee freedom of scientific research and the right to health respectively.", "53. On 19 March 2014 the President of the Constitutional Court adjourned its examination of the case pending the decision of the Grand Chamber in the present application, Parrillo v. Italy (no. 46470/11).", "IV. RELEVANT EUROPEAN UNION LAW AND MATERIALS", "A. European Group on Ethics in Science and New Technologies (EGE) to the European Commission", "56. Set up by the European Commission in 1991, the EGE is an independent body composed of experts whose task is to advise the European Commission on ethical questions relating to science and new technologies. The EGE has provided two opinions on the use of embryos in vitro for research purposes.", "1. Opinion no. 12: Ethical aspects of research involving the use of human embryo in the context of the 5th Framework Programme, 23 November 1998", "57. This opinion was published at the request of the European Commission following the proposal of the European Parliament to exclude research projects that resulted in the destruction of human embryos from Community funding in the context of the 5th Framework Programme. The relevant passages read as follows.", "“2.6 ... [I]n the scope of European research programmes, the question of research on the human embryo has to be approached, not only with regard to the respect for fundamental ethical principles, common to all Member States, but equally taking into consideration diverse philosophical and ethical conceptions, expressed through the practices and the national regulations in force in this field.", "...", "2.8 In the light of the aforementioned principles and specifications, the Group considers that according to the ethical dimension of the Community’s Fifth Framework Programme Community funding should not a priori exclude human embryo research which is the object of different ethical choices in different countries ...”", "2. Opinion no. 15: Ethical aspects of human stem cell research and use, 14 November 2000", "58. The relevant parts of this opinion read as follows.", "“2.3. Pluralism and European ethics", "... In the context of European pluralism, it is up to each Member State to forbid or authorise embryo research. In the latter case, respect for human dignity requires regulation of embryo research and the provision of guarantees against risks of arbitrary experimentation and instrumentalisation of human embryos.", "2.5. Ethical Acceptability of the field of the research concerned", "The Group notes that in some countries embryo research is forbidden. But when this research is allowed, with the purpose of improving treatment for infertility, it is hard to see any specific argument which would prohibit extending the scope of such research in order to develop new treatments to cure severe diseases or injuries. As in the case of research on infertility, stem cell research aims to alleviate severe human suffering. In any case, the embryos that have been used for research are required to be destroyed. Consequently, there is no argument for excluding funding of this kind of research from the Framework Programme of research of the European Union if it complies with ethical and legal requirements as defined in this programme.”", "B. Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products and amending Directive 2001/83/EC and Regulation (EC) No 726/2004", "“...", "(7) The regulation of advanced therapy medicinal products at Community level should not interfere with decisions made by Member States on whether to allow the use of any specific type of human cells, such as embryonic stem cells, or animal cells. It should also not affect the application of national legislation prohibiting or restricting the sale, supply or use of medicinal products containing, consisting of or derived from these cells.”", "C. Judgment of the Court of Justice of the European Union (CJEU) of 18 October 2011 (C-34/10 Oliver Brüstle v. Greenpeace eV )", "59. In this judgment, delivered following a referral for a preliminary ruling from the German Federal Court of Justice ( Bundesgerichtshof ), the CJEU ruled on the interpretation to be given to Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions.", "60. In issue was the part of the Directive which, tempering the principle that the use of human embryos for industrial or commercial purposes could not be patented, specified that this exclusion from patentability did not affect “inventions for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it”.", "61. The CJEU observed that the purpose of the Directive in question was not to regulate the use of human embryos in the context of scientific research. It was limited to the patentability of biotechnological inventions. The CJEU then considered that inventions involving the use of human embryos continued to be excluded from patentability even where they purported to serve scientific research (those purposes being indistinguishable, where patents were concerned, from other industrial and commercial aims). The CJEU indicated at the same time that this exclusion did not affect inventions for therapeutic or diagnostic purposes which were applied to the human embryo and were useful to it.", "D. European Union funding of research and technological development", "62. Since 1984 the European Union has provided funding for scientific research through framework programmes covering periods spanning several years.", "63. The relevant parts of Decision No 1982/2006/EC of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) read as follows.", "Article 6 – Ethical principles", "“1. All the research activities carried out under the Seventh Framework Programme shall be carried out in compliance with fundamental ethical principles.", "2. The following fields of research shall not be financed under this Framework Programme:", "– research activity aiming at human cloning for reproductive purposes,", "– research activity intended to modify the genetic heritage of human beings which could make such changes heritable,", "– research activities intended to create human embryos solely for the purpose of research or for the purpose of stem cell procurement, including by means of somatic cell nuclear transfer.", "3. Research on human stem cells, both adult and embryonic, may be financed, depending both on the contents of the scientific proposal and the legal framework of the Member State(s) involved.", "...”", "64. The relevant parts of Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC read as follows.", "Article 19 – Ethical principles", "“1. All the research and innovation activities carried out under Horizon 2020 shall comply with ethical principles and relevant national, Union and international legislation, including the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights and its Supplementary Protocols.", "...", "3. The following fields of research shall not be financed:", "(a) research activity aiming at human cloning for reproductive purposes;", "(b) research activity intended to modify the genetic heritage of human beings which could make such changes heritable;", "(c) research activities intended to create human embryos solely for the purpose of research or for the purpose of stem cell procurement, including by means of somatic cell nuclear transfer.", "4. Research on human stem cells, both adult and embryonic, may be financed, depending both on the contents of the scientific proposal and the legal framework of the Member States involved. No funding shall be granted for research activities that are prohibited in all the Member States. No activity shall be funded in a Member State where such activity is forbidden.", "...”", "E. Communication from the European Commission on the European Citizens’ Initiative “One of Us” COM(2014) 355 final (Brussels, 28 May 2014)", "65. On 10 April 2014 the citizens’ initiative “One of Us” had proposed legislative amendments to exclude from European funding scientific projects involving the destruction of human embryos.", "66. In its Communication of 28 May 2014, the European Commission stated that it could not uphold the request on the ground that its proposal to fund the projects in question took account of ethical considerations, potential health benefits and support at European Union level for stem-cell research.", "V. RELEVANT INTERNATIONAL LAW MATERIALS", "A. Report of the Unesco International Bioethics Committee (IBC) on the ethical aspects of human embryonic stem cell research (6 April 2001)", "67. The relevant parts of the conclusions of this report read as follows.", "“A. The IBC recognises that human embryonic stem cell research is a subject on which it is desirable for a debate to occur at national level to identify which position on this issue is to be adopted, including abstaining from this research. It urges that debates be conducted at appropriate national regulatory levels, enabling expression of a range of views, and whenever possible allowing a consensus to be reached on the limits of the permissible in this important new therapeutic research field. There should be an on-going process of education and information in this area. States should take appropriate measures to initiate an on-going dialogue within society on the ethical issues raised by such research, involving all actors concerned.", "B. Whatever form of research involving embryos is allowed, steps should be taken to ensure that such research be carried out within the framework of a State-sponsored regulatory system that would give due weight to ethical considerations, and set up appropriate guidelines. When authorisation of donations of supernumerary pre-implantation embryos from IVF treatments for therapeutic embryonic stem cell research is under consideration, particular attention should be given to the dignity and rights of both parental donors of embryos. Thus, it is essential that the donation be made only after the donors should have been given full information as to the implications of the research and have given their prior, free and informed consent. The purposes for which such research is carried out, and the way of its performance, should be subject to assessment by the appropriate ethics committees, which should be independent of the researchers involved. This assessment should include ex post facto ethical evaluation of such research.”", "B. Judgment of the Inter-American Court of Human Rights in Artavia Murillo et al. ( in vitro fertilization) v. Costa Rica (preliminary objections, merits, reparations and costs), judgment of 28 November 2012, Series C No. 257", "68. In this case the Inter-American Court gave a ruling on the ban on carrying out in vitro fertilisation in Costa Rica. It held, inter alia, that an embryo could not be regarded as a “person” within the meaning of Article 4 § 1 of the American Convention on Human Rights (protecting the right to life), “conception” occurring only from the moment the embryo was implanted in the uterus.", "VI. COMPARATIVE LAW MATERIALS", "69. According to the information available to the Court on the legislation of forty member States [1] regarding the use of human embryos for scientific research, three countries (Belgium, Sweden and the United Kingdom) allow scientific research on human embryos and the creation of embryos for that purpose.", "70. The creation of embryos for scientific research is banned in fourteen countries [2]. However, research using surplus embryos is generally allowed in those countries, subject to certain conditions.", "71. Like Italy, three member States (Slovakia, Germany and Austria) prohibit scientific research on embryos in principle, and permit it in very restricted cases, such as for the protection of the health of the embryo or where the research is carried out on cell lines imported from abroad.", "72. In Slovakia any research on embryos is strictly forbidden, other than research for medical purposes for the benefit of the health of the persons directly participating in the research in question.", "73. In Germany the importation and use for research purposes of embryonic cells is in principle banned by law and authorised only exceptionally and subject to strict conditions.", "74. In Austria the law provides that “viable cells” cannot be used for purposes other than in vitro fertilisation. However, the concept of “viable cells” is not defined in the law. According to practice and legal commentary, the statutory ban concerns only “totipotent” embryonic cells [3].", "75. In four countries (Andorra, Latvia, Croatia and Malta) the law expressly prohibits any research on embryonic stem cells.", "76. In sixteen countries (Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Ireland, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, Poland, Romania, Russia, San Marino, Turkey and Ukraine) the matter is not regulated. Some of these States take a rather restrictive approach in practice (for example, Turkey and Ukraine), while others have a rather non-prohibitive practice (for example, Russia).", "THE LAW", "77. The Court notes at the outset that the Government raised a number of objections to the admissibility of the present application. They submitted that the applicant had not exhausted the domestic remedies available to her in domestic law; that she had failed to lodge her application within the six-month time-limit provided for in Article 35 § 1 of the Convention; and that she did not have victim status. The Court will examine these objections below before analysing the other aspects of the application.", "I. NON-EXHAUSTION OF DOMESTIC REMEDIES", "A. The Government’s submissions", "78. The Government submitted that the applicant could complain of the prohibition on donating her embryos to scientific research before an ordinary civil court on the ground that the ban was contrary to the Italian Constitution and the Convention. In support of that submission, they cited a number of domestic decisions in which the national courts had interpreted Law no. 40/2004 in the light of the Constitution and the European Convention on Human Rights, in particular regarding access to pre-implantation diagnosis (Orders of the Cagliari Court of 22 September 2007 and 9 November 2012 and those adopted by the Florence, Bologna and Salerno Courts on 17 December 2007, 29 June 2009 and 9 January 2010 respectively, see paragraphs 40-49 above).", "79. According to the Government, the court in question would then have had to interpret the Law prohibiting the donation of embryos in the light of the Convention, as required by Constitutional Court judgments nos. 348 and 349 of 24 October 2007.", "80. If the court had considered that there was an insurmountable conflict between its interpretation of the Law and the rights asserted by the claimant it would have had to submit a question of constitutionality to the Constitutional Court. That court would then have examined the issue of compatibility with human rights on the merits and would have been able to annul the domestic provisions with retroactive and erga omnes effect.", "81. Moreover, several cases concerning the constitutionality of Law no. 40/2004 had already been brought before the Constitutional Court. A number of decisions had been delivered in that regard, particularly Constitutional Court Orders nos. 369, 97 and 150 (adopted on 24 October 2006, 8 March 2010 and 22 May 2012 respectively), judgment no. 151 delivered on 1 April 2009, a decision of the Florence Court of 7 December 2012 and an Order of the Rome Court adopted on 15 January 2014 (see paragraphs 27-33 and 50-53 above).", "82. In the Government’s submission, the applicant had also breached the principle of subsidiarity laid down in Protocol No. 15 of 24 June 2013 because she had failed to use domestic remedies before lodging her complaints with the Court.", "83. Lastly, a question of constitutionality concerning an identical case to the present one had been raised by the Florence Court before the Constitutional Court (see paragraphs 52-53 above). If the Constitutional Court’s decision were to go against the claimant, the latter would still be able to lodge an application with the Court.", "B. The applicant’s submissions", "84. The applicant submitted that any action in the ordinary courts would have been bound to fail because domestic law imposed a blanket ban on donating embryos to scientific research.", "85. She also submitted that a constitutional remedy could not be regarded as a remedy that had to be used for the purposes of Article 35 § 1 of the Convention, since the Italian legal system did not provide for direct application to the Constitutional Court.", "86. Lastly, she indicated that on 19 March 2014 the President of the Constitutional Court had adjourned its examination of the question raised by the Florence Court to which the Government referred pending the Grand Chamber’s decision in the present case.", "C. The Court’s assessment", "87. The Court reiterates first of all that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010; Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002 ‑ VIII; Leandro Da Silva v. Luxembourg, no. 30273/07, §§ 40 and 42, 11 February 2010; and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).", "88. In the instant case, relying on the system of constitutional review instituted by Constitutional Court judgments nos. 348 and 349 of 24 October 2007, the Government submitted that the remedies available to the applicant in domestic law had not been exhausted. They cited examples of decisions on the merits and decisions of the Constitutional Court concerning Law no. 40/2004.", "89. The Court observes at the outset that, in the above-mentioned judgments nos. 348 and 349, the Constitutional Court defined the place assigned to the Convention in the Italian legal system, considering that it was of intermediate rank between an ordinary law and the Constitution. It also found that it was incumbent on the judges of the ordinary courts to interpret domestic law in a manner compliant with the Convention and the Court’s case-law. It stated that, where such an interpretation was impossible or the ordinary court had doubts as to the compatibility of domestic law with the Convention, it was bound to raise a question of constitutionality before it.", "90. The Court also reiterates that in the absence of a specifically introduced remedy, the development and availability of a remedy said to exist, and its scope and application, must be justified by the Government with reference to the domestic courts’ case-law (see, mutatis mutandis, Melnītis v. Latvia, no. 30779/05, § 50, 28 February 2012; McFarlane, cited above, §§ 115-27; Costa and Pavan v. Italy, no. 54270/10, § 37, 28 August 2012; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, §§ 52-58, 7 November 2013).", "91. In the instant case the Court observes that the Government referred to a number of cases concerning Law no. 40/2004 but did not provide any examples of domestic decisions in which the question of donating surplus embryos to research was determined. Moreover, the Court cannot properly criticise the applicant for failing to lodge an application for a measure prohibited by law.", "92. With regard to the Government’s submission that, since the adoption of judgments nos. 348 and 349, the ordinary courts are obliged to interpret the Law giving rise to the prohibition in the light of the Convention and Strasbourg case-law whereas they were not formerly bound by such an obligation, a number of considerations lead the Court to conclude that this statement is not actually being followed, by established judicial practice, in, among others, the sphere of assisted reproduction.", "93. The Court notes first of all that in a similar case to the present one, which concerned the ban on donating surplus embryos to scientific research, the Florence Court decided, on 7 December 2012, to raise before the Constitutional Court the question of the constitutionality of section 13 of Law no. 40/2004 with regard to Articles 9 and 32 of the Constitution, which guarantee the freedom of scientific research and the right to health respectively (see paragraph 22 above). The Court observes, however, that the lower court did not raise any question regarding the compatibility of the ban in question with the rights guaranteed by the Convention.", "94. It notes, secondly, that, barring a few exceptions, the decisions of the lower courts and of the Constitutional Court regarding Law no. 40/2004 cited by the Government (see paragraphs 78 and 81 above) do not refer to the Convention. This is the case regarding Orders nos. 369/2006 and 97/2010 of the Constitutional Court and its judgment no. 151/2009, the Orders of the Cagliari, Florence, Bologna and Salerno Courts adopted on 22 September 2007, 17 December 2007, 29 June 2009 and 9 January 2010 respectively, and of the decision of the Florence Court of 7 December 2012.", "95. Admittedly, in Order no. 150 of 22 May 2012, in which it remitted to the lower court a case concerning the ban on heterologous fertilisation, the Constitutional Court did refer, inter alia, to Articles 8 and 14 of the Convention. The Court cannot fail to observe, however, that in its judgment no. 162 of 10 June 2014 in the same case the Constitutional Court examined the prohibition in question only in the light of the Articles of the Constitution that were in issue (namely, Articles 2, 31 and 32). With regard to Articles 8 and 14 of the Convention, invoked by only one of the three lower courts (see paragraph 35 above), it merely observed that the questions raised under those provisions were covered by the conclusions it had reached regarding the constitutionality issue (see paragraph 39 above).", "96. Accordingly, the Orders of the Cagliari Court (of 9 November 2012) and the Rome Court (of 15 January 2014) were the only two exceptions to the failure to take account of the Convention and its case-law. Having regard to the Court’s conclusions in Costa and Pavan (cited above), the Cagliari Court authorised access by the claimants to pre-implantation diagnosis and the Rome Court raised a question of constitutionality on that point before the Constitutional Court. The fact remains that these are just two isolated cases out of the eleven referred to by the Government, which concern a different subject from the one in issue here and one in respect of which the Court has already ruled.", "97. Furthermore, as the compatibility of section 13 of Law no. 40/2004 with the rights guaranteed by the Convention is a new issue, the Court is not convinced that the possibility open to the applicant to bring her complaints before an ordinary court constitutes an effective remedy.", "98. Judgments nos. 348 and 349 themselves clarify the difference between the respective roles of the Strasbourg Court and the Constitutional Court, finding that the former has the task of interpreting the Convention while the latter must determine whether there is a conflict between a particular domestic provision and the rights guaranteed by the Convention, inter alia, in the light of the interpretation provided by the European Court of Human Rights (see paragraph 26 above).", "99. Moreover, the decision taken on 19 March 2014 by the President of the Constitutional Court to adjourn its examination of the question raised on 7 December 2012 by the Florence Court pending a ruling by the Court in the instant case (see paragraph 53 above) is consonant with this approach.", "100. In this context the Court observes that, in a recent judgment (no. 49, deposited on 26 March 2015) in which it analysed, inter alia, the place of the Convention and the Court’s case-law in the domestic legal order, the Constitutional Court indicated that the ordinary courts were only bound to comply with the Court’s case-law where it was “well established” or expressed in a “pilot judgment”.", "101. In any event the Court has observed on many occasions that, in the Italian legal system, litigants are not entitled to apply directly to the Constitutional Court. Only a court which is hearing the merits of a case has the possibility of making a reference to the Constitutional Court, at the request of a party or of its own motion. Accordingly, such an application cannot be a remedy whose exhaustion is required under the Convention (see, among other authorities, Brozicek v. Italy, 19 December 1989, § 34, Series A no. 167; Immobiliare Saffi v. Italy [GC], no. 22774/93, § 42, ECHR 1999 ‑ V; C.G.I.L. and Cofferati v. Italy, no. 46967/07, § 48, 24 February 2009; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 75, 17 September 2009; and M.C. and Others v. Italy, no. 5376/11, § 47, 3 September 2013). However, the Commission and the Court have held, with regard to other member States, that direct application to the Constitutional Court was a domestic remedy that had to be used (see, for example, W. v. Germany, no. 10785/84, Commission decision of 18 July 1986, Decisions and Reports (DR) 48, p. 102, at p. 105; Union Alimentaria Sanders S.A. v. Spain, no. 11681/85, Commission decision of 11 December 1987, DR 54, p. 101, at 107; S.B. and Others v. Belgium (dec.), no. 63403/00, 6 April 2004; and Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003 ‑ II).", "102. Having regard to the foregoing, the Court cannot consider that the system requiring domestic provisions to be interpreted in the light of the Convention established by judgments nos. 348 and 349 constitutes a turning point capable of refuting that conclusion (see, by converse implication, the recent decisions of the Court acknowledging the effectiveness of applications to the Turkish Constitutional Court following the creation of a system of direct application to that court: Hasan Uzun v. Turkey (dec.), no. 10755/13, §§ 25-27, 30 April 2013, and Koçintar v. Turkey (dec.), no. 77429/12, 1 July 2014).", "103. The principles established in judgments nos. 348 and 349 of 24 October 2007 are to be welcomed, particularly regarding the place assigned to the Convention in the Italian legal system and the encouragement given to the national judicial authorities to interpret domestic standards and the Constitution in the light of the Convention and the Court’s case-law. The Court also notes that, in areas other than assisted reproduction, there have been many decisions in which the Constitutional Court has ruled a domestic provision unconstitutional on the basis, inter alia, of its incompatibility with the rights guaranteed under the Convention and the Court’s case-law (see, for example, judgment no. 39 of 5 March 2008 regarding legal incapacities following bankruptcy, judgment no. 93 of 17 March 2010 on the public nature of hearings in proceedings for enforcement of interim measures, and judgment no. 210 of 3 July 2013 concerning the retrospective application of criminal law).", "104. However, it should first be noted that the Italian system provides only for indirect application by individuals to the Constitutional Court. Furthermore, the Government have not shown, backed up by established case-law and practice, that, where the donation of embryos to research is concerned, an action by the applicant before the ordinary courts combined with the duty on those courts to raise a question of constitutionality before the Constitutional Court in the light of the Convention amounted to an effective remedy in the present case that the applicant should have used.", "105. Having regard to the foregoing and to the fact that the Constitutional Court decided to suspend its examination of a similar case pending the Court’s decision in the instant case, the objection raised by the Government must be rejected.", "II. COMPLIANCE WITH THE SIX-MONTH TIME-LIMIT", "A. The Government’s submissions", "106. At the hearing the Government objected that the application had been lodged out of time, submitting that the Law banning embryo donations for scientific research had come into force on 10 March 2004 and that the applicant had not sought release of her embryos for the purpose of donating them until 14 December 2011, in a letter sent on that date to the centre for reproductive medicine where the embryos were cryopreserved.", "B. The applicant’s submissions", "107. The applicant replied to this objection during the hearing, submitting that she had indeed made a written request to the centre for reproductive medicine for release of her embryos on 14 December 2011, but had earlier made other identical requests verbally.", "108. At all events the applicant maintained that any request to the centre for reproductive medicine was bound to fail, since the applicable Law categorically prohibited the donation of embryos to scientific research.", "C. The Court’s assessment", "109. The Court has already acknowledged that where an interference with the right relied on by an applicant emanates directly from legislation, the very maintenance in force of the impugned legislation may constitute a continuing interference with the right in question (see, for example, Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Norris v. Ireland, 26 October 1988, § 38, Series A no. 142, in which the applicants, who were homosexuals, complained that laws making homosexual practices criminal offences infringed their right to respect for their private life).", "110. The Court has recently proceeded on that basis in Vallianatos and Others (cited above, § 54), in which the applicants complained of a continuing violation of Articles 14 and 8 of the Convention on account of their inability, as same-sex couples, to enter into a “civil union”, whereas different-sex couples were legally able to do so. Further, in S.A.S. v. France ([GC], no. 43835/11, § 110, ECHR 2014), which concerned the statutory ban on wearing clothing designed to conceal one’s face in public places, the Court observed that the applicant’s situation was similar to that of the applicants in Dudgeon and Norris (both cited above), in which it had found a continuing interference with the exercise of the rights protected by Article 8 of the Convention.", "111. The Court acknowledges that in the above-cited cases the effect of the legislative measures complained of on the daily lives of the applicants was more substantial and more direct than in the present case. Nevertheless, the statutory ban on donating embryos to scientific research in issue here does undeniably have an impact on the applicant’s private life. That impact, which results from the biological link between the applicant and her embryos and the plan to start a family that was at the origin of their creation, is a direct result of the entry into force of Law no. 40/2004 and constitutes a continuing situation in that it has continuously affected the applicant since then (see the final report of the Study Commission on embryos of 8 January 2010, which refers to potentially indefinite cryopreservation of frozen embryos, paragraph 21 above).", "112. In this type of case, according to the Court’s case-law, the six-month period does not start to run until the situation complained of has come to an end (see, among other authorities, Çınar v. Turkey, no. 17864/91, Commission decision of 5 September 1994, DR 79-B). Consequently, the Court does not accept the Government’s argument that the time period runs from the date on which the Law in issue came into force.", "113. Moreover, the Government’s submission is tantamount to considering that the applicant wanted to donate her embryos from the date on which the Law in issue came into force, which is not a matter that is open to speculation by the Court.", "114. The objection on the ground of delay in lodging the application, raised by the Government under Article 35 § 1 of the Convention, cannot therefore be upheld.", "III. THE APPLICANT’S VICTIM STATUS", "A. The Government’s submissions", "115. The Government also objected on the ground that the applicant did not have victim status, submitting that, during the period from 12 November 2003 – the date of her partner’s death – to 10 March 2004, when Law no. 40/2004 came into force, the applicant could have donated her embryos to research since there were no regulations governing the matter at that time and a donation of that sort was therefore not prohibited.", "B. The applicant’s submissions", "116. The applicant submitted at the hearing that a very short period of time had elapsed between the date of her partner’s death and the date when the Law came into force – approximately four months – and that she had not been able to make a clear decision during that time as to what she wanted to do with the embryos obtained from the IVF treatment she had undergone.", "C. The Court’s assessment", "117. The Court reiterates that where an interference with an applicant’s private life emanates directly from legislation, the maintenance in force of the impugned legislation constitutes a continuing interference with the exercise of the right in question. In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects her private life (see Dudgeon, § 41, and Norris, § 34, both cited above).", "118. In the instant case the applicant has been unable to donate her embryos to research since Law no. 40/2004 came into force (see also paragraph 113 above). As the situation has remained unchanged since then, the fact that the applicant wanted to donate her embryos to research at the time of lodging her application is sufficient for the Court to find that she has victim status. Furthermore, with regard to the Government’s argument that the applicant could have donated her embryos to scientific research during the period between her partner’s death and the entry into force of the Law, the Court takes note of the information submitted by the applicant according to which, during the short period referred to above, she had not been able to make a clear decision concerning the fate of the embryos.", "119. The Government’s objection on the ground of the applicant’s lack of victim status must therefore be dismissed.", "IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "120. Relying on Article 8 of the Convention, the applicant alleged that the ban under section 13 of Law no. 40/2004 on donating embryos to scientific research resulted in a violation of her right to respect for her private life. The relevant parts of Article 8 provide:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties’ submissions", "1. The Government’s submissions", "121. The Government submitted at the outset that the question whether human embryos could be donated to scientific research did not fall within the concept of “right to respect for private life”.", "122. At the hearing the Government contended that Article 8 of the Convention could have applied only “indirectly” in the present case, that is, only if the applicant had wanted to start a family by having her embryos implanted and had been prevented from doing so by the application of Law no. 40/2004.", "123. In any event they maintained that the alleged interference with the applicant’s private life was in accordance with the law and pursued the legitimate aim of protecting the embryo’s potential for life.", "124. With regard to the proportionality of the impugned measure, the Government confined themselves in their written observations to referring to the arguments they had submitted under Article 1 of Protocol No. 1. However, at the hearing the Government submitted that the Italian legislation was not inconsistent, arguing that the applicant had wrongly affirmed that cryopreserved embryos could not develop into human lives. In that connection they submitted that, if properly carried out, cryopreservation was not limited in duration and that there were currently no scientific means by which the viability of a cryopreserved embryo could be determined without thawing it.", "125. The Government also submitted that Italian law, which allowed abortion, was not incompatible with the ban on donating embryos to research, since in the event of an abortion the protection of the life of the foetus clearly had to be weighed against the situation and interests of the mother.", "126. During the hearing they also observed that embryos were definitely protected under European law. In their submission, the Council of Europe Convention on Human Rights and Biomedicine (Oviedo Convention) of 4 April 1997 certainly did not require States to authorise destructive scientific research on embryos, since, in their submission, the choice as regards carrying out such research fell within the wide margin of appreciation of the States in this sphere.", "127. They went on to observe that the preparatory works to Law no. 40/2004 showed that it was the end-product of a substantial amount of work that had taken account of a range of scientific and ethical opinions and questions on the subject. Moreover, the Law in question had been the subject of several referendums, regarding, inter alia, maintaining section 13, which had been declared invalid because the required threshold of votes had not been reached.", "128. Furthermore, while acknowledging that Italian scientific research used embryonic cell lines imported from abroad and resulting from the destruction of the original embryos, they pointed out that the production of these cell lines was not carried out at the request of Italian laboratories and observed that there were approximately 300 embryonic cell lines in the world that were made available to the entire scientific community. In that connection they pointed out that the deliberate destruction of a human embryo could not be compared with the use of cell lines from human embryos that had already been destroyed.", "129. With regard to European Union funding for scientific research, the Government submitted that the Seventh Framework Programme for research, technological development and demonstration activities and the Horizon 2020 Framework Programme for Research and Innovation (see paragraphs 63-64 above) did not provide for funding of projects involving the destruction of embryos, whether these had been created in Europe or imported from third countries.", "130. They observed, lastly, that in its opinion of 18 November 2005 on adoption for birth (see paragraphs 19-20 above), the National Bioethics Committee had already tackled the subject of the fate of surplus embryos with a view to finding solutions that would respect their lives.", "131. In their view, this solution could now become a reality having regard to judgment no. 162 of 10 June 2014 in which the Constitutional Court had declared the ban on heterologous fertilisation unconstitutional, thus allowing the use of surplus embryos from an in vitro fertilisation for non-destructive purposes, in accordance with the objective pursued by Italian legislation in this area.", "2. The applicant’s submissions", "132. The applicant affirmed at the outset that according to the Court’s case-law “private life” was a broad concept (she referred to Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I).", "133. She went on to submit that she had lost her partner in tragic circumstances, which was why she had not been able to start a family as she had wished. At the hearing she explained that only four months had elapsed between her partner’s death and the Law’s entry into force, so she had not had the necessary time to reflect on her plans to start a family, and that in any event the implantation of embryos post mortem was illegal.", "134. Accordingly, she considered that the State also required her to witness the destruction of her embryos rather than allowing her to donate them to research, which would pursue a noble cause and be a source of comfort to her after the painful events that had occurred in her life. In those circumstances she submitted that her right to her private life was in issue.", "135. She also maintained that the ban on donating embryos was completely illogical, since the only alternative offered by the system was the death of the embryos. At the hearing she pointed to the inconsistencies in the Italian legal system, submitting that the embryo’s right to life relied on by the Government was irreconcilable with the possibility available to women to abort up until the third month of pregnancy and with the use by Italian laboratories of embryonic cell lines obtained from the destruction of embryos created abroad.", "136. Furthermore, she considered that the possibility of donating embryos not destined for implantation also fulfilled a public interest since research on induced pluripotent stem cells had not yet replaced research on stem cells, which was why the latter continued to feature among the most promising research methods, particularly regarding the treatment of certain incurable diseases.", "137. She also submitted that the State did not have a wide margin of appreciation in the present case, particularly given the existing European consensus regarding the possibility of donating to scientific research embryos that were not destined to be implanted.", "138. At the hearing she referred to the judgment of 18 October 2011 of the Court of Justice of the European Union in Oliver Brüstle v. Greenpeace eV (see paragraphs 59-61 above). Noting that this judgment was limited to prohibiting the patentability of inventions involving the destruction of human embryos, she inferred that the inventions themselves – and the prior research – were not banned at European level.", "139. Lastly, she submitted that the Communication from the European Commission on the European Citizens’ Initiative “One of Us” of 28 May 2014 (see paragraphs 65-66 above) confirmed that the funding of research on embryonic human stem cells was permitted.", "3. Observations of the third-party interveners", "(a) The European Centre for Law and Justice (ECLJ)", "140. The ECLJ submitted that in the present case the interests of science – to which the applicant attached importance – did not take precedence over the respect due to the embryo, in line with the principle of the “primacy of the human being” enshrined in Article 2 of the Oviedo Convention.", "141. It also observed that in all the cases raising questions related to assisted reproduction that had been brought before the Court the interference with the applicants’ private and family life stemmed from a law that prevented the couple or the mother from having a child. The situation was different here in that the applicant had decided not to have the embryos implanted even though at the time she had undergone the IVF treatment there had been no law prohibiting gestation post mortem.", "142. Lastly, referring to S.H. and Others v. Austria and Evans, both cited above, it observed that the member States were afforded a wide margin of appreciation in this area.", "(b) The associations Movimento per la vita, Scienza e vita and Forum delle associazioni familiari, represented by Mr Casini", "143. These associations submitted that destructive experiments on human embryos, which were “subjects”, were banned by law and that the Oviedo Convention did not impose any obligation to authorise such experiments.", "144. They also observed that the member States enjoyed a wide margin of appreciation in this area.", "(c) The associations Luca Coscioni, Amica Cicogna Onlus, L’Altra Cicogna Onlus and Cerco Un Bimbo and forty-six members of the Italian Parliament, represented by Ms Gallo", "145. These third-party interveners submitted that the concept of “private life” was an evolving one, that it was not susceptible to exhaustive definition, and that the applicant claimed, inter alia, the right to respect for her choice to donate her own biological matter to research, namely, embryos that were no longer destined for a parental project and were in any event bound for destruction.", "146. They added that the interference in question was not justified by the purpose relied on, since Italian law did not afford absolute protection to the embryo’s life.", "(d) The associations VOX – Osservatorio italiano sui Diritti, SIFES (Society of Fertility, Sterility and Reproductive Medicine) and Cittadinanzattiva, represented by Ms D’Amico, Ms Costantini, Mr Clara, Ms Ragni and Ms Liberali", "147. These associations pointed out that section 13 of Law no. 40/2004 curtailed the freedom of individuals to decide the fate of their own embryos, which had to be cryopreserved indefinitely, thus incurring substantial costs.", "148. According to them, cryopreservation was not in any way useful to embryos destined to die, nor to couples, who were not generally keen to use embryos that had been cryopreserved for a long time for implantation, as the “quality” of these embryos diminished over time. Cryopreservation was just as useless for the medical centres where the embryos were stored.", "B. The Court’s assessment", "1. Applicability to the present case of Article 8 of the Convention and admissibility of the complaint raised by the applicant", "149. In the present case the Court is called upon for the first time to rule on the question whether the “right to respect for private life” guaranteed by Article 8 of the Convention can encompass the right invoked before it by the applicant to make use of embryos obtained from in vitro fertilisation for the purposes of donating them to scientific research.", "150. The Government submitted that the provision in question could have applied only indirectly in the instant case and exclusively under its “family life” aspect, that is, only if the applicant had wanted to start a family by means of cryopreservation and the subsequent implantation of her embryos and had been prevented from doing so by the application of Law no. 40/2004.", "151. However, the applicant indicated in the application form (see paragraph 14 above) and repeated at the hearing (see paragraph 116 above) that, since the death of her partner, she was no longer intending to start a family. Moreover, she did not at any time allege before the Court that there had been a violation of her right to respect for her family life under Article 8 of the Convention.", "152. In reality the subject matter of the case brought before the Court concerns the restriction of the right asserted by the applicant to decide the fate of her embryos, a right which at the very most relates to “private life”.", "153. Like the applicant, the Court observes at the outset that, according to its case-law, the concept of “private life” within the meaning of Article 8 of the Convention is a broad one not susceptible to exhaustive definition and embraces, among other things, a right to self-determination (see Pretty, cited above, § 61). The concept also incorporates the right to respect for both the decisions to become and not to become a parent (see Evans, cited above, § 71, and A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010).", "154. In the cases examined by the Court that have raised the particular question of the fate of embryos obtained from assisted reproduction, the Court has had regard to the parties’ freedom of choice.", "155. In Evans, when analysing the balance to be struck between the conflicting rights that the parties to in vitro fertilisation may rely on under Article 8 of the Convention, the Grand Chamber “[did] not consider that the applicant’s right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than [her ex-partner]’s right to respect for his decision not to have a genetically related child with her” (see Evans, cited above, § 90).", "156. Furthermore, in Knecht v. Romania (no. 10048/10, 2 October 2012), where the applicant complained, inter alia, of the refusal of the national authorities to authorise the transfer of her embryos from the medical centre where they were being stored to a specialised clinic of her choice, the Court held that Article 8 was applicable only from the standpoint of respect for the applicant’s private life (ibid., § 55) even though the applicant had also alleged an infringement of her right to respect for her family life (ibid., § 51).", "157. With regard to domestic law, the Court observes that, as submitted by the Government at the hearing, judgment no. 162 of 10 June 2014 in which the Constitutional Court declared unconstitutional the ban on heterologous fertilisation (see paragraphs 34-39 above) should now allow “adoption for birth”, a practice which consists in a couple or a woman adopting surplus embryos in order to have them implanted, and had been envisaged by the National Bioethics Committee in 2005. Furthermore, the Court notes that in the judgment in question the Constitutional Court found that the applicants’ choice to become parents and found a family with children was an aspect of “their freedom of self-determination regarding the sphere of their private and family life” (see paragraph 37 above). This means that the Italian legal system also attaches importance to the freedom of choice of parties to in vitro fertilisation regarding the fate of embryos not destined for implantation.", "158. In the instant case the Court must also have regard to the link existing between the person who has undergone in vitro fertilisation and the embryos thus conceived, which link is due to the fact that the embryos contain the genetic material of the person in question and accordingly represent a constituent part of that person’s genetic material and biological identity.", "159. The Court concludes that the applicant’s ability to exercise a conscious and considered choice regarding the fate of her embryos concerns an intimate aspect of her personal life and accordingly relates to her right to self-determination. Article 8 of the Convention, from the standpoint of the right to respect for private life, is therefore applicable in the present case.", "160. The Court observes, lastly, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and cannot be declared inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits of the complaint raised by the applicant", "(a) Whether there has been an “interference” “in accordance with the law”", "161. Like the parties, the Court considers that the ban under section 13 of Law no. 40/2004 on donating to scientific research embryos obtained from an in vitro fertilisation and not destined for implantation constitutes an interference with the applicant’s right to respect for her private life. It points out in this connection that at the time when the applicant had recourse to in vitro fertilisation there were no legal provisions regulating the donation of non-implanted embryos obtained by that technique. Consequently, until the Law came into force the applicant was not in any way prevented from donating her embryos to scientific research.", "(b) The legitimacy of the aim pursued", "162. During the hearing the Government submitted that the objective pursued by the measure complained of was to protect the “embryo’s potential for life”.", "163. The Court reiterates that the enumeration of the exceptions to the individual’s right to respect for his private life, as listed in Article 8 § 2, is exhaustive and that their definition is restrictive. For it to be compatible with the Convention, a limitation of this freedom must, in particular, pursue an aim that can be linked to one of those listed in this provision (see S.A.S. v. France, cited above, § 113).", "164. The Court observes that neither in their written observations nor in the reply to the question asked at the hearing did the Government refer to the provisions of paragraph 2 of Article 8 of the Convention.", "165. However, in their written observations on Article 8 of the Convention the Government referred to the considerations they had set out regarding Article 1 of Protocol No. 1 (see paragraph 124 above) according to which, in the Italian legal system, the human embryo is considered as a subject of law entitled to the respect due to human dignity (see paragraph 200 below).", "166. The Court also notes that, similarly, two third-party interveners (the ECLJ and the associations Movimento per la vita, Scienza e vita and Forum delle associazioni familiari) submitted that the human embryo had the status of “subject” (see paragraphs 140 and 143 above).", "167. The Court acknowledges that the “protection of the embryo’s potential for life” may be linked to the aim of protecting morals and the rights and freedoms of others, in the terms in which this concept is meant by the Government (see also Costa and Pavan, cited above, §§ 45 and 59). However, this does not involve any assessment by the Court as to whether the word “others” extends to human embryos (see A, B and C v. Ireland, cited above, § 228).", "(c) Necessity of the measure in a democratic society", "(i) The principles established in the Court’s case-law regarding assisted reproduction", "168. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, S.H. and Others v. Austria, cited above, § 91; Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130; K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001 ‑ VII; Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I; and P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002 ‑ VI).", "169. Furthermore, a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will usually be restricted (see Evans, cited above, § 77, and the other authorities cited therein, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see S.H. and Others v. Austria, cited above, § 94; Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports of Judgments and Decisions 1997 ‑ II; Fretté v. France, no. 36515/97, § 41, ECHR 2002 ‑ I; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002 ‑ VI; and A, B and C v. Ireland, cited above, § 232).", "170. The Court has also observed that in any event “the solutions reached by the legislature are not beyond [its] scrutiny. It falls to the Court to examine carefully the arguments taken into consideration during the legislative process and leading to the choices that have been made by the legislature and to determine whether a fair balance has been struck between the competing interests of the State and those directly affected by those legislative choices” (see S.H. and Others v. Austria, cited above, § 97).", "171. In the above-mentioned case the Court also observed that the Austrian Parliament had not yet “undertaken a thorough assessment of the rules governing artificial procreation, taking into account the dynamic developments in science and society” and pointed out that “this area, in which the law appear[ed] to be continuously evolving and which [was] subject to a particularly dynamic development in science and law, need[ed] to be kept under review by the Contracting States” (see S.H. and Others v. Austria, cited above, §§ 117-18).", "172. In Costa and Pavan (cited above, § 64), the Court held that Italian legislation on pre-implantation diagnosis lacked consistency in that it did not permit implantation to be limited to the embryos not affected by the disease of which the individuals concerned were healthy carriers but did allow the applicant to abort a foetus which would have been born with the disease in question.", "173. It also considered that it was not its task to substitute its own judgment for that of the national authorities in choosing the most appropriate regulations governing assisted reproduction, observing in particular that the use of in vitro fertilisation techniques raised sensitive moral and ethical questions in an area that was constantly evolving (see Knecht, cited above, § 59).", "(ii) Application of the above-mentioned principles to the present case", "174. The Court observes at the outset that, unlike the above-cited cases, the instant case does not concern prospective parenthood. Accordingly, while it is of course important, the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention, as it does not concern a particularly important aspect of the applicant’s existence and identity.", "175. Consequently, and having regard to the principles established in its case-law, the Court considers that the respondent State should be afforded a wide margin of appreciation in the present case.", "176. Furthermore, it observes that the question of the donation of embryos not destined for implantation clearly raises “delicate moral and ethical questions” (see Evans; S.H. and Others v. Austria; and Knecht, all cited above) and that the comparative law materials available to the Court (see paragraphs 69-76 above) show that, contrary to the applicant’s affirmations, there is no European consensus on the subject (see paragraph 137 above).", "177. Admittedly, certain member States have adopted a non-prohibitive approach in this area: seventeen of the forty member States about which the Court has information allow research on human embryonic cell lines. In some other States there are no regulations, but the relevant practices are non-prohibitive.", "178. However, certain States (Andorra, Latvia, Croatia and Malta) have enacted legislation expressly prohibiting any research on embryonic cells. Others allow research of this type only subject to strict conditions, requiring for example that the purpose be to protect the embryo’s health or that the research use cells imported from abroad (this is the case in Slovakia, Germany, Austria and Italy).", "179. Italy is therefore not the only member State of the Council of Europe which bans the donation of human embryos to scientific research.", "180. Furthermore, the above-cited Council of Europe and European Union materials confirm that the domestic authorities enjoy a broad margin of discretion to enact restrictive legislation where the destruction of human embryos is at stake, having regard, inter alia, to the ethical and moral questions inherent in the concept of the beginning of human life and the plurality of existing views on the subject among the different member States.", "181. An example of this is the Oviedo Convention, Article 27 of which provides that none of its provisions should be interpreted as limiting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine. Opinion no. 15, adopted on 14 November 2000 by the European Group on Ethics in Science and New Technologies to the European Commission (see paragraph 58 above), Resolution 1352 (2003) of the Parliamentary Assembly of the Council of Europe on human stem cell research (see Part III, point F above) and Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products (see Part IV, point B above) contain similar provisions.", "182. The limits imposed at European level aim rather to temper excesses in this area. This is the case for example of the ban on creating human embryos for scientific research provided for in Article 18 of the Oviedo Convention, or the ban on patenting scientific inventions where the process involves the destruction of human embryos (see the judgment of the Court of Justice of the European Union in Oliver Brüstle v. Greenpeace eV of 18 October 2011).", "183. That being said, the State’s margin of appreciation is not unlimited and it is the Court’s task to examine the arguments to which the legislature has had regard in reaching the solutions it has retained and to determine whether a fair balance has been struck between the interests of the State and those of the individuals directly affected by the solutions in question (see Evans, cited above, § 86, and S.H. and Others v. Austria, cited above, § 97).", "184. The Court notes in this context that, relying on documents relating to the preparatory works to Law no. 40/2004, the Government submitted at the hearing that the drafting of the Law had given rise to discussions that had taken account of the different scientific and ethical opinions and questions on the subject (see paragraph 127 above).", "185. It can be seen from a report by the XIIth Standing Committee submitted to Parliament on 26 March 2002 that doctors, specialists and associations working in the field of assisted reproduction had contributed to the discussions and that the liveliest part of these had in general concerned the sphere of individual freedoms, pitting the advocates of a secular conception of the State against those in favour of a denominational approach.", "186. Furthermore, during the discussions of 19 January 2004, Law no. 40/2004 had also been criticised on the ground, among others, that recognition of the embryo as a legal subject under section 1 of the Law gave rise, according to some, to a series of prohibitions, such as the use of heterologous fertilisation and the use of cryopreserved embryos not destined for implantation for scientific research.", "187. Like the Government, the Court reiterates that Law no. 40/2004 was the subject of several referendums that were declared invalid for failure to reach the required threshold of votes cast. In order to promote the development of scientific research in Italy in the area of diseases that are difficult to cure, one such referendum proposed to repeal the part of section 13 that made authorisation to carry out scientific research on embryos conditional on protecting their health and development.", "188. The Court therefore observes that, during the drafting process of the Law in question the legislature had already taken account of the different interests at stake, particularly the State’s interest in protecting the embryo and that of the persons concerned in exercising their right to individual self-determination in the form of donating their embryos to research.", "189. The Court notes the applicant’s allegation that Italian legislation on medically assisted reproduction is inconsistent, in support of her submission that the interference complained of is disproportionate.", "190. In her written observations and at the hearing, the applicant observed that it was difficult to reconcile the protection of the embryo advocated by the Government with a woman’s legal ability to terminate a pregnancy on therapeutic grounds up until the third month and also the use by Italian researchers of embryonic cell lines obtained from embryos that had been destroyed abroad.", "191. The Court’s task is not to review the consistency of the Italian legislation in the abstract. In order to be relevant for the purposes of the Court’s analysis, the inconsistencies complained of by the applicant must relate to the subject of the complaint that she raises before the Court, namely, the restriction of her right to self-determination regarding the fate of her embryos (see, mutatis mutandis, Olsson, cited above, § 54, and Knecht, cited above, § 59).", "192. With regard to the research carried out in Italy on imported embryonic cell lines taken from embryos that had been destroyed abroad, the Court observes that, while the right asserted by the applicant to decide the fate of her embryos relates to her wish to contribute to scientific research, that cannot however be seen as a circumstance directly affecting the applicant.", "193. Furthermore, the Court takes note of the information provided by the Government during the hearing, according to which the embryonic cell lines used in Italian laboratories for research purposes are never produced at the request of the Italian authorities.", "194. It agrees with the Government that the deliberate and active destruction of a human embryo cannot be compared with the use of cell lines obtained from human embryos destroyed at an earlier stage.", "195. It concludes from the foregoing that, even supposing that there are inconsistencies in the legislation as alleged by the applicant, these are not capable of directly affecting the right invoked by her in the instant case.", "196. Lastly, the Court observes that in this case the choice to donate the embryos in question to scientific research emanates from the applicant alone, since her partner is dead. The Court does not have any evidence that her partner, who had the same interest in the embryos in question as the applicant at the time of fertilisation, would have made the same choice. Moreover, there are no regulations governing this situation at domestic level.", "197. For the reasons outlined above, the Court considers that the Government have not overstepped the wide margin of appreciation enjoyed by them in the present case and that the ban in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.", "198. There has therefore been no violation of the applicant’s right to respect for her private life under Article 8 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "199. Relying on Article 1 of Protocol No. 1, the applicant complained that she was unable to donate her embryos and was obliged to keep them in a state of cryopreservation until their death. Article 1 of Protocol No. 1 provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties’ submissions", "1. The Government’s submissions", "200. The Government submitted at the outset that the human embryo could not be regarded as a “thing” and that it was in any event unacceptable to assign an economic value to it. They observed that in the Italian legal system the human embryo was considered as a subject of law entitled to the respect due to human dignity.", "201. They also submitted that the Court afforded member States a wide margin of appreciation regarding the determination of the beginning of human life (they referred to Evans, cited above, § 81), particularly in areas such as this, where complex moral and ethical questions were in issue that were not the subject of a consensus among the member States of the Council of Europe.", "202. They concluded that there had been no violation of Article 1 of Protocol No. 1 in the present case.", "2. The applicant’s submissions", "203. The applicant submitted that embryos conceived by in vitro fertilisation could not be regarded as “individuals” because if they were not implanted they were not destined to develop into foetuses and be born. She concluded that, from a legal point of view, they were “possessions”.", "204. In the circumstances she considered that she had a right of ownership of her embryos and that the State had imposed restrictions on that right that were not justified on any public-interest grounds. In her view, the protection of the embryos’ potential for life could not reasonably be invoked in that regard since they were destined to be eliminated.", "3. Observations of the third parties", "(a) The European Centre for Law and Justice (ECLJ)", "205. The ECLJ submitted that embryos could not be regarded as “things” and accordingly could not be deliberately destroyed. It also argued that the concept of “possession” had an inherently economic connotation which had to be ruled out in the case of human embryos.", "206. Referring to Vo v. France ([GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII), it pointed out, lastly, that the Court allowed States to determine in their domestic legal order “when the right to life begins” and that it afforded them a wide margin of appreciation in this area (see A, B and C v. Ireland, cited above, § 237).", "(b) The associations Movimento per la vita, Scienza e vita and Forum delle associazioni familiari, represented by Mr Casini", "207. These third-party interveners submitted that the human embryo could never be regarded as a “thing”.", "208. They submitted, further, that Italian legislation on the subject was consistent. While they acknowledged that abortion on therapeutic grounds was legal, they observed that this was not because the embryo could be regarded as a “thing” but because account was taken of the different interests involved, particularly those of the mother.", "(c) The associations Luca Coscioni, Amica Cicogna Onlus, L’Altra Cicogna Onlus and Cerco Un Bimbo and forty-six members of the Italian Parliament, represented by Ms Gallo", "209. Ms Gallo reiterated the arguments submitted by the applicant concerning the status of the embryo.", "(d) The associations VOX – Osservatorio italiano sui Diritti, SIFES (Society of Fertility, Sterility and Reproductive Medicine) and Cittadinanzattiva, represented by Ms D’Amico, Ms Costantini, Mr Clara, Ms Ragni and Ms Liberali", "210. These third-party interveners did not submit any observations under Article 1 of Protocol No. 1.", "B. The Court’s assessment", "1. The principles established in the Court’s case-law", "211. The Court reiterates that the concept of “possessions” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999 ‑ II; Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000 ‑ I; and Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004 ‑ V).", "212. Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Future income cannot be considered to constitute a “possession” unless it has already been earned or is definitely payable. Further, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 69, ECHR 2002 ‑ VII).", "213. However, in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a legitimate expectation if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 ‑ IX).", "2. Application of the above principles to the present case", "214. The Court notes that the present case raises the preliminary question of the applicability of Article 1 of Protocol No. 1 to the facts of the instant case. It notes that the parties have diametrically opposed views on this matter, especially regarding the status of the human embryo in vitro.", "215. It considers, however, that it is not necessary to examine here the sensitive and controversial question of when human life begins as Article 2 of the Convention is not in issue in the instant case. With regard to Article 1 of Protocol No. 1, the Court considers that it does not apply to the present case. Having regard to the economic and pecuniary scope of that Article, human embryos cannot be reduced to “possessions” within the meaning of that provision.", "216. As Article 1 of Protocol No. 1 is not applicable in the instant case, this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4 thereof." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants were born in 1985 and 1980 and live in Jilemnice and Prague respectively.", "A. Application lodged by Ms Šárka Dubská", "9. The applicant gave birth to her first child in hospital in 2007 without any complications. According to her, during the birth the medical personnel present were urging her to agree to undergo various kinds of medical intervention even though she had expressly stated her wish not to be subjected to any unnecessary medical treatment. She was also forced to give birth in a position she did not find comfortable. She wanted to leave the hospital a few hours after the birth as both she and the baby were healthy, but a doctor ordered her to stay in the hospital. She therefore did not leave until the next day, when she presented a letter from her paediatrician, who confirmed that the applicant would take care of the child.", "10. In 2010 the applicant became pregnant for the second time with an expected delivery date in the middle of May 2011. The pregnancy was free from complications and the medical examinations and tests did not indicate any problems. Since she considered that giving birth in a hospital had been stressful for her, the applicant decided to give birth at home and searched for a midwife to assist at the birth. However, she was unable to find any midwife who was willing to assist her with a home birth.", "11. On 5 April 2011 she wrote to her health-insurance company and to the Liberec Regional Office ( krajský úřad ) asking for help in finding a midwife.", "12. On 7 April 2011 the health-insurance company replied that Czech legislation did not provide for the possibility of a public health-insurance company covering costs arising from home births and that it therefore had no contracts with any health professionals providing such services. Moreover, prevailing expert medical opinion did not approve of home births.", "13. In a letter of 13 April 2011 the Regional Office added that the midwives listed in its register of health professionals were, in any event, only allowed by law to attend births at premises possessing the technical equipment required by Decree no. 221/2010 and not in a private home.", "14. Not having found any health professional to assist her, the applicant gave birth to her son alone at home on 11 May 2011.", "15. On 1 July 2011 she lodged a constitutional appeal ( ústavní stížnost ), complaining that she had been denied the possibility of giving birth at home with the assistance of a health professional, in violation of her right to respect for her private life.", "16. On 28 February 2012 the Constitutional Court ( Ústavní soud ) dismissed the appeal, holding that it would be contrary to the principle of subsidiarity for it to decide on the merits of the case, because the applicant had not exhausted all the available remedies, which included an action for protection of personal rights under the Civil Code and an application for judicial review under Article 82 of the Code of Judicial Administrative Procedure. It nevertheless expressed its doubts as to the compliance of Czech legislation with Article 8 of the Convention and asked the relevant parties to initiate a serious and well-informed debate about new legislation. Nine out of the fourteen judges attached separate opinions to the decision, in which they disagreed with the reasoning behind it. Most of them considered that the Constitutional Court should have dismissed the appeal as an actio popularis and should have refrained from expressing any views on the constitutionality of the legislation concerning home births.", "B. Application lodged by Ms Alexandra Krejzová", "17. The applicant is the mother of two children who were born at home in 2008 and 2010 with the assistance of a midwife. The midwives attended the births without any authorisation from the State.", "18. According to the applicant, before deciding to give birth at home, she had visited several hospitals, which had all refused her requests to deliver the baby without any medical intervention that was not strictly necessary. They had also refused to agree to her wish for uninterrupted contact with the baby from the moment of birth, as the regular practice was to take the child away from the mother immediately after the birth to be weighed and measured and for further medical observation for a period of two hours.", "19. At the time of lodging the present application, the applicant was pregnant again, with an expected delivery in the middle of May 2012. The pregnancy was free from complications and she again wished to give birth at home with the assistance of a midwife. However, she was unable to find a midwife willing to assist because of the risk of a heavy fine if medical services were provided without authorisation. The applicant asked various authorities to help to find a solution.", "20. In a letter of 18 November 2011 the Ministry of Health replied that it did not provide medical services to individual patients and that the applicant should make enquiries to the City of Prague ( Město Praha ), which, acting as a regional office, registered and issued licences to health professionals.", "21. On 29 November 2011 the applicant ’ s health-insurance company informed her that the attendance of a health professional at a home birth was not covered by public insurance.", "22. On 13 December 2011 the City of Prague informed the applicant that no midwife registered in Prague was authorised to assist with home births.", "23. On 7 May 2012 the applicant gave birth to a child in a maternity hospital in Vrchlabí, 140 km away from Prague. She had chosen that hospital because of its reputation for respecting the wishes of mothers during delivery. Nevertheless, according to her, not all her wishes had been respected. Despite the fact that both she and the child had been healthy and that no complications had occurred during the birth, the applicant had had to stay in the hospital for seventy-two hours. The newborn baby had been separated from her after the birth, and before leaving the maternity hospital the remains of the child ’ s umbilical cord had been cut off despite her wishes to the contrary.", "II. GENERAL INFORMATION PERTAINING TO HOME BIRTHS IN THE CZECH REPUBLIC", "A. Guidelines issued and action taken by the Ministry of Health", "24. In its bulletin no. 2/2007 of February 2007 the Ministry of Health published practice guidelines, which stated:", "“Conducting a delivery in the Czech Republic is regarded as a health-care service that is provided only in a health-care institution. Each health-care institution must fulfil the statutory requirements ... and the requirements laid down by the relevant secondary legislation.”", "25. On 20 March 2012 the Ministry of Health set up an expert committee on obstetrics with the objective of studying the issue of home births. There were representatives of care recipients, midwives, physicians ’ associations, the Ministry of Health, the Government ’ s Commissioner for Human Rights and public health-insurance companies. The representatives of the physicians ’ associations boycotted the meetings, declaring that the current state of affairs was satisfactory and that, in their view, there was no need to change anything. Subsequently, the Minister of Health removed the representatives of care recipients, midwives and the Government ’ s Commissioner for Human Rights, with the argument that only by changing the committee ’ s composition in this way it would be possible for it to agree on certain conclusions.", "26. On 18 January 2013 the Governmental Council for Equal Opportunities for Women and Men ( Rada vlády pro rovné příležitosti žen a mužů ), an advisory body to the Government, recommended the prevention of further discrimination against women in the enjoyment of their right to a free choice of the method and circumstances of giving birth and the place of delivery. It also recommended the prevention of discrimination against midwives by permitting them to practise their profession fully through their inclusion in the public health-insurance system. The Council also referred to the recommendations of the Committee on the Elimination of Discrimination against Women, which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women, to support its position that women should have a choice of where to give birth.", "27. In its bulletin no. 8/2013 published on 9 December 2013, which replaced the previous practice guidelines of 2007, the Ministry of Health described the procedure for providers of health-care services when discharging newborns into their own social environment. It stated that the recommendation of specialists was that a newborn should be discharged from the maternity hospital no sooner than seventy-two hours after birth. The new procedure allows for the discharge of the newborn from the maternity hospital less than seventy-two hours after the birth at the request of the newborn ’ s legal representative, provided that the latter:", "“(a) has submitted a written withdrawal of his or her agreement to the provision of medical services to the newborn, or a written statement declaring his or her disagreement with the provision of the medical services, or, alternatively, such agreement or disagreement has been entered in the newborn ’ s medical documentation ...;", "(b) has been demonstrably and duly informed about the possible consequences following the discharge of the newborn before seventy-two hours have elapsed since the birth ...;", "(c) has been duly informed that – in the interests of the subsequent healthy development of the newborn – the Czech specialist medical associations recommend:", "1. that a clinical examination be conducted within twenty-four hours of the discharge of the newborn ...;", "2. that a blood sample be taken within forty-eight to seventy-two hours following the birth for the purposes of screening for hereditary metabolic malfunctions ...”", "B. Data on perinatal mortality", "28. According to estimated data provided by the World Health Organisation for 2004, the Czech Republic was among the countries with the lowest perinatal mortality rate, which is defined as the number of stillbirths and deaths in the first week of life. The rate for the Czech Republic was 0.4%. In other European countries the figures ranged from 0.5% in Sweden and Italy to 4.7% in Azerbaijan. In most European countries the figures were below 1%. According to their 2006 report, perinatal mortality is an important indicator of maternal care and maternal health and nutrition; it also reflects the quality of available obstetric and paediatric care, comparing different countries. The report recommended that, if possible, all foetuses and infants weighing at least 500 g at birth, whether alive or dead, should be included in the statistics. The reported data regarding stillbirths were not adjusted to this effect in the study.", "29. According to the European Perinatal Health Report on the health and care of pregnant women and babies in Europe in 2010, issued in 2013 within the framework of the activities of the Euro-Peristat Project, the Czech Republic was among the countries with the lowest mortality rate for newborns in the first twenty-seven days of their life. The rate was 0.17%. The data for other countries included in the report, mostly European Union member States, ranged from 0.12% for Iceland to 0.55% for Romania.", "C. Criminal proceedings against midwives", "30. It appears that no midwives have been prosecuted in the Czech Republic for attending home births per se. Several have been prosecuted, however, for alleged malpractice in connection with a delivery at home. The applicants referred to the cases of Ms Š. and Ms K., who are both well-known promoters of natural deliveries without any unnecessary medical intervention and who used to regularly conduct home deliveries.", "31. On 27 March 2013 the Prague 6 District Court ( obvodní soud ) found Ms Š. guilty of negligently causing the death of a baby who was stillborn. She was sentenced to two years ’ imprisonment, suspended for five years, and prohibited from practising the occupation of midwife for three years. The culpability of Ms Š. was based on the fact that she had not strongly advised the mother to contact a medical facility when consulted by telephone during a labour that was already ongoing at home. She had thus given flawed advice to the mother-to-be without actually examining her. The conviction was upheld on appeal by the Prague Municipal Court ( městský soud ) on 29 May 2013, although the sentence was changed to fifteen months ’ imprisonment, suspended for thirty months, and two years ’ prohibition on practising as a midwife.", "32. On 29 April 2014 the Supreme Court ( Nejvyšší soud ) quashed the judgments of the lower courts. Ms Š. was eventually acquitted by the District Court on 23 May 2016. It appears that the proceedings are currently pending before the appellate court.", "33. On 21 September 2011 the Prague 3 District Court found Ms K. guilty of negligently causing bodily harm to a baby whose home birth she had attended and who had stopped breathing during the delivery. The baby died several days later. Ms K. was sentenced to two years ’ imprisonment, suspended for five years, prohibited from practising as a midwife for five years, and ordered to pay 2,700,000 Czech korunas (CZK) (equivalent to 105,000 euros (EUR)) by way of reimbursement of the costs incurred by the insurance company in treating the child until the latter ’ s death. According to the court, the malpractice on the part of Ms K. consisted in the fact that she had not followed the standard procedures for deliveries as laid down by the Czech Medical Association ( Česká lékařská komora ) and her conduct had thus been non lege artis. The criminal complaint was not lodged by the parents but by a hospital.", "34. On 24 July 2013 the Constitutional Court quashed all the judgments in the case against Ms K., finding that there had been a violation of her right to a fair trial. It held that the conclusions of the ordinary courts as to Ms K. ’ s guilt had been too subjective and were not supported by the evidence beyond all reasonable doubt, thereby violating the principle of the presumption of innocence. It stated in particular that the courts had uncritically relied on an expert opinion which they had failed to subject to thorough scrutiny. It held that – on the basis of the expert opinion – the courts had applied very strict liability to the conduct of Ms K. in a situation where it had not been clear how she could have prevented the baby ’ s death. Moreover, it had been established that she had tried to help the baby and had called an ambulance immediately after establishing that the baby had hypoxia. To foresee every possible complication during delivery and be able to react to it immediately, as was required of Ms K., would ultimately lead de facto to an absolute prohibition of home births. In that context the Constitutional Court noted:", "“... a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of parents to a free choice of the place and mode of delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospital.”", "I. Decree of the Ministry of Health no. 99/2012", "61. The Decree on Minimum Personnel Requirements for the Provision of Health-care Services ( vyhláška o požadavcích na minimální personální zabezpečení zdravotních služeb ) entered into force on 1 April 2012. The chapter entitled “Personnel Requirements for Provision of Home Care” indicates that nursing care in gynaecology and birth assistance is to be provided by a midwife qualified to practise her profession independently and a midwife with a special qualification competent to practise her profession independently if activities specified in another legal provision are to be carried out (midwife for intensive care; midwife for intensive care in neonatology; or midwife for community care).", "V. COMPARATIVE-LAW MATERIAL", "67. From the information available to the Court, it would appear that planned home births are provided for in domestic law and regulated in twenty member States of the Council of Europe (Austria, Belgium, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, the Netherlands, Poland, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia” and the United Kingdom). In these countries, the right to a home birth is never absolute and is always dependent on certain medical conditions being satisfied. Moreover, national health insurance covers home birth in only fifteen of these countries.", "68. It would also appear that home births are unregulated or under-regulated in twenty-three member States (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Finland, Georgia, Lithuania, Malta, the Republic of Moldova, Monaco, Montenegro, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine). It would appear that in some of these countries, private home births do take place but in a legal vacuum and without national health cover. Moreover, no legislation has been found which prohibits the assistance of midwives at home births. In a very small number of the member States surveyed, disciplinary or criminal sanctions are possible, but appear to be rarely imposed." ]

[ "III. RELEVANT DOMESTIC LAW", "A. People ’ s Health Care Act", "35. Under section 12a(1) of the People ’ s Health Care Act (no. 20/1966 – zákon o péči o zdraví lidu ), which remained in force until 31 March 2012, an institution which provided health care had to be equipped with appropriate human, material and technical resources depending on the nature and extent of health care it provided. Under section 12a(2) of the Act, the Ministry of Health was to specify, by means of a decree, the requirements for material, human and technical resources in health-care institutions.", "36. Section 18(1) of the Act specified that outpatient care, which also included the visiting service, was provided by a general practitioner and other specialists in consulting rooms or in associated outpatient institutions.", "B. Health Care in Private Health-Care Institutions Act", "37. Section 4(1) of the Health Care in Private Health-Care Institutions Act (no. 160/1992 – zákon o zdravotní péči v nestátních zdravotnických zařízeních ), which was in force until 31 March 2012, required private institutions to be equipped with appropriate human, material and technical resources for the type and extent of health care they provided.", "38. Under section 4(2)(b), the Ministry of Health was empowered to adopt a decree to specify the requirements for technical and material equipment in private health-care institutions.", "39. By virtue of section 5(2)(a), a private institution could provide health care as specified in the decision on registration.", "40. Under section 14, a person breaching the Act could be fined, but the amount of the fine was not specified.", "C. Paramedical Professions Act", "41. Under section 6(3) of the Paramedical Professions Act (no. 96/2004 – zákon o nelékařských zdravotnických povoláních ), which entered into force on 1 April 2004, the duties involved in practising the profession of midwife include, inter alia, physiological deliveries and provision of care for newborns.", "D. Decree no. 424/2004 of the Ministry of Health", "42. The Decree of the Ministry of Health on Activities of Medical Staff and Other Specialists ( vyhláška, kterou se stanoví činnosti zdravotnických pracovníků а jiných odborných pracovníků ), which entered into force on 20 July 2004 and remained valid until 13 March 2011, set out the duties of health professions and other professionals. Under section 5(1)(f), midwives could carry out certain activities without professional supervision, including physiological deliveries in emergency situations, together with episiotomy if necessary.", "E. Decree no. 221/2010 of the Ministry of Health", "43. The Decree of the Ministry of Health on Requirements for Material and Technical Equipment in Health-Care Institutions ( vyhláška o požadavcích na věcné a technické vybavení zdravotnických zařízení ), which entered into force on 1 September 2010 and remained valid until 31 March 2012, provided for the possibility of midwives performing deliveries but only in specially equipped rooms, measuring at least 15 square metres, containing the following essential items: ( a) a birthing bed for a delivery room or other appropriate device for carrying out a physiological delivery; (b) an examination light; (c) a sterile clamp or rubber band for the umbilical cord; (d) sterile scissors; (e) an EFM (electronic foetal monitoring) device; (f) a pulse oximeter; (g) a suction unit; (h) a laryngoscope and instruments to secure the airways; (i) a bed for women after the birth; (j) a suitable space and surface for treating the newborn; (k) scales for weighing the newborn; (l) an instrument to measure the newborn ’ s length; and (m) a source of medical oxygen. Moreover, a room for care of a woman and her newborn after the birth, measuring at least 8 square metres, and a shower had to be made available.", "44. Such rooms had to be located so as to allow a birth by Caesarean section or an operation to terminate birth to be carried out in a health-care institution providing in-patient care and complying with the requirements set out in the Decree, within fifteen minutes from the discovery of complications.", "45. Moreover, the Decree entitled midwives to set up a “contact workplace”, which had to be equipped with: (a) suitable furniture for the work of a midwife; and (b) a mobile phone.", "46. Midwives were also required to have a visiting bag containing: (a) a device for detection of foetal sounds; (b) disposable equipment for examining pregnant women; (c) a sphygmomanometer; (d) a stethoscope; (e) a medical thermometer; and (f) first-aid equipment, including a device for cardio-pulmonary resuscitation.", "47. Section 2 of the Decree required health-care institutions existing at the date of the Decree ’ s entry into force to comply with the requirements for material and technical equipment laid down in the Decree within twelve months from its entry into force.", "The period of twelve months was extended to twenty-eight months by Decree no. 234/2011, which entered into force on 31 August 2011.", "F. Medical Services Act", "48. The Medical Services Act (no. 372/2011 – zákon o zdravotních službách ) entered into force on 1 April 2012. It replaced the People ’ s Health Care Act (see paragraphs 3 5 -3 6 above), the Health Care in Private Health ‑ Care Institutions Act (see paragraphs 3 7 -4 0 above) and the Decree on Requirements for Material and Technical Equipment in Health-Care Institutions (see paragraphs 4 3 -4 7 above).", "49. In accordance with section 2(2)(a), “health services” means the provision of health care under the Act by health professionals, and also activities carried out by other professionals if these activities are directly connected with the provision of health care.", "50. In accordance with section 2(4)(a)(4) of the Act, “health care” means a set of activities and measures carried out in relation to individuals, for purposes including that of assistance during delivery.", "51. In accordance with section 4(1), a “health-care institution” means premises intended for the provision of health services.", "52. Under section 10 of the Act, the provision of health care in a patient ’ s own social environment, including home care, may involve only such procedures as are not subject to conditions regarding the technical and material equipment necessary for their performance in health-care institutions.", "53. Under section 11(5), health services can be provided only in the health-care institutions specified in the licence for the provision of health services, except for health services which are provided in a patient ’ s own social environment. In those cases, providers of health-care services must have their own contact home-care workplace.", "54. Pursuant to section 11(6), a health-care institution must possess technical and material equipment for the provision of health services. The technical and material equipment in health-care institutions must correspond to their specialisation and the type and form of health care they provide. Requirements for the minimum technical and material equipment are to be laid down in an implementing decree.", "55. Section 114 provides that a person providing a health-care service without an appropriate licence can be fined up to CZK 1,00 0,000 (EUR 37,000).", "G. Explanatory Report on the Medical Services Act", "56. The Explanatory Report on the Medical Services Act reads as follows, in so far as relevant:", "“The ... legislation ... belong[s] to a group of laws and regulations governing the legal conditions for fulfilling everyone ’ s constitutional right to the protection of health and the constitutional right of citizens to free medical care within the meaning of Article 31 of the Charter of Fundamental Rights and Freedoms and the right to the protection of human dignity, the right to private and family life and physical integrity ...", "The Act ... defines professional health care ... The State must regulate [such] health care ...; the State is obliged to ensure the availability of health-care services and also their adequate quality and safety. This requirement is satisfied by the condition that professional health care can only be provided by a provider of health-care services ...", "The ... Act will be one of the pieces of legislation creating the conditions for the performance of the Czech Republic ’ s obligations in the field of health protection and the provision of health-care services, as deriving from ... the International Covenant on Economic, Social and Cultural Rights ... and the European Charter ... The Act also takes into consideration the Convention on the Rights of the Child. ...", "As regards the provision of health-care services, the patient is an equal partner with the provider and with the medical staff and has the right to give or to refuse to give consent to the health-care services offered, on the basis of information and advice on such services duly given by the provider or a person the provider has designated for that purpose ...", "Providing patients with health services in their own social environment is often more efficient and appropriate. The patient ’ s own social environment does not necessarily mean only his or her home but can also mean another alternative environment, such as social care homes or children ’ s homes. ... The health-care services provided in the patient ’ s own social environment can be divided into home-care services and outpatient health-care services. Home-care services have a significant effect on planned systemic changes in the health-care system, by... improving patients ’ lives and prolonging their stay in their home environment. ...", "One of the patient ’ s fundamental rights is the right to free choice with regard to providers of health-care services. ... The Act will provide patients with the right to all information about their condition and about the health-care services to be provided to them. ...", "As part of care for their own health, individuals are able to make use of other activities based on their own choices; these activities include support for health and other activities in the field of ‘ self-treatment ’ ... The Act does not prevent these activities; it simply does not define them as being part of professional health care and health-care services, the quality of which is guaranteed by the State. The main reason is that it is not feasible to assess the quality of such care objectively and therefore it is not possible to guarantee its safety or efficiency. Therefore, health-care services can only be provided on the basis of the Medical Services Act.”", "H. Decree of the Ministry of Health no. 92/2012", "57. The Decree on Requirements for Minimum Technical and Material Equipment at Health-Care Institutions and Contact Home Care Workplaces ( vyhláška o požadavcích na minimální technické a věcné vybavení zdravotnických zařízení a kontaktních pracovišť domácí péče ) entered into force on 1 April 2012. It replaced the Decree on Requirements for Material and Technical Equipment in Health-Care Institutions (see paragraphs 4 3 -4 7 above).", "58. The Decree provides, inter alia, for the possibility of midwives performing deliveries in delivery rooms specially equipped for that purpose. The equipment requirements are the same as those specified in Decree no. 221/2010. However, the Decree includes a new requirement: if a Caesarean section or an operation to terminate birth cannot be performed in a medical institution providing inpatient care within fifteen minutes from the discovery of birth complications, it is necessary to set up a delivery room complying with the requirements indicated in the Decree. Moreover, a midwife ’ s workplace must also be equipped in accordance with the Decree.", "59. As regards “contact workplaces” for the provision of nursing care in relation to gynaecology and birth assistance, the Decree requires such workplaces to contain: (a) suitable furniture for the work of a midwife; (b) a filing cupboard if medical records are not kept exclusively in electronic form; (c) a connection to a public mobile telephone network; (d) a device for detection of foetal sounds; (e) disposable equipment for examining pregnant women; (f) a sphygmomanometer; (g) a stethoscope; (h) a medical thermometer; (i) first-aid equipment, including a device for cardio-pulmonary resuscitation; and (j) a box for transporting biological material. The contact workplace must have a surface area of at least 10 sq. m and sanitary facilities for employees.", "60. Health-care institutions and contact home-care workplaces existing at the date of the entry into force and satisfying the requirements of the previous Decree had to comply with the requirements laid down in the new Decree within a period of between nine and twelve months.", "IV. RELEVANT INTERNATIONAL MATERIAL", "A. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine)", "62. The relevant provisions of the Convention on Human Rights and Biomedicine read as follows:", "Article 5 - General rule", "“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.", "The person concerned may freely withdraw consent at any time.”", "Article 6 - Protection of persons not able to consent", "“... an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.", "Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. ...”", "Article 8 - Emergency situation", "“When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”", "63. Moreover, the explanatory report on the Convention on Human Rights and Biomedicine states in paragraph 34 that “the word ‘ intervention ’ is understood in its widest sense, as in Article 4 – that is to say, it covers all medical acts, in particular interventions performed for the purpose of preventive care, diagnosis, treatment, rehabilitation or research”.", "B. Convention on the Rights of the Child", "64. The relevant provisions of the Convention on the Rights of the Child read as follows:", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. ...”", "Article 5", "“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.”", "Article 6", "“1. States Parties recognise that every child has the inherent right to life.", "2. States Parties shall ensure to the maximum extent possible the survival and development of the child.", "...”", "Article 1 8", "“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...”", "Article 24", "“1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.", "2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:", "(a) To diminish infant and child mortality;", "...", "(d) To ensure appropriate pre-natal and post-natal health care for mothers; ...”", "C. Convention on the Elimination of All Forms of Discrimination against Women", "65. The Committee on the Elimination of Discrimination against Women recommended in its Concluding Observations on the Czech Republic of 22 October 2010 (CEDAW/C/CZE/CO/5), under the heading “ Health” in particular:", "“36. While acknowledging the need to ensure maximum safety for mothers and newborns during childbirth, as well as the State party ’ s low perinatal mortality rate, the Committee takes note of reports of interference with women ’ s reproductive health choices in hospitals, including the routine application of medical interventions, reportedly often without the woman ’ s free, prior and informed consent or any medical indication, a rapid increase in the caesarean section rate, separation of newborns from their mothers for up to several hours without health-related reasons, refusal to release the mother and child from hospital before 72 hours after childbirth, and patronizing attitudes of doctors which impede the exercise by mothers of their freedom of choice. It also notes reports about women ’ s limited options for delivering their babies outside hospitals.", "37. The Committee recommends that the State party consider accelerating the adoption of a law on patients ’ rights, including women ’ s reproductive rights; adopt a protocol of normal birth care ensuring respect for patients ’ rights and avoiding unnecessary medical interventions; ensure that all interventions are performed only with the woman ’ s free, prior and informed consent; monitor the quality of care in maternity hospitals; provide mandatory training for all health professionals on patients ’ rights and related ethical standards; continue raising patients ’ awareness of their rights, including by disseminating information; and consider taking steps to make midwife-assisted childbirth outside hospitals a safe and affordable option for women.”", "66. In its Concluding Observations on the Czech Republic of 14 March 2016 (CEDAW/C/CZE/CO/6), the Committee recommended the following:", "“ 4. The Committee welcomes the progress achieved since the consideration in 2010 of the State party ’ s fifth periodic report (CEDAW/C/CZE/CO/5) in undertaking legislative reforms, including the adoption of:", "(a) The adoption of the Act No. 372/2011 Coll., on health services and the terms and conditions for the providing of such services (The Act on Healthcare Services), as amended by Act No. 167/2012 Coll.; ...", "...", "30. The Committee welcomes the low rates of perinatal mortality in the State party. However, it is concerned about continued reports on the conditions for childbirth and obstetric services in the State party unduly curtailing women ’ s reproductive health choices, including:", "(a) Unnecessary separation of newborns from their mothers without medical grounds;", "(b) Disproportionate limitations on home childbirths;", "(c) Frequent use of episiotomy without medical need and in contravention of the mother ’ s preference to abstain from them; and", "(d) Undue restrictions on the use of midwives in lieu of physicians/gynecologists in situations where such use does not pose a health risk.", "31. The Committee reiterates its previous recommendation that the State party accelerate the adoption of a law on patients ’ rights, including women ’ s reproductive rights. In doing so, the State party should:", "(a) Adopt clear guidelines for ensuring that the separation of newborns from their mothers is subject to the requirement of medical necessity;", "(b) Establish a prenatal care system that allows for the effective assessment of the suitability of home childbirths and the option for it where appropriate;", "(c) In light of its recent adoption of Act No. 372/2011 Coll., on health services and the terms and conditions for the providing of such services, ensure its effective implementation in compliance with the Convention, including by: Adopting and enforcing a protocol of normal birth care ensuring respect for patients ’ rights and avoiding unnecessary medical interventions; and ensuring that all interventions are performed only with the woman ’ s free, prior and informed consent; monitoring the quality of care in maternity hospitals; providing mandatory training for all health professionals on patients ’ rights and related ethical standards; continue raising patients ’ awareness of their rights, including by disseminating information; and", "(d) Undertake measures, including legislation, to make midwife-assisted childbirth outside hospitals a safe and affordable option for women.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "69. The applicants complained that Czech law did not allow health professionals to assist them with giving birth at home, in violation of the right to private life as provided for in Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "70. The Government contested that argument.", "A. The Chamber judgment", "71. In its judgment of 11 December 2014, the Chamber held that there had been no violation of Article 8 of the Convention. It concluded that giving birth was a particularly intimate aspect of a mother ’ s private life encompassing issues of physical and psychological integrity, medical intervention, reproductive health and the protection of health-related information. Decisions regarding the circumstances of giving birth, including the choice of the place of birth, therefore fell within the scope of the mother ’ s private life for the purposes of Article 8 of the Convention. The Chamber considered it appropriate to analyse the applicants ’ complaints as concerning negative obligations: the fact that it had been impossible for the applicants to be assisted by midwives when giving birth at home amounted to an interference with their right to respect for their private life.", "72. The interference was in accordance with the law since, although the legislation was not entirely clear, the applicants had nevertheless been able to foresee with a degree that was reasonable in the circumstances that the assistance of a health professional at a home birth was not permitted by law. The interference had served a legitimate aim as it had been designed to protect the health and safety of both the newborn child and, at least indirectly, the mother.", "73. As to whether the interference had been necessary in a democratic society, the Chamber held that the respondent State was entitled to a wide margin of appreciation on account of the need for an assessment by the national authorities of expert and scientific data concerning the relative risks of hospital and home births, the need for strong State involvement because of newborn children ’ s vulnerability and dependence on others, the lack of any clear common ground among the member States on the question of home births and, lastly, general social and economic policy considerations, such as the allocation of resources to set up an adequate emergency system for home births.", "74. The Chamber held that while the situation in question had a serious impact on the applicants ’ freedom of choice, the Government had focused primarily on the legitimate aim of protecting the best interests of the child. Depending on their nature and seriousness, the child ’ s interests could override those of the parent, who was not entitled under Article 8 of the Convention to take measures that would harm the child ’ s health and development. While there was generally no conflict of interest between mother and child, certain choices as to the place, circumstances or method of delivery could give rise to an increased risk to the health and safety of the newborn child, as the figures for perinatal and neonatal deaths attested.", "75. Although the majority of the research studies available to the Chamber on the safety of home births indicated that there was no increased risk compared to hospital births, this was true only if certain conditions were fulfilled, namely that the birth was low-risk, attended by a qualified midwife and close to a hospital in the event of an emergency. Thus, situations such as in the Czech Republic, where health professionals were not allowed to assist mothers giving birth at home and where there was no special emergency aid available, actually increased the risk to the life and health of mother and newborn. At the same time, however, the Government had argued that the risk for newborn children was higher in the case of home births and it was true that even where a pregnancy seemed to be without complications, unexpected difficulties requiring specialised medical intervention could arise during delivery. In these circumstances, the Chamber held that the mothers concerned, including the applicants, could not be said to have had to bear a disproportionate and excessive burden, and that accordingly, in adopting and applying the policy relating to home births, the Czech authorities had not exceeded the wide margin of appreciation afforded to them or upset the requisite fair balance between the competing interests.", "76. The Chamber lastly noted that notwithstanding this finding, the authorities should keep the relevant provisions under constant review, taking into account medical, scientific and legal developments.", "B. The parties ’ submissions to the Grand Chamber", "1. The applicants", "(a) Negative or positive obligations", "( i ) The applicant Ms Dubská", "77. The applicant maintained that the present case concerned the protection of both women and their children ’ s health, which was seriously undermined when the State allowed women to give birth at home but adopted regulations that made it impossible for them to receive assistance from a midwife. Relying on the Chamber judgment, the applicant submitted that the State had interfered with her private life. Although the case could be analysed through the lens of both positive and negative obligations, she considered it appropriate to assess the case primarily in terms of the negative obligation, since the fact that midwives were prohibited from assisting pregnant women with home births could be viewed as an interference with her right to respect for her private life. In other words, as a direct result of the State ’ s policies the applicant had been unable to obtain the assistance of a midwife when giving birth.", "(ii) The applicant Ms Krejzová", "78. The applicant stated that her inability to effectively opt for any alternative model of childbirth and the requirement for her to surrender to the obstetric model of birth care in hospital – causing her to experience obstetric violence – represented a serious breach of her right to decide on the circumstances in which to give birth, and interference with her right to physical and psychological integrity under Article 8 of the Convention. Although she believed that the circumstances of her case called for an assessment primarily in terms of the Government ’ s positive obligations, the applicant intended to apply a holistic approach to the assessment of whether the damage sustained by her was justifiable in the light of the relevant principles of the Convention, bearing in mind that the underlying principles of legality, legitimacy and proportionality were inherent in both the positive and negative obligations of the State.", "(b) Lawfulness", "(i) The applicant Ms Dubská", "79. The applicant maintained that the Czech legal system allowed for an interpretation to the effect that the assistance of a health-care professional at a home birth was permitted. Since there was a legal framework which regulated the duties of midwives, women ’ s right to self-determination and informed consent and the institution of in-home care – which also included assistance of health-care professionals with a home birth – it could be said that there was a minimum legal and institutional environment that allowed women to choose their place of birth. The applicant stated that recognising the possibility of choosing home birth did not require any detailed and explicit regulations or any enhancement of the existing emergency services. Furthermore, emergency services were already available to any women in the Czech Republic, regardless of where they chose to give birth and whether a health-care professional was present during the delivery or not.", "80. The applicant maintained that while legislation on home birth provided for the right of patients to decide and guaranteed that they could opt for home birth as a lawful alternative, this legislation, or at least its interpretation, was not clear or certain concerning the possibility of midwife services at home.", "81. Decree no. 221/2010 had entered into force on 1 September 2010, making no changes to the regulation of home births, and not imposing a ban on the provision of assistance during a home birth. The Decree identified three possible workplaces for midwives: a workplace where childbirth was allowed; a workplace where physiological childbirth was not allowed; and a midwife ’ s office for in-home care. It did not actually forbid midwives to perform home births, so it was unclear whether a midwife who had an office for in-home care could or could not provide assistance with home births outside her workplace. The applicant added in that connection that section 18(1) of the People ’ s Health Act permitted in-home care as part of health care. The Decree failed to regulate midwifery in a detailed manner. The applicant argued that even a midwife who had a registered workplace where childbirth was not allowed could offer assistance with a hospital birth and accompany a woman to hospital, despite not being employed by the hospital in question, provided that she concluded a special contract with it. The Decree had been in force only until 31 March 2012, and therefore had been unable to change the ambiguous situation which had existed before its adoption. Indeed, under section 2(1), health-care facilities already in operation had been given a twelve-month interim period to comply with the requirements of the Decree. The applicant noted in that connection that at the time when she had given birth, the Decree had been in force for only eight months and the existing health-care facilities – including midwives, who faced an unclear and unforeseeable registration process – had been under no obligation to comply with it.", "82. Referring to the Court ’ s judgment in Gillan and Quinton v. the United Kingdom (no. 4158/05, § 77, ECHR 2010 (extracts)), the applicant stressed that the legislation in place had not set any limits for decisions of the Ministry of Health regarding the conditions under which midwives could work in the Czech Republic. Furthermore, in the absence of any direct regulation of home births, no clear or transparent rules had been set for regional offices when determining which midwives could be granted a licence and the scope of such a licence.", "83. It was only after the applicant had given birth that the Medical Services Act (no. 372/2011) had been passed and had entered into force (on 1 April 2012), together with Decree no. 92/2012. The applicant stated that the contents and principles of the legal regulations remained unchanged. Indeed, the Medical Services Act provided for in-home care as one of the forms of health care, one of its variants being nursing care (section 10). The applicant stated that the definition of nursing care clearly included health care provided during pregnancy and childbirth (section 5(2)(g)). Furthermore, the Decree set down the requirements for technical equipment for midwives providing in-home care (Appendix no. 9). However, the Act contained a new provision enshrining the right of patients to receive health services in the least restrictive environment possible, provided that the quality and safety of such services was ensured as well (section 28(3)(k)). The applicant emphasised that neither the Act nor the Decree contained any restrictions preventing midwives from providing health services during home births in the form of in-home care. However, the legislation was interpreted by the Government and other public authorities in such a way that midwives were not allowed to provide assistance at home births, and this had a clear chilling effect on midwives, who were unwilling to provide such assistance. The applicant contended that the legislation was not accessible and foreseeable in its application as different interpretations were possible. She therefore disputed the Chamber ’ s conclusion that she could have reasonably foreseen that the assistance of a medical professional at a home birth was not allowed by law.", "(ii) The applicant Ms Krejzová", "84. The applicant agreed with the Government that Czech law had not allowed assisted home births at the time of her delivery in May 2012. However, she pointed out that during most of her pregnancy she had been bound by the pre-April 2012 legislation. The applicant reiterated in that connection that prior to 1 April 2012, there had been no statutory restriction on midwives providing health care during home births. In order to provide care, a midwife needed, inter alia, an “operational” licence authorising her to be regarded as a non-governmental medical facility. After the adoption of Decree no. 221/2010, which required midwives to have equivalent human, material and technical resources to those available in a delivery room in maternity hospitals, no midwife had been granted such a licence. However, although it had imposed extensive requirements on midwives in terms of equipment, the Decree had not automatically terminated the operational licences already issued. As a result, while they were still bound by the availability of compulsory equipment, there were midwives who theoretically could carry on their activities in line with the previous regulations, or rather the previous legal vacuum. As a result, pregnant women lacked legal certainty as to whether they could enjoy the assistance of a midwife during a home birth, and similarly midwives lacked the same certainty as to whether they could legally provide such assistance. Such a situation contravened the notions of foreseeability and absence of arbitrariness.", "85. As to the legislation introduced in 2012, namely Decree no. 92/2012, which in general imposed similarly extensive requirements on midwives in terms of human, material and technical resources, the applicant submitted that it infringed the compulsory procedure for the adoption of secondary legislation by the Ministry of Health. Ministries were obliged to ensure that a regulatory impact assessment was carried out in respect of new regulations. However, such assessments had not been performed, let alone published, by the commencement of the process for the adoption of Decree no. 221/2010 and Decree no. 92/2012, with the result that there had been no effective public scrutiny of the exercise of the legislative power delegated to the Ministry of Health.", "(c) Legitimate aim", "(i) The applicant Ms Dubská", "86. The applicant maintained that the Chamber had been incorrect in accepting the purported legitimate aim relied on by the Government. In her submission, the policy pursued by the State did not have the effect of protecting the health and life of women and their children, but instead exacerbated threats to their health and life. There was no logical connection between the declared legitimate aim of protecting the life and health of women and children on the one hand, and the interference with the right to protection of private life consisting in preventing the provision of health care during home births on the other hand. Instead, the prohibition on providing skilled care exposed women to increased risks to their health and life.", "(ii) The applicant Ms Krejzová", "87. The applicant stated that in the present case, there was no legitimate aim which could have been pursued by preventing her from enjoying midwife-based care.", "88. The principle of legitimacy inherently required that the aim pursued should be specific. This necessitated detailed knowledge on the State ’ s part of the specific matter to be regulated and of any deficiencies or room for improvement. The applicant pointed out that the necessity of detailed knowledge came to the fore when taking into account the complex matter at issue in the present case, which required an assessment by medical experts and scientific data concerning the relative risks of hospital and home births. Since the Government had introduced specific legislation entirely denying women the possibility of assistance from midwives at planned births outside hospital, it was reasonable to expect that such a measure should be based on sufficient expert analysis and scientific data justifying it, in order to meet the criterion of legitimacy.", "89. Indeed, until Czech women had been denied the right to decide on the circumstances of delivery in 2010 and 2012, it had been legally possible for them since 1992 to enjoy the assistance of a midwife during a home birth. The Government had thus had two decades to procure scientific data concerning out-of-hospital midwifery care and to carry out a comprehensive analysis of such care. However, they had never even claimed to have performed such a background analysis. Therefore, when denying women in 2010 and 2012 the right to decide on the circumstances in which they gave birth, the Government had not actually known what specific negative aspects and risks relating to assisted home births were to be eliminated by the legislation in question and what specific positive aim was to be achieved.", "(d) Necessity in a democratic society", "(i) The applicant Ms Dubská", "90. The applicant submitted that the present case was to be distinguished from the cases of Stübing v. Germany (no. 43547/08, 12 April 2012) and A, B and C v. Ireland ([GC], no. 25579/05, ECHR 2010), both of which had been referred to by the Chamber. The Court had found that both cases concerned issues of a “moral” nature and that A, B and C v. Ireland involved issues of particular “sensitivity” in the country concerned, and this had led it to allow a wide margin of appreciation despite the existence of common ground or consensus among member States.", "91. The applicant submitted that the present case did not concern moral or sensitive questions and that the Czech Republic had not suggested that any such matters were at issue, or that the aim or interest pursued by the State ’ s interference with the applicant ’ s rights under Article 8 was the protection of public morals. Moreover, the Chamber had incorrectly found that there was no clear common ground regarding skilled attendants at home births. In fact, sixteen out of thirty-two Council of Europe member States expressly allowed skilled attendants at a home birth under certain conditions, in five countries this was not expressly regulated but accepted in practice, and in two States legislation allowing home birth was being considered. The applicant was of the opinion that there was significant common ground among member States regarding the best way of safeguarding the interests of women wishing to give birth at home by allowing midwives to provide skilled assistance to them.", "92. The applicant further stated that the penalising approach adopted by the Czech Republic might affect women ’ s enjoyment of other fundamental rights, such as the right to life and health. By making birth at home less safe for women, the State might put these other rights at risk. As a result, the margin of appreciation should be narrow. The applicant added that the consensus among member States was supported by international expert opinion on the issues of maternal health and the importance of skilled attendants at birth. She referred in this connection to opinions of the World Health Organisation.", "93. The applicant noted that the Chamber ’ s admission that the conditions in most Czech hospitals were questionable, as far as respecting the mother ’ s choices was concerned, was in fact a very euphemistic way of describing treatment which often attained the level of inhuman and degrading treatment prohibited by Article 3 of the Convention. In her submission, hospital births in the Czech Republic were associated with a high risk of procedures that did not respect women ’ s choices and often were even detrimental to their health or the health of the newborn child. In addition, the national courts had repeatedly failed to afford protection where the rights of women had been violated in Czech maternity hospitals. This represented a type of violence which, in the Czech context, was completely ignored and downplayed.", "94. The applicant further pointed out that the State policy of preventing midwives or other skilled birth attendants from assisting women during home births was inconsistent with international standards regarding the elimination of preventable maternal and child mortality and morbidity. In addition, without providing any specifics, the applicant claimed that the situation in the Czech Republic was at odds with the obligations of the State under European Union law.", "(ii) The applicant Ms Krejzová", "95. The applicant stated that the right of women to choose the circumstances in which to give birth involved the general notion of choice, which comprised quantitative and qualitative components, both of them to be satisfied concurrently.", "96. It had been undisputed between the parties that the Medical Services Act and Decree no. 92/2012 prohibited the provision of midwife-based care at any births outside hospitals and that if the applicant intended to enjoy any assistance from qualified medical personnel, she had to give birth in hospital. Hence, the Czech childbirth set-up was a single-option one, being inherently incompatible with the notion of women ’ s choice of the circumstances in which to give birth.", "97. The applicant further stated that matters relating to pregnancy and delivery and the extent of women ’ s freedom in this regard also raised significant gender issues. Women ’ s reproductive rights stood for an inherently feminine area which had been oppressed by men, inter alia through the relocation and transformation of childbirth by the medical profession, thus weakening women ’ s natural responsibilities. This relocation had brought a new notion of hierarchy into the field of pregnancy and childbirth, such a notion being at odds with midwife-based care arising from a holistic, feminine approach to childbirth. In the masculine-driven field of biomedical obstetrics, a woman ’ s body forfeited its fundamental privacy and became vulnerable when faced with a male medical expert acting as a sort of public authority.", "98. The applicant reiterated that pregnancy and childbirth represented the most intimate aspects of a woman ’ s life, while the intimacy of the delicate act of childbirth inherently involved exposure of the woman ’ s body and her deepest emotions to other people. The right to self-determination included the freedom to decide whether to expose one ’ s body at all, and to what extent, to specific third parties. However, women giving birth could not ipso facto enjoy the same extent of control over their bodies in this regard, since they were compelled to share their most intimate sphere with third parties during childbirth. Taking into account the inherent limitations on a woman ’ s right to self-determination in this context, mechanisms compensating for such limitations were required. The right of women to decide on the circumstances in which to give birth was one of the most significant mechanisms of this kind. The applicant therefore asserted that her right to decide on the circumstances of delivery, as a mechanism compensating for her limited freedom of self-determination, did not in principle allow for further limitations deriving from the Government ’ s margin of appreciation, which, for this reason also, had to be a narrow one.", "99. Regarding the issue of European consensus in this matter, the applicant noted that out of thirty-three States Parties to the Convention, only four of them, including the Czech Republic, made assisted birth outside hospitals illegal and subject to sanctions in respect of medical professionals. Just as the existence of a European consensus narrowed the Government ’ s margin of appreciation in terms of a quantitative argument, the concept of the Convention as a living instrument further narrowed the Government ’ s margin of appreciation on qualitative grounds. In the applicant ’ s submission, the margin of appreciation was all the narrower when common values of member States were identified not only under the Convention, but also in other international instruments, regardless of whether they were binding or whether most States Parties to the Convention had ratified them, and also in the light of the general practice, moral climate and conduct observed in the member States.", "100. The applicant further maintained that the monopolisation of hospital care did not represent any safety benefit for newborns but actually increased the risks for the mother, including the risk of obstetric violence, and that home births did not have any adverse impact on perinatal mortality.", "101. In respect of the fair balance to be struck between the competing private and public interests, since a home birth was safer for low-risk expectant mothers than a hospital birth, as it did not involve any invasive, routine and harmful procedures, the public interest in the health and safety of expectant mothers could not be considered to be the interest outweighing the applicant ’ s private right. Moreover, the newborn ’ s health and safety was not the public interest at stake either. It had actually been proved that both medical childbirth in hospital and assisted home births provided a similar level of safety and health for the newborn child. Therefore, since in terms of safety the obstetric mode of childbirth did not achieve better results than assisted home births, this interest likewise could not represent a valid public interest that could outweigh the applicant ’ s right to choose the circumstances in which to give birth.", "102. In the applicant ’ s submission, there were other reasons supporting a conclusion that there had been a lack of proportionality and of a fair balance between competing interests, such as the requirement to submit to undesired medical treatment, the adverse effects of the Government ’ s measures on childbirths outside hospital and the Government ’ s breach of their obligations under international treaties.", "2. The Government", "103. At the outset, the Government informed the Court about recent developments concerning the issues of obstetrics, midwifery and related women ’ s rights. They stated that in 2014 a new governmental expert committee had been set up involving experts from various relevant fields, including representatives of care recipients, midwives ’ associations, physicians ’ associations, the Ministry of Health, public health-insurance companies and lawyers. The committee focused on the complex situation in the Czech obstetric and midwife-based system of care, including issues relating to respect for women ’ s rights and wishes, such as the right to choose from among various circumstances in which to give birth. It was intended to serve as an expert body with the possibility of issuing recommendations, including of a legislative nature, to the Government through the Governmental Council for Equal Opportunities for Women and Men.", "104. The Government further stated that in 2015 the Czech Gynaecological and Obstetrical Society had issued an official statement in which it had identified the leading principles in obstetric care in the Czech Republic: the provision of such care by both physicians and midwives in adequately equipped premises only and in close proximity to a higher level of health care; close cooperation between physicians and midwives in the area of obstetric care; a common practice of midwife-led deliveries in cases of physiological pregnancies; the provision of care according to regularly updated guidelines reflecting current scientific and international trends; and adherence to the rights of patients to respectful care, privacy and autonomy.", "105. They also referred to several scientific papers which had been published in the American Journal of Obstetrics and Gynecology since 2013, based on new research on the safety of birth in relation to various birth settings and birth attendants. According to the research findings, home births were strongly associated with worse outcomes than births in adequately equipped health-care facilities, regardless of the presence of a birth attendant. Therefore, home birth did not meet current standards for patient safety in obstetrics, as it entailed an unnecessary, preventable and irremediable increased risk of harm for pregnant, foetal and neonatal patients.", "(a) Negative or positive obligations", "106. The Government argued that the case should be examined exclusively from the perspective of positive obligations. They observed that the law in force did not prohibit childbearing women from giving birth at their private home, and that no sanctions were imposed by the authorities in such cases. Accordingly, in the Government ’ s view, the core question in the present case was whether the State should broaden the current scope of health care provided to women giving birth in the Czech Republic. The provision of health care in general was an area where regulation was the default, so that the State could guarantee a certain quality and standard for both private and public health care. In order to “allow” the assistance of health professionals at home births, the Government would have to put in place a considerable legislative and administrative framework, in addition to other facilities, including a change to the system of emergency care.", "107. Alternatively, the Government suggested that the Court leave open the question whether the State ’ s positive or negative obligations were at issue, referring in particular to the case of Hristozov and Others v. Bulgaria (nos. 47039/11 and 358/12, ECHR 2012 (extracts)).", "108. Should the Court, however, decide to examine the present case from the perspective of negative obligations, the Government submitted that there had been no interference with the applicants ’ right to respect for their private life: the law in force did not prohibit childbearing women from giving birth at their private homes and the authorities did not punish them for doing so.", "(b) Lawfulness", "109. The Government submitted that the provisions of the Medical Services Act clearly established that the assistance of a health professional at a delivery constituted health care that could be provided only in a health-care facility meeting clearly defined minimum requirements set out in the implementing decree. There were explicit exceptions to the rule that health care must be provided in adequately equipped health-care facilities in places specified in the licence. These exceptions included health care provided in the patient ’ s own social environment (for example, private homes) and emergency health care. The Government emphasised that assistance at a planned delivery did not fall under any of these exceptions. In particular, it did not fall under health care provided in the patient ’ s own social environment as defined in section 10 of the Medical Services Act, since this provision explicitly specified that where health care was provided in the patient ’ s own social environment, only those medical procedures were allowed which were not subject to requirements concerning the technical and material equipment necessary for their performance in health-care facilities. However, assistance at delivery was subject to such requirements.", "110. Therefore, the regional authorities could not and would not issue a licence for the provision of health-care services to a midwife in a field entitling her to provide such services at home births. Without a licence, a health-care provider was not allowed to provide health-care services.", "111. The Government further submitted that the relevant legal framework ensured legal certainty and foreseeability as it laid down unambiguous and precise requirements that had to be fulfilled when assisting at any planned delivery, regardless of whether such assistance was provided by a midwife or a doctor. Contrary to the Hungarian law which had been criticised by the Court for its lack of foreseeability in the case of Ternovszky v. Hungary (no. 67545/09, 14 December 2010), the Czech legislation provided that health professionals, including midwives, could assist at deliveries only in adequately equipped premises with clearly defined requirements that had to be fulfilled for the provision of such health care.", "(c) Legitimate aim", "112. The Government argued that the policy in issue was designed to protect the health and safety of the newborn child during and after delivery and, at least indirectly, that of the mother. These interests echoed the general legitimate aims of the protection of health and the protection of the rights of others.", "(d) Necessity in a democratic society", "113. The Government emphasised that, in order to safeguard the public interest in the protection of health and life, one of the primary tasks of the State was to ensure and maintain a certain standard and quality of health care, regardless of whether it was provided on a public or private basis. The State should not therefore be forced to allow a form of health care which they did not consider safe.", "114. The Government further observed that the applicable domestic legislation aimed to ensure that health care was provided in “safe places of delivery” – that is, in adequately equipped premises close to a higher level of health care – in order to minimise the risks to the health and life of the newborn or that of the mother when sudden complications occurred. Lowering these medical standards could increase the risks associated with the provision of health care throughout the childbirth process and decrease the level and quality of such care.", "115. In the Government ’ s submission, tensions between the applicants ’ claims and the obligations under the right to life and health supported the Government ’ s view that the right to respect for private life could not be so extensively interpreted as to require the State to put in place a framework allowing for the provision of health care during home birth when the authorities, in cooperation with experts in the fields of obstetrics and midwifery, had determined that the most suitable State policy, reflecting the strong above-mentioned public interest, was to provide free, accessible care for birthing in places with adequate medical equipment and the ability to respond quickly to emergencies. The mere assistance of a midwife at a home birth was insufficient. If sudden complications occurred, the newborn could be the subject of risks which were, however, avoidable. Health professionals, including midwives, could not deal effectively with such complications in private homes, since the premises would not be adequately equipped for that purpose and often were not in close proximity to a higher level of health care. In other words, in cases of planned births in private homes, health care would not be provided in a safe place for delivery.", "116. The Government further submitted that the legislation under review required health professionals to conduct planned deliveries only in adequately equipped premises and in close proximity to a higher level of health care. Such requirements could not be regarded as measures specifically preventing midwives from assisting at home births, but as the minimum necessary standards for providing health care at any planned delivery. The minimum requirements in question were not excessive, effectively serving the aim of minimising the risks of acute complications by detecting them in a timely manner and securing a quick solution.", "117. Referring to several examples of good practice, the Government further disagreed with the Chamber ’ s conclusion that the conditions in most local hospitals were questionable, as far as respecting the choices of mothers was concerned. They argued that due weight had been given to the privacy interests involved and that the Czech birth policy had been crafted in an effort to ensure an appropriate balance, taking into account the interests of both the child and the mother. They observed that there was a clear and proven trend in Czech maternity hospitals towards fulfilling childbearing women ’ s rights, including the right to choose from among a wide range of circumstances in which to give birth.", "118. The Government drew the Court ’ s attention to the 2013 European Perinatal Health Report, according to which the Czech Republic had the lowest foetal mortality rate and also, together with Iceland and Cyprus, the lowest early neonatal mortality rate in Europe (see paragraph 29 above). They noted that those objectively exceptional results were primarily caused by the sophisticated system of high-level obstetric care and the legislation in force, ensuring that such health care (namely assistance with deliveries) could only be provided in adequately equipped premises. The Government underlined in this connection that such care was available free of charge to all childbearing women.", "119. Overall, the Government expressed their strong conviction that on account of the very nature of the issue at stake, involving complex matters of health-care policy, including expert and scientific considerations and other general economic policy considerations, the State had a broad margin of appreciation, which it had not overstepped in this case.", "120. In addition, the Government disputed the third-party observations of certain interveners. In respect of those submitted by the Public Defender of Rights, the Government maintained that they did not represent a reliable source of information for the purposes of the present case, having regard, in particular, to the fact that they referred to a few sparse complaints of alleged mistreatment of women in Czech maternity hospitals – representing a negligible fraction of all instances of childbirth taking place in the country – which the Public Defender herself had not yet fully examined and determined.", "121. They also disputed part of the information included in the observations of the Czech Union of Midwives ( Unie porodních asistentek – UNIPA).", "122. Finally, regarding the Royal College of Midwives, which advocated a system like the one existing in the United Kingdom, the Government stated that there were several cultures and health-care systems with considerable differences in Europe, some of which showed more satisfactory results than the United Kingdom. In the Government ’ s submission, the third-party intervener had omitted to mention that the Czech Republic had one of the lowest perinatal mortality rates in Europe and that the corresponding results in the United Kingdom were far worse. The British health-care system did not lead to better objective results. It was the Government ’ s view that the Court should not rule on the various practical arrangements available for the organisation of health-care systems.", "3. Third-party observations", "(a) The Government of the Republic of Croatia", "123. The Croatian Government noted that their country had similar legislative arrangements regarding home birth to those in force in the Czech Republic.", "124. In their submission, planned home delivery, in the light of all the scientific findings known to them, still represented a less safe option compared to full hospital delivery. They note that the Commission for Perinatal Medicine of the Ministry of Health of the Republic of Croatia is of the view that the hospitals are the safest venues for performing deliveries, giving both to a mother and a new-born the best guarantees for the preservation of their health and life. As such, the question whether the State should allow its medical staff to participate in such deliveries fell within its own margin of appreciation, meaning that each Contracting Party should be absolutely free to decide on its own, on the basis of its own assessment of numerous factors which needed to be considered, whether to provide this alternative to its citizens or not. The Croatian Government asserted that the Contracting Parties should not be compelled to make provision for home delivery, and that the spirit of the Convention did not require that legislative measures or practices to that effect should be implemented in every Contracting Party. That, however, did not mean that a Contracting Party should entirely disregard the fact that a substantial number of women did not feel comfortable in a hospital environment, and that certain adverse effects in relation to delivery could be linked to that particular feeling of discomfort and fear.", "125. However, the Croatian Government did not think that the solution to this problem lay in making compulsory provision for assisted home delivery. A compromise could be found in the implementation of measures aimed at providing a higher level of hospital comfort. Ensuring a home-like hospital environment, the possibility of the partner or close relatives being present during the delivery, rooming-in, respect for pregnant women ’ s wishes prior to and during labour as regards the choice of available medical procedures, and alternative positions for women during labour were all possible ways of providing the best of both worlds.", "126. The Croatian Government submitted that respect for women ’ s wishes regarding the above-mentioned aspects, in the context of Article 8 of the Convention, undoubtedly fell well within the ambit of the Convention; assisted home births, however, did not.", "(b) The Government of the Slovak Republic", "127. The Slovak Government fully supported the Chamber ’ s finding of no violation of Article 8 of the Convention in the present case. At the same time, they submitted that it would be more appropriate to examine the case from the perspective of the State ’ s positive rather than negative obligations.", "128. Referring to Article 12 of the International Covenant on Economic, Social and Cultural Rights, Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, Article 24 of the Convention on the Rights of the Child and paragraphs 15, 90 and 94 of General Comment no. 15 (2013) on the latter Convention, the Slovak Government observed that States had a strong positive obligation to regulate and organise their system for the provision of health care in relation to births. This included the provision of adequate education for all health-care providers and other persons involved, supervision and enforcement of compliance with existing medical, material and human rights and other relevant standards and, within this context, the operation of a system for continuous monitoring and review of those standards. The aim should nonetheless be to ensure the protection and enjoyment of the right to life and health of the woman, as well as the child.", "129. The Slovak Government were aware both of the State ’ s positive obligation to protect the life and health of the child and to provide the child with the highest attainable standard of health care, and of the associated responsibilities. In their view, it might not be possible to fulfil that obligation in the case of home births. Under the Slovakian legal regulations, health-care providers were obliged to have access to the material and technical equipment laid down in the relevant rules. Qualified midwives were entitled to assist individually in health-care institutions only in the case of a physiological delivery during which an episiotomy was required. Home births brought about risks for the mother and child which were not offset by the basic facilities available at home.", "130. The Slovak Government noted that since the rate of births outside health-care institutions in the Slovak Republic amounted to 0.36% (198 births) according to the most recent data (from 2013), it was not possible to make a statistical assessment of the degree of safety of this mode of delivery. Statistics from western European countries where home birth was allowed showed that a significant proportion of such births required transport to hospital – for example, in Germany in 2013, up to 11.3% of home births had required a transfer to hospital during delivery and in 0.1% of cases the baby had been born during the transfer.", "131. Moreover, most births did not proceed according to plan, and there could be unforeseeable circumstances and the possibility of an acute threat to the mother and baby ’ s health and life. It was impossible to foresee whether a pregnancy would end with a physiological birth or would require rapid intervention or emergency surgery. Birth was in all cases a dynamic process which could become complicated at any stage, with a direct threat to the life of the foetus and obviously the woman in labour. None of these complications could be resolved at home, as was attested by births with lasting consequences, either for the child or for the mother. Problems such as acute hypoxia for the child, or embolism or bleeding for the mother, could not be handled outside health-care institutions. A further trend that had been overlooked was the constantly increasing age of mothers and the complications associated with this. According to statistics issued by the National Centre for Health Information, in the Slovak Republic in 2013 6,292 newborns had required health care in specialist neonatal institutions; in other words, approximately one in every eight to nine newborn children had required specialist intensive health care.", "132. Regarding the State ’ s wide margin of appreciation in the present field, the Slovak Government acknowledged that a humanised approach was preferable during birth and in the event of any changes in the circumstances of a birth, but emphasised that this was only possible in health-care institutions. It was inevitable to stress the need for protection of children ’ s rights, their chance to live and their right to health, all of which were diminished during birth outside a health-care institution. The majority of women opting for delivery in a domestic environment referred to the need for intimacy, the opportunity to select the method and position of delivery and to decline particular types of medical intervention during childbirth, the need for the presence of a person close to them, and the importance of not being separated from the child. The Slovak Government noted in this connection that the United Nations Committee for the Rights of the Child required States to support the Mother and Baby Friendly Hospital Initiative (MBFHI), whereby the WHO and UNICEF had set down the criteria for maternity and neonatal units of health-care institutions. While cooperating with the above-mentioned organisations, the Slovak Republic had since 1996 implemented quality projects for perinatal care, including support for physiological birth, a behavioural approach to nursing for newborns and mothers, support for breastfeeding, and emphasis on the inseparability of the mother/child bond. Each health-care provider should be responsible for ensuring the highest standard of humanisation of birth. Some providers had rebuilt health-care institutions in order to offer alternative methods of giving birth, for example the vertical birth position or water birth; to tailor birth arrangements to the mother ’ s request; and to provide separate rooms allowing the husband or other family members to be present during the birth and throughout the stay in the institution. Immediate contact between the mother and the newborn after delivery should be ensured in each delivery room and was a precondition for the MBFHI. From the point of view of breastfeeding support, the MBFHI was considered in the European Union to constitute a model of best practice as regards care for the mother and the newborn after delivery. Among other things, it required the newborn child, once dried, to be placed on the mother ’ s body within half an hour after delivery, and the newborn and mother to be given the opportunity to be together for breastfeeding “upon request”.", "133. The Slovak Government submitted that this approach to births, which was similar to that adopted in the Czech Republic, was in line with the idea of respect and active support for women ’ s rights in connection with births. At the same time, they fully acknowledged the rights of the child deriving from international instruments, with a view to striking a balance between the interests of the mother and her child and the interest of society in preserving their health and well-being.", "(c) The Royal College of Midwives", "134. The Royal College of Midwives stated that it was the United Kingdom ’ s only professional organisation and trade union led by midwives for midwives. Its objects were to promote and advance the art and science of midwifery and to promote the effectiveness and protect the interests of its members.", "135. It had maintained a consistent position on the safety of home birth, which it considered a safe choice for women with uncomplicated pregnancies.", "136. Under the current government policy, all hospitals in the United Kingdom were expected to make home birth an option, and women were entitled to self-refer to home birth services in their area. In interpreting the common law, the national courts had shifted their approach to clinical negligence to emphasise that women were responsible for making decisions about the maternity care that they received. The national midwifery regulator, the Nursing and Midwifery Council, had recognised that women could not be forced to give birth in hospital against their wishes. It had therefore been accepted that midwives had a professional duty of care to attend women who were giving birth outside hospital.", "137. Home births were not expressly regulated by national law: midwives ’ capacity to provide care to women at home was an implied part of their general competence and any care they provided, regardless of the setting in which they provided it, was subject to scrutiny by the professional regulator and the general law. Rules governing the specific practicalities of home births were laid down by the appropriate regulatory body and the midwife ’ s employer.", "138. The Royal College of Midwives submitted that the following consequences arose from prohibiting midwifery assistance at home birth: (i) giving birth at home without any trained assistance would give rise to risks for the health of women and babies should complications occur; (ii) as there was no regulation of the qualifications and competence of home birth attendants, women might be assisted by an untrained birth attendant who was not subject to any regulatory control; (iii) there would be a disincentive to transfer to hospital if complications arose during birth because the midwife or other attendant might be reported to the authorities; (iv) transfer to hospital in an emergency would be hindered by lack of proper referral procedures and record-keeping and the hospital would have no record of the woman ’ s obstetric history, the progress of labour or the nature of any complication; and (v) giving birth at home would become stigmatised and hospital staff would often treat women who transferred from home with suspicion and disrespect and might delay urgent care.", "(d) The International Study Group of the World Association of Perinatal Medicine", "139. The World Association of Perinatal Medicine and the International Academy of Perinatal Medicine included in their membership scientific and clinical leaders in the medical care of pregnant women, foetal and neonatal patients. The International Study Group had begun its scientific work on planned home birth in 2013.", "140. It stated that according to the results of its studies, planned home birth involved unnecessary, preventable increased risks to the newborn and the mother. A pregnant woman who continued her pregnancy to term freely assumed ethical obligations towards her foetus and soon-to-be-born child to select a site for delivery that was not unnecessarily risky. Her autonomy was therefore justifiably constrained by such ethical obligations.", "141. In respect of the finding set out in the joint statement by the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives to the effect that planned home birth was a “safe option for many women”, the third-party intervener argued that this conclusion did not withstand close scrutiny for planned home birth without immediate access to hospital-based care. Such settings were unavoidably at risk for transport to hospital. Moreover, the perinatal mortality rate had been reported to be more than eight times higher when transport from home to an obstetric unit had been used. The unavoidable delay involved in even the best transport systems from home to hospital and even from labour and delivery to the operating room resulted in increased risks of mortality and morbidity for both the newborn and the mother.", "142. The International Study Group mentioned the long tradition in the Netherlands of optimally organised home birth, with well-trained midwives and a transport system with short distances to hospitals. Nonetheless, 49% of primiparous and 17% of multiparous women were transported during labour. The most frequent indications were the need for pain relief and prolonged labour.", "143. Planned home birth often did not satisfy its raison d ’ être, namely improved patient satisfaction. Professional responsibility required hospital physicians and midwives to take measures to improve patient satisfaction, by creating home birth-like environments that were appropriately staffed not only to ensure patient safety, which was the paramount professional responsibility, but also to ensure patient satisfaction. A pregnant woman did indeed have the right to decide and control what happened to her body during pregnancy and delivery. However, a more clinically appropriate view was that the physician or midwife had an independent obligation, as a matter of professional integrity, to protect pregnant, foetal and neonatal patients. Their role was to identify and present medically reasonable alternatives for the management of pregnancy, in other words clinical management for which there was an evidence base of net clinical benefit.", "144. The patient had the right to select from among the medically reasonable alternatives. If she rejected them all and also remained a patient, then her refusal was not a simple exercise of a negative right to non-interference. Her refusal was more complex, being coupled with a positive right to the services of clinicians and the resources of health-care organisations and society. Insistence on implementing the unconstrained rights of pregnant women to control the birth location was an ethical error and therefore had no place in professional perinatal medicine.", "145. In conclusion, planned home birth was not consistent with professional integrity because its increased risks were preventable by planned hospital birth. Pregnant women did not have absolute freedom to control the place of assisted birth because they had an ethical obligation towards the soon-to-be-born child to protect the child ’ s health-related interests. This obligation could not be fulfilled by planned home birth but could be fulfilled by planned hospital birth. The precautionary principle justified reducing risks for the vulnerable when the burdens of doing so were minimal. Planned hospital birth protected foetal and neonatal patients from the risks of planned home birth, from which risks they could not protect themselves. The burdens on pregnant women of planned hospital birth were minimal. Planned home birth was therefore not compatible with the precautionary principle.", "(e) The Czech Union of Midwives ( Unie porodních asistentek – UNIPA)", "146. UNIPA stated that it was a professional organisation associating independent midwives.", "147. At the outset, it described the professional organisations for midwives in the Czech Republic. Apart from UNIPA, which united midwives and midwifery university students across the Czech Republic, there was the Czech Confederation of Midwives ( Česká konfederace porodních asistentek – ČKPA), which grouped midwives into particular clusters according to region. These two organisations cooperated closely in order to develop and promote midwifery in the Czech Republic as a viable model of maternity health care. There was also the Czech Association of Midwives ( Česká společnost porodních asistentek – ČSPA), an organisation that had been established in 2014 and brought together other medical and paramedical professionals.", "148. UNIPA submitted that the provision of midwife-based care had been expressly banned by law in relation to home births and that such care was also banned at midwives ’ offices and in birth centres owing to the excessive technical requirements imposed by secondary legislation. As a result of the State ’ s approach and hospitals ’ practice, midwives could not legally assist at childbirth outside hospitals. Moreover, as the State allowed only for the obstetric model of care, a midwife wishing to provide assistance at childbirth had to do so in a hospital in accordance with that model, subject to obstetric rules, with the need for prior instructions from a physician and under supervision. In such cases, the midwife also needed to be in an employment relationship with the hospital. Such a set-up inherently prevented midwives from providing midwife-based care and performing the statutory duties of a midwife.", "149. UNIPA observed that out of 6,000 qualified and licensed midwives in the country, none had been awarded a technical licence authorising them to perform the full range of a midwife ’ s duties, including assistance at childbirth. Consequently, no midwives had been licensed by the State to carry out childbirth-related duties independently and without prior instructions from a physician. In addition, although from a purely legal and technical standpoint the existence of birth centres was not currently restricted, the extensive requirements in terms of technical, material and human resources effectively eliminated this option. There had in fact been one attempt to register a birth centre in Brno, but although it had been intended to be located in close proximity to a local hospital, the response of the relevant public authority had been negative.", "150. Owing to the monopoly enjoyed by physicians in the field of maternity health care, the health-care system entirely failed to distinguish between primary and secondary care for mother and child. The failure to distinguish between these levels of care necessarily led to the provision of a standardised form of care for all mothers, without reflecting their particular different needs. As a result, the system failed to distinguish between spontaneous low-risk mothers whose deliveries were reasonably anticipated to be free of complications, and mothers whose pregnancies indicated the existence of pathological conditions.", "151. UNIPA next drew the Court ’ s attention to the absence of any national professional standards of care in midwifery, a fact that, in particular, exposed midwives to higher risks in terms of their professional liability, in both civil and criminal matters. Referring to two examples of criminal proceedings against midwives, it maintained that although they had been found innocent, their reputation, as well as that of midwifery, had suffered irreparable damage.", "152. The third-party intervener lastly contended that no viable statistical data had been collected by the State as regards practices in specific hospitals and births outside medical facilities. In the intervener ’ s opinion, this limited the choice available for prospective mothers as regards the place of childbirth. Moreover, there were no comprehensive methods for informing prospective mothers about the health care provided by public authorities in connection with childbirth. Women were therefore not aware of their various options during pregnancy and childbirth. Such information was only accessible in pre-childbirth courses that were subject to a fee.", "(f) The Public Defender of Rights ( Veřejná ochránkyně práv )", "153. The Public Defender of Rights (Ombudsman) stated that her role was mainly to protect persons from conduct that was either unlawful or in any way improper, and from inactivity on the part of the authorities and other public bodies (in other words, to scrutinise and inspect public administration). At the same time, the Public Defender acted as the national equality body (the national body for equal treatment and protection from discrimination) by virtue of the relevant European Union directives (no. 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and no. 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation). The Public Defender also conducted systematic visits of places where persons were restricted in their freedoms (by virtue of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and monitored forced returns or expulsions of aliens under Directive no. 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.", "154. The Public Defender submitted to the Court an overview of cases referred to her, without providing any statistical data.", "155. The first category of complaints concerned procedures during labour and childbirth in a medical facility, which the women in question had described as lacking in dignity and privacy. More specifically, some women had complained of certain types of intervention being performed without their consent, the obligation to pay a fee for the presence of their own doula, overcrowding in the delivery room and failure to respect their wishes regarding the opportunity to eat and drink, to move around or to opt for specific birthing positions either on or off the bed. Certain complaints also concerned the continuous monitoring of the unborn child, the mother ’ s separation from the child immediately after the birth or in the forty-eight hours following the birth, and the failure to comply with a birth plan submitted by the mother.", "156. The second category of complaints examined by the Public Defender concerned the impossibility of delivery outside a medical facility with professional assistance, and the ambiguity of the legal regulations governing home births.", "157. The first complaint on that account had been received by the Public Defender in 2003. The woman concerned had complained that it was impossible to deliver a baby outside a medical facility with the assistance of a midwife and that the midwife ’ s services were not reimbursed by the public health-insurance fund. The outcome of that complaint was not stated. The Public Defender noted that even though Czech law did not expressly prohibit delivery outside a medical facility, this possibility was virtually excluded by Decree no. 92/2012 of the Ministry of Health. She emphasised that the legal requirements for minimum equipment in medical facilities and home-care centres could not, in principle, be complied with in a home-delivery environment or in any other environment. She observed that delivery rooms meeting the conditions set out by the legislation were thus located exclusively in health-care facilities. The Public Defender pointed out in this connection that some mothers-to-be would have found it sufficient if the delivery in the medical facility had been performed by their “own” midwife. However, the medical facilities only allowed deliveries to be performed by midwives with whom they had concluded an agreement, and such agreements often proved impossible to obtain.", "158. The third category of complaints to the Public Defender concerned administrative difficulties faced by the parents of a child born outside a health-care facility. In many cases it had been difficult to obtain a birth certificate or parental allowance.", "159. Lastly, the Public Defender noted that there had been some complaints from midwives concerning the legal regulations which in practice had made it impossible to assist with and conduct a delivery outside a medical facility.", "C. The Court ’ s assessment", "1. Applicability of Article 8 of the Convention", "160. In the instant case the applicants formulated their complaint under Article 8 of the Convention and the Government did not dispute the applicability of that provision in the proceedings before the Grand Chamber.", "161. The Court notes that the applicants sought to be assisted by a midwife during a home birth. The issue arising in the present case is therefore whether the right to determine the circumstances in which to give birth falls within the scope of Article 8 (see also paragraph 74 of the Chamber judgment).", "162. The Grand Chamber confirms that the concept of “private life” is a broad one (see paragraph 73 of the Chamber judgment). It reiterates in this connection that in the case of Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003-III) the Court held that “birth, and in particular the circumstances in which a child is born, forms part of a child ’ s, and subsequently the adult ’ s, private life guaranteed by Article 8 of the Convention”. Moreover, in the case of Ternovszky, cited above, § 22, it held that “ the circumstances of giving birth incontestably form part of one ’ s private life for the purposes of this provision”.", "163. The Court finds that while Article 8 cannot be interpreted as conferring a right to give birth at home as such, the fact that it is impossible in practice for women to be assisted when giving birth in their private home comes within the scope of their right to respect for their private life and accordingly of Article 8. Indeed, giving birth is a unique and delicate moment in a woman ’ s life. It encompasses issues of physical and moral integrity, medical care, reproductive health and the protection of health-related information. These issues, including the choice of the place of birth, are therefore fundamentally linked to the woman ’ s private life and fall within the scope of that concept for the purposes of Article 8 of the Convention.", "2. Whether the case should be examined from the standpoint of the State ’ s negative or positive obligations", "164. The parties disagree on whether the case should be examined in terms of an interference with the applicants ’ rights under Article 8 of the Convention or from the angle of positive obligations on the State to protect the applicants ’ rights. The central issue in this case may indeed be seen as either a curtailment of the applicants ’ right to choose the circumstances of giving birth, to be analysed as an interference with their right to respect for their private life, or as a failure on the part of the State to provide an appropriate regulatory framework securing the rights of persons in the applicants ’ situation, to be analysed in terms of the State ’ s positive duty to ensure respect for their private life (see, mutatis mutandis, Hristozov and Others, cited above, § 117 ).", "165. Having regard to the nature and content of the applicants ’ complaints, the Grand Chamber considers it appropriate, as the Chamber did, to approach the present case as one involving an interference with the applicants ’ right to avail themselves of the assistance of midwives when giving birth at home, owing to the threat of sanctions for midwives, who in practice were prevented from assisting the applicants by the operation of the law. In any event, as the Court has already held, the applicable principles regarding justification under Article 8 § 2 are broadly similar regardless of analytical approaches adopted (see S.H. and Others v. Austria [GC], no. 57813/00, § 88, ECHR 2011, with further references).", "166. To determine whether this interference entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that Article, that is, whether the interference was “in accordance with the law” and “necessary in a democratic society” for the pursuit of one of the “legitimate aims” specified in Article 8.", "3. Was the interference “in accordance with the law”?", "167. The Court reiterates that an impugned interference must have some basis in domestic law, which law must be adequately accessible and be formulated with sufficient precision to enable the citizen to regulate his or her conduct, he or she being able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see A, B and C v. Ireland, cited above, § 220, with further references).", "168. In the present case it was undisputed between the parties that the domestic legal provisions providing the legal basis for the impugned interference were accessible to the applicants. The Court sees no reason to disagree with the parties on this.", "169. In respect of their foreseeability, the Court first notes that giving birth at home is not as such prohibited by the Czech legal system. It further observes that the Health Care in Private Health-Care Institutions Act, which was in force when Ms Dubská gave birth to her second child in April 2011, regulated private health-care institutions and provided for sanctions for any such health-care providers who breached the Act, while not specifying the amount of the fine which could be imposed. The Act empowered the Ministry of Health to lay down technical and material requirements for equipment in health-care institutions. This was done by means of Decree no. 221/2010, which entered into force on 1 September 2010 and set out detailed conditions to be complied with in order to practise the profession of midwife independently, identifying, inter alia, three possible categories of workplaces for midwives: workplaces where delivery was not allowed, workplaces where delivery was allowed, and contact workplaces which had to be equipped with the furniture appropriate for a midwife and a mobile phone. The decree also defined the content of a midwife ’ s bag (see paragraphs 43-46 above). At the same time, the Paramedical Professions Act, which was in force at the time of both applicants ’ deliveries and is still in force, laid down the requirements for the independent practice of the profession of midwife, empowering the Ministry of Health to define the activities of midwives. This was done by means of Decree no. 424/2004, later superseded by Decree no. 55/2011, both of which stated that midwives could carry out activities on their own, such as performing physiological deliveries, including episiotomy if needed.", "170. The Medical Services Act entered into force shortly before Ms Krejzová gave birth to her third child in May 2012. It repealed both the Health Care in Private Health-Care Institutions Act and Decree no. 221/2010. It specified that a person could provide health-care services only if in possession of the appropriate licence, except in special situations. The health-care institutions referred to in the licence had to be adequately equipped in respect of the services provided, as specified in a decree to be issued by the Ministry of Health. A person who provided health care otherwise than in accordance with the Act could be fined for breaching the Act which also defined a number of concrete sanctions. The essential equipment which had to be available to midwives in the places where they were to assist with deliveries was described in detail in Decree no. 92/2012, which indicated, inter alia, three different categories of workplaces for midwives, namely: workplaces where delivery was not allowed, workplaces where delivery was allowed, and contact workplaces for nursing care relating to gynaecology and childbirth (see also paragraph 82 of the Chamber judgment).", "171. The Court accepts that while there might have been doubts about the clarity of certain legislative provisions in force at the relevant time, the applicants were nevertheless able – if need be with appropriate advice – to foresee to a degree that was reasonable in the circumstances that their private homes were unable to satisfy the requirements relating to the equipment listed successively in both the above-mentioned instruments of secondary legislation and that, as a consequence, the provisions in question did not permit a health professional to assist with a planned home birth.", "Consequently, the impugned interference was in accordance with the law.", "4. Did the interference pursue a legitimate aim?", "172. The Court considers, contrary to the applicants, that there are no grounds for doubting that the Czech State ’ s policy of encouraging hospital births, as reflected in the relevant national legislation, was designed to protect the health and safety of the mother and the child during and after delivery.", "173. It may accordingly be said that the interference in the present case served the legitimate aim of the protection of health and of the rights of others within the meaning of Article 8 § 2 of the Convention.", "5. Was the interference necessary in a democratic society?", "174. An interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, mutatis mutandis, Fernández Martinez v. Spain [GC], no. 56030/07, § 124, ECHR 2014 (extracts) ).", "175. In this connection, the Court reiterates the fundamentally subsidiary role of the Convention system and recognises that the national authorities have direct democratic legitimation in so far as the protection of human rights is concerned. Moreover, by reason of their direct and continuous contact with the vital forces of their countries, they are in principle better placed than an international court to evaluate local needs and conditions (see, e.g., Maurice v. France [GC], no. 11810/03, § 117, with further references, ECHR 2005-IX ).", "176. It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals ’ rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests (see Odièvre, cited above, § 49; Van Der Heijden v. the Netherlands [GC], no. 42857/05, § 56, 3 April 2012).", "177. While it is for the national authorities to make the initial assessment, the final evaluation as to whether an interference in a particular case is “necessary”, as that term is to be understood within the meaning of Article 8 of the Convention, remains subject to review by the Court (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008; Van Der Heijden, cited above, § 57).", "178. A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case. The margin will tend to be relatively narrow where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will also be restricted. Where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Van der Heijden, cited above, §§ 55-60 with further references, and also Parrillo v. Italy [GC], no. 46470/11, § 169, with further references, ECHR 2015).", "179. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52 with further references, ECHR 2006-VI; Shelley v. the United Kingdom (dec.), no. 23800/06; 4 January 2008; and Hristozov, cited above, § 119).", "180. In the case at hand, the Court has to establish whether the fact that it was impossible in practice for the applicants to be assisted by a health professional during a home birth struck a fair balance between, on the one hand, the applicants ’ right to respect for their private life under Article 8 and, on the other, the interest of the State in protecting the health and safety of the child during and after delivery and that of the mother (see paragraph 174 above): in other words, whether or not the respondent State, by introducing legislation that did not allow in practice for such assistance, overstepped the margin of appreciation afforded to it.", "181. The Government maintained that the State ’ s margin of appreciation in the present case was wide. The applicants argued that a penalising approach to home births might affect women ’ s right to life and health and that, by making home birth less safe for women, the State might be putting these rights at risk. Moreover, according to the applicants, the right of women to decide on the circumstances in which to give birth, as a mechanism compensating for their limited freedom of self-determination at that moment, did not in principle allow for any further limitations, on account of the Government ’ s margin of appreciation, which was necessarily narrow in this area. The applicants further maintained that there was a consensus among member States in respect of home births, which was supported by international expert opinion on the issues of maternal health and the importance of skilled attendants at birth. The existence of this European consensus should, in their view, lead to the Government ’ s margin of appreciation being narrowed.", "182. While the question of home birth does not as such raise acutely sensitive moral and ethical issues (see, by contrast, A, B and C v. Ireland, cited above), it can be said to touch upon an important public interest in the area of public health. Moreover, the responsibility of the State in this field necessarily implies a broader boundary for the State ’ s power to lay down rules for the functioning of the health-care system, incorporating both State and private health-care institutions. In this context the Court notes that the present case involves a complex matter of health-care policy requiring an assessment by the national authorities of expert and scientific data concerning the risks of hospital and home births. In addition, general social and economic policy considerations come into play, including the allocation of financial means, since budgetary resources may need to be shifted from the general system of maternity hospitals to the provision of a framework for home births (see, mutatis mutandis, Maurice, cited above, § 84, with further references, and Stec and Others, cited above, § 52).", "183. Moreover, contrary to the applicants ’ submissions, the Court finds that among the member States of the Council of Europe there is no consensus capable of narrowing the State ’ s margin of appreciation, in favour of allowing home births. In particular, the Court notes that planned home births are provided for in domestic law and regulated in twenty member States, but the right to choose this mode of delivery is never absolute and is always dependent on certain medical conditions being satisfied. In addition, national health insurance covers home birth in only fifteen of these countries. The Court further notes that home births are unregulated or under-regulated in twenty-three other countries. In some of these countries private home births do take place, but in a legal vacuum and without national health cover. Moreover, no legislation has been found which explicitly prohibits the assistance of midwives at home births. In a very small number of the member States surveyed, disciplinary or criminal sanctions are possible, but appear to be rarely imposed.", "184. In the light of these considerations, the Court takes the view that the margin of appreciation to be afforded to the national authorities in the present case must be a wide one, while not being unlimited. The Court must indeed supervise whether, having regard to that margin of appreciation, the interference constitutes a proportionate balancing of the competing interests involved (see A, B and C v. Ireland, cited above, § 238, with a further reference). In cases arising from individual applications the Court ’ s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see S.H. and Others v. Austria, cited above, §§ 91-92, with further references). Consequently, the Court ’ s task is not to substitute its own view for that of the competent national authorities in determining the most appropriate policy for regulating matters regarding the circumstances of giving birth. Instead, it must decide on the compatibility with Article 8 of the State ’ s interference in the present case on the basis of the fair-balance test described above.", "185. The applicants in the present case both expressed their wish to give birth in their private home with the assistance of a midwife. The Court accepts that as a consequence of the operation of the legislative provisions in force at the relevant time, they were put in a situation which had a serious impact on their freedom of choice: they were required, if they wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that this posed to themselves and their newborns, or to give birth at hospital (see also paragraphs 93 and 95 of the Chamber judgment). The Court notes in this connection that while there is generally no conflict of interest between the mother and her child, certain choices made by the mother as to the place, circumstances or method of delivery may be seen to give rise to an increased risk to the health and safety of newborns, whose mortality rate, as shown in figures for perinatal and neonatal deaths, is not negligible, despite all the advances in medical care (see also paragraph 94 of the Chamber judgment).", "186. In this respect, the Court notes the Government ’ s argument, supported by the Government of the Republic of Croatia and the Government of the Slovak Republic, that the risk for mothers and newborns (see paragraphs 124 and 131 above) is higher in the case of home births than in the case of births in maternity hospitals which are fully staffed and adequately equipped from a technical and material perspective, and that even if a pregnancy proceeds without any complications and can therefore be considered a “low-risk” pregnancy, unexpected difficulties can arise during the delivery which would require immediate specialist medical intervention, such as a Caesarean section or special neonatal assistance. Moreover, a maternity hospital can provide all the necessary urgent medical care, whereas this would not be possible in the case of a home birth, even with a midwife attending (see also paragraph 97 of the Chamber judgment). It is to be noted in this connection that the Czech Republic has not set up a system of specialist emergency assistance for cases of home births. Contrary to the applicants ’ argument (see paragraph 79 above), the lack of such a system would be likely to increase the potential risks for women giving birth at home and their babies.", "187. It also transpires from the material before the Court that in States where home births are allowed, certain preconditions must be fulfilled: the pregnancy must be “low risk”, a qualified midwife must be present at the birth to detect any complications and transfer the woman in labour to hospital if necessary, and such a transfer must be secured in a very short period of time (see also paragraph 96 of the Chamber judgment). Accordingly, as the applicants contended, a home birth without the assistance of medical professionals may increase the risk to the life and health of both the mother and the newborn child.", "188. The Court notes that the applicants could have opted, as the Government also indicated, to give birth in one of the local maternity hospitals, where their wishes would in principle have been satisfied. However, according to the applicants ’ submissions based on their own experience (see paragraphs 9 and 23 above), in a number of those hospitals the conditions in which pregnant women are admitted and provided with medical treatment and medication would appear to be questionable, and in several local hospitals the wishes of mothers-to-be do not seem to be fully respected (see also paragraph 95 of the Chamber judgment). These remarks would seem to be confirmed in substance by the Committee on the Elimination of Discrimination against Women, in its Concluding Observations on the Czech Republic issued on 22 October 2010, which expressed concern regarding the conditions for child birth and obstetric services in the Czech Republic and made a number of recommendations to the Government in this area (see paragraph 65 above; and also paragraphs 56 and 95 of the Chamber judgment).", "189. In the Court ’ s opinion, these concerns cannot be disregarded when assessing whether the authorities struck a fair balance between the competing interests. At the same time, the Court acknowledges that since 2014 the Government have taken some initiatives with a view to improving the situation, notably by establishing a new governmental expert committee on the issue of obstetrics, midwifery, and related women ’ s rights. The Court also takes note of the recent statement the Czech Gynaecological and Obstetrical Society, issued in August 2015 (see paragraphs 103-104 above). Against this background, the Court finds it appropriate to invite the Czech authorities to make further progress by keeping the relevant legal provisions under constant review, so as to ensure that they reflect medical and scientific developments whilst fully respecting women ’ s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country.", "190. In conclusion, having regard to the State ’ s margin of appreciation (see paragraph 184 above), the Court is of the view that the interference with the applicants ’ right to respect for their private life was not disproportionate.", "191. Accordingly, there has been no violation of Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1976 and lives in Zagreb.", "6. She gave birth to her first three children in hospital. In 2011 she became pregnant with her fourth child and had a due date in February 2012.", "7. In November 2011 she sent a letter to the Croatian Chamber of Midwives ( Hrvatska Komora Primalja ), enquiring about the possibility of having professional assistance with a home birth. She explained that her first three hospital deliveries had gone normally, without the need for much medical intervention, but that she had not felt fulfilled afterwards. She therefore wanted to give birth to her fourth child at home.", "8. On 1 December 2011 she received a reply that according to the relevant domestic legislation health professionals, including midwives, were unable to assist with home births. In particular, although the Act on Midwifery allowed the setting up of private practices by midwives, the Healthcare Act, as the general Act in the sector, still did not expressly provide for such a possibility. Therefore, since the matter was not clearly regulated, no midwife had set up a private practice or officially assisted with home births. The letter also cited a statement from the Ministry of Health and Social Welfare ( Ministarstvo zdravstva i socijalne skrbi Republike Hrvatske - hereinafter “the Ministry of Health”) issued in August 2011 and published on the Croatian Chamber of Midwives ’ website:", "“Having regard to the current circumstances, where the requirements for organising a system of professionally conducted home births do not exist (education and training of personnel) and where the other accompanying elements (availability of emergency transport and proper admission [ to a medical facility ] in the case of complications) which would enable safe delivery at home are lacking, we are of the opinion that in this area of healthcare the lawmaker has ensured, as far as possible, all the conditions for the care of mothers and the right of children to life and health. Considering the above, we are of the opinion that the protection of children, who do not choose the circumstances of their coming into this world, takes precedence over respect for a woman ’ s right to freely choose to give birth outside a medical facility .”", "The Croatian Chamber of Midwives thus declined to assist with the applicant ’ s planned home birth. It noted that home births nevertheless occurred in Croatia, and for that reason it had urged the Ministry of Health to clearly regulate the matter as soon as possible.", "9. On 15 February 2012 the applicant gave birth to her child at home, assisted by a midwife from abroad.", "10. After the birth a paediatrician and a gynaecologist allegedly declined to examine the applicant and her baby but she eventually managed to find doctors who examined them both.", "11. On 23 February 2012 the applicant registered the birth and obtained a birth certificate.", "II. GENERAL INFORMATION PERTAINING TO HOME BIRTHS IN CROATIA", "A. Statements by the Ministry of Health and the Ministry of Administration", "12. On 11 May 2011 the Ministry of Health sent a letter in reply to an enquiry from the Ombudswoman for Children ( Pravobraniteljica za djecu ), which stated that the relevant domestic law provided that babies were to be delivered in medical facilities. The question of home births had not been regulated by law and medical assistance in such procedures was considered as quackery. It further stated that home births were the personal responsibility of the mother and the person assisting with the delivery. In the event of a delivery outside a medical facility and where a woman claiming to be the mother did not have any medical documentation, the doctor carrying out the first examination of the child was obliged to make note of the absence of such documents. The doctor was not allowed to register data which he or she was not able to verify.", "13. On 25 August 2011 the Ministry of Administration ( Ministarstvo uprave Republike Hrvatske ) sent a letter in reply to an enquiry from the Parents in Action - Roda NGO ( Roditelji u Akciji – Roda ) stating that the law provided for the possibility to register the civil status of a child born outside a medical facility. It further stated that officials were obliged to verify data reported to them before putting anything down in the State register. Consequently, a person reporting the birth of a child born outside a medical facility was required to submit proof that the woman reported as the child ’ s mother had indeed given birth to the child. The medical documentation required for proving such circumstances was a matter for the health administration authorities.", "14. On 31 May 2012 the Ministry of Health replied to an enquiry from Parents in Action – Roda NGO by saying that it had never instructed doctors not to examine children born at home. On the contrary, having regard to the increased frequency of situations in which doctors were faced with having to examine children born at home without any medical documentation, it had consistently held that doctors were obliged to examine such children but were not allowed to register any data that they were not able to verify. It added that home birth was still not regulated by law and that therefore there was no mechanism for registering requests for home birth or regulations on the duty to report them.", "B. Report of action against midwives", "15. On 24 January 2012 the Croatian Chamber of Midwives reported on a case in which, according to the media coverage, a woman who had given birth at home had been separated from her child for two days. In particular, the hospital had called the police and social workers in order to establish that she was indeed the child ’ s mother after she had refused to be examined by a gynaecologist in a hospital. In addition, several midwives suspected of having taken part in the birth had been questioned by the police.", "16. According to information submitted by the Government, no health professional has ever been prosecuted in criminal proceedings or sanctioned for assisting with a home birth.", "III. REPORTS ON HOSPITAL BIRTH PRACTICES IN CROATIA", "17. In the Concluding Observations on the combined fourth and fifth periodic reports on Croatia issued on 24 July 2015, the Committee on the Elimination of Discrimination against Women expressed concern regarding the lack of oversight procedures and mechanisms for ensuring adequate standards of care, the protection of women ’ s rights and their autonomy during deliveries and the lack of options for giving birth outside hospitals.", "18. A survey on maternity practices in Croatia undertaken by the Parents in Action - Roda NGO in March 2015 noted situations of women ’ s wishes being disregarded by medical staff during childbirth, of a lack of consent for procedures conducted during labour, and limits on the presence of an accompanying person during childbirth.", "19. The Gender Equality Ombudsperson ( Pravobraniteljica za ravnopravnost spolova ) issued a research report in 2013 which noted inconsistencies in hospital practices regarding the presence of an accompanying person during childbirth." ]

[ "IV. RELEVANT DOMESTIC LAW", "A. The Constitution", "20. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments ) read as follows:", "Article 57 § 2", "“ Rights concerning childbirth, motherhood and childcare shall be regulated by law.”", "Article 59", "“Everyone has the right to healthcare in accordance with the law.”", "B. The Healthcare Act and corresponding bylaws", "1. Healthcare Act", "21. The Healthcare Act ( Zakon o zdravstvenoj zaštiti, Official Gazette nos. 150/2008, 155/2009, 71/2010, 139/2010, 22/2011, 84/2011 and 154/2011 ), as in force at the material time, provided that healthcare measures included, inter alia, ensuring the full healthcare of women, in particular in relation to family planning, pregnancy, childbirth and motherhood (section 17 ( 10 ) ). Healthcare measures were provided in accordance with a plan and programme drawn up by the Ministry of Health (section 18).", "22. Healthcare services were to be provided by healthcare facilities, companies and private health professionals, under the conditions prescribed by law (section 35 ( 1 ) ). Exceptionally, healthcare services were also provided by other legal entities and physical persons in accordance with the law (section 35 ( 2 ) ).", "23. The Act expressly regulated the private practice of health professionals such as doctors, dentists, dental technicians, pharmacists, nurses and physiotherapists (sections 146 and 147). It did not expressly regulate midwives in private practice.", "24. As regards foreign health professionals in private practice, the law regulating the work of foreigners in Croatia was applicable. Foreign health professionals had to meet the same conditions as national health professionals in private practice, save for having Croatian citizenship. They also had to have relevant knowledge of the Croatian language ( section 145( 4) and 147(7)).", "25. Private health professionals who performed in private practice without meeting the conditions provided by that Act and those who worked in private practice in an area which was banned by that Act, could have been punished for a misdemeanour and ordered to pay a fine of between 5,000 and 10,000 Croatian kunas (HRK) (sections 204 ( 2 ) and 204 ( 9 ) ).", "26. The Act was subsequently amended several times (Official Gazette nos. 12/2012, 35/2012, 70/2012, 144/2012, 82/2013, 159/2 013, 22/2014, 154/2014, 70/2016 and 131/2017 ), but it still did not expressly regulate midwives in private practice.", "2. Bylaw on minimum conditions for space, workers and medical equipment for providing healthcare services", "27. The Bylaw on the minimum conditions for space, workers and medical equipment for providing healthcare services ( Pravilnik o minimalnim uvjetima u pogledu prostora, radnika i medicinsko-tehničke opreme za obavljanje zdravstvene djelatnosti, Official Gazette no. 61/2011– “the Bylaw on minimum conditions”), as in force at the material time, provided that the performing of midwifery services required an examination room measuring at least twelve square metres, a room for an assistant midwife of at least nine square metres, a waiting room measuring at least nine square metres, and toilet facilities for staff and patients. It also regulated which appliances were required for performing midwifery services and which members of staff had to be present during each eight ‑ hour shift (section 31).", "3. Bylaw on the conditions, organisation and functioning of urgent outpatient medical assistance", "28. The Bylaw on the conditions, organisation and functioning of emergency outpatient medical assistance ( Pravilnik o uvjetima, organizaciji i načinu rada izvanbolničke hitne medicinske pomoći, Official Gazette no. 146/2003 – “the Bylaw on emergency medical assistance”), as in force at the material time, regulated the measures and procedures to be followed in the event of an emergency at the place of the emergency, during transport in emergency medical assistance vehicles and on the premises of medical facilities (sections 2 and 3). The Bylaw provided that plans and programmes for the basic education of medical nurses and medical technicians working in urgent outpatient medical assistance had to include, inter alia, assisting with births outside a hospital, dealing with newborns and transporting mothers and newborns ( annex no. 3).", "C. Compulsory Health Insurance Act and Plan and program of the compulsory health insurance healthcare measures", "1. Compulsory Health Insurance Act", "29. The Compulsory Health Insurance Act ( Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 150/2008, 94/2009, 153/2009, 71/2010, 139/2010 and 49/2011), as in force at the material time, provided that guaranteed healthcare was provided through health measures established on the basis of a corresponding plan and programme drawn up by the Ministry of Health (sections 15 ( 2 ) and 15 ( 3 ) ). Insured persons were entitled to obtain guaranteed healthcare at the expense of the Health Insurance Fund ( “ the Fund ” ) in healthcare facilities and from private healthcare professionals who had concluded an agreement with the Fund on providing healthcare services under the conditions prescribed by law (section 15( 4 ) ). Obtaining guaranteed healthcare services related to the monitoring of pregnancies and childbirth was paid for in its entirety by the Fund (section 16 ( 2 )( 3 ) ).", "30. On 1 July 2013 a new Compulsory Health Insurance Act ( Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 80/2013 and 137/2013) came into force. It still provides that guaranteed healthcare is provided through health measures established on the basis of a corresponding plan and programme drawn up by the Ministry of Health (sections 18(2) and 18 (3)).", "2. The Plan and programme of healthcare measures under the compulsory health insurance system", "31. The Plan and programme of healthcare measures under compulsory health insurance ( Plan i program mjera zdravstvene zaštite iz obveznog zdravstvenog osiguranja, Official Gazette nos. 126/2006 and 156/2008 – “the Plan and programme of healthcare measures”) provides that healthcare measures include, inter alia;", "- the examination and vaccination of children born at home (section 1(2)(1)( 14) );", "- emergency transportation of endangered pregnant women, women giving birth and newborns in situations of urgent illnesses and conditions (section 1(4)(1)(4));", "- professional assistance of a doctor and a midwife in home birth and transportation to a maternity ward (section 1 ( 5 )( 2 )( 2 )( 1) );", "- the examination of a woman in her home after giving birth there and an examination in a medical facility six weeks later (section 1 ( 5 )( 2 )( 3 )( 1) ).", "D. Act on Midwifery", "32. The Act on Midwifery ( Zakon o primaljstvu, Official Gazette nos. 120/2008 and 145/2010) provides for the possibility of performing independent midwife work. Approval for performing such work is given by the competent body of the Croatian Chamber of Midwives (section 15).", "33. The Act also provides for the possibility for midwives to set up a private practice if they have completed the relevant education and have obtained approval for performing independent work (section 24 ( 1 ) ). The Act refers to the provisions of the Healthcare Act (section 24 ( 2 ) ) for the procedure for setting up and closing a private practice.", "E. State Registers Act", "34. The State Registers Act ( Zakon o državnim maticama, Official Gazette, no. 96/1993), as in force at the material time, set down which persons were obliged to report the birth of a child to the registry of births when the child was born outside a medical facility (section 11 ( 2 ) ). It also laid down a general obligation for officials to verify data before entering it in the State Register if there was a reasonable suspicion that the data was incorrect (section 25 ( 3 ) ).", "35. The State Registers Act was amended in 2013 to expressly provide that a person reporting the birth of a child born outside a medical facility must submit medical documents related to the birth or proof of motherhood (section 11 ( 3 ) ).", "F. Criminal Code", "36. The relevant provision of the Criminal Code ( Kazneni zakon, Official Gazette no. 125/11), as in force at the material time, read as follows:", "Refusal to provide medical assistance in emergency situations", "Section 183", "“ A doctor of medicine, a dentist or other health professional who declines to provide immediate medical assistance to a person in need of such assistance owing to the existence of a risk of permanent damage to his or her health or life shall be punished by imprisonment of up to three years.”", "Quackery", "Section 184 ( 1 )", "“ Any person who provides medical treatment or other medical assistance while lacking the necessary professional qualifications shall be punished by imprisonment of up to one year.”", "G. Medical Assistance Act", "37. The relevant provisions of the Medical Assistance Act ( Zakon o liječništvu, Official Gazette nos. 121/2003 and 117/2008) provide that a doctor is only allowed to refuse to provide medical assistance when a person is making threats or demonstrating physical aggression towards him or her or another health professional, save for in emergency situations (section 18 ( 4 ) ). In the event of an unlawful refusal to provide medical assistance a doctor can be punished for a misdemeanour and ordered to pay a fine of between HRK 5,000 and 10,000 (section 59).", "V. RELEVANT INTERNATIONAL AND COMPARATIVE- LAW MATERIAL", "38. The other relevant international and comparative- law material is set out in paragraphs 62-68 in the case of Dubská and Krejzová v. the Czech Republic ([GC], nos. 28859/11 and 28473/12, 15 November 2016).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "39. The applicant complained that Croatian law had dissuaded healthcare professionals from assisting her when giving birth at home, in violation of her right to a private life, as provided for in Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The parties ’ arguments", "(a) The Government", "40. The Government maintained that Article 8 was not applicable to the case since the issue at stake was only the personal comfort of the applicant, who had wanted to give birth at home, which could not be part of her right to respect for her private life. There was no scientific proof that giving birth in a medical facility could in any way damage the physical or psychological integrity of a mother or child and thus the legislation concerning home birth as such could not be the subject of an examination by the Court under Article 8 of the Convention.", "41. The Government maintained further that the circumstances of the applicant in the present case should be distinguished from those of the applicants in Dubská and Krejzová (cited above). In that case, one of the applicants had eventually given birth at home alone while the other had had to abandon giving birth at home altogether and have her child in a hospital. The applicant in the present case had given birth at home with the assistance of a midwife from abroad. Furthermore, there was no indication that the applicant would not have had emergency medical assistance if the home birth had gone wrong. Also, the applicant had been able to properly register the birth of her child and neither the applicant nor the midwife concerned had been prosecuted. Against that background, the Government deemed that the applicant could not be seen as a victim of the violation alleged.", "(b) The applicant", "42. The applicant replied that the Court ’ s case-law made it clear that the circumstances of giving birth incontestably formed part of a person ’ s private life. That had been confirmed in Ternovszky v. Hungary ( no. 67545/09, § 22, 14 December 2010 ) and in Dubská and Krejzová (cited above).", "43. She further submitted that she had decided to give birth at home as her first three hospital deliveries had been stressful as she had felt that her wishes had not been respected and that she had not had control over the procedures that had been followed. However, not being able to find any midwife in the Croatian healthcare system to assist her, she had hired one from abroad, which had caused her feelings of uncertainty and anxiety. In particular, she had feared the criminal sanctions that she or the foreign midwife could have faced. Also, since the foreign midwife had not been licensed to practise in Croatia, there had been no guarantee that the midwife would have been able to arrange emergency transport and admission to hospital if the delivery had gone wrong. Finally, her decision to give birth at home had led to her and her child being denied postnatal care, which had been a common situation for women in Croatia who had decided to give birth at home. She could therefore certainly be considered a victim of the violation complained of.", "2. The Court ’ s assessment", "( a ) Applicability of Article 8 of the Convention", "44. The Court held in a recent Grand Chamber case that although Article 8 could not be interpreted as conferring a right to give birth at home as such, the fact that it was impossible in practice for women to be assisted when giving birth in their private home came within the scope of their right to respect for their private life and accordingly of Article 8. It found that issues related to giving birth, including the choice of the place of birth, were fundamentally linked to a woman ’ s private life and fell within the scope of that concept for the purposes of Article 8 of the Convention (see Dubská and Krejzová, cited above, § 163 ). The Court sees no reason to depart from that view in the present case.", "( b ) The applicant ’ s victim status", "45. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 - X). Accordingly, in order to be able to lodge an application in accordance with Article 34 an individual must be able to show that he or she was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015).", "46. In the present case, the Court notes that the applicant complained that the domestic legislation concerning home birth was not consolidated and that therefore she could not obtain assistance of a health professional from the Croatian healthcare system when giving birth at home. The Court further notes that in the above-cited case of Dubská and Krejzová the Grand Chamber assessed a situation under Article 8 of the Convention where domestic legislation did not in practice allow for medical assistance during home births. The Court sees no reason to depart from that view in the present case. The fact that the applicant eventually gave birth at home with the assistance of a midwife from abroad does not prompt the Court to conclude that she cannot claim to be a victim of a violation of her rights under Article 8. Consequently, it dismisses the Government ’ s objection as to the applicant ’ s lack of victim status.", "( c ) Conclusion as to the admissibility", "47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ arguments", "(a) The applicant", "48. The applicant submitted that the domestic legislation concerning home births had placed her in a state of uncertainty as regards the legality of her actions during the vulnerable period of her pregnancy. Moreover, after the delivery she had faced problems such as the denial of postnatal care to her and her child and had still felt anxiety about a possible criminal prosecution. The Government could therefore not claim that there had been no interference with her right to respect for her private life.", "49. The applicant submitted further that the legislation on the matter was not foreseeable. In particular, the Act on Midwifery envisaged private practices for midwives (see paragraph 32 above), while the Bylaw on emergency medical assistance and the Plan and programme of healthcare measures guaranteed professional assistance during home births (see paragraphs 28 and 31 above). Such factors tended to support the conclusion that professionally assisted home births were permitted. However, the Healthcare Act did not provide a procedure for midwives to set up a private practice (see paragraphs 21 -25 above). Moreover, the Ministry of Health had expressed a view that assisting with home births would be considered as quackery (see paragraph 12 above).", "50. The applicant maintained that the interference at issue did not pursue the legitimate aim of protecting the life and health of women and their new ‑ born babies since by allowing home births – but at the same time making it impossible for women to receive professional assistance – the State de facto exposed women and children to increased risks to their health and life.", "51. The applicant did not consider that the State had a wide margin of appreciation on the matter. The issue at stake was a particularly intimate and important aspect of the right of pregnant women to respect for their private life. She also respectfully disagreed with the Grand Chamber in the above ‑ cited case of Dubská and Krejzová that there was no clear common ground regarding skilled attendants at home births. The applicant was of the opinion that there was a clear trend among Council of Europe member States towards a liberal policy on the matter. She added that the consensus on the issue among those States was supported by international expert opinion on the issues of maternal health and the importance of skilled attendants at birth.", "52. The applicant added that the prohibitive and punitive approach adopted by the Republic of Croatia could affect women ’ s enjoyment of other fundamental rights, such as the right to life and health. By making it less safe for women to give birth at home, the State could put those other rights at risk. Unlike the Czech Republic, which had tried to initiate an open discussion on the matter of home birth with a view to adopting certain policies and laws, the Croatian Government had entirely failed to deal with the matter.", "53. The applicant noted that hospital births in the Republic of Croatia were associated with a high risk of procedures that did not respect women ’ s choices. In her argument she relied on the reports of the Committee on the Elimination of Discrimination against Women, the Parents in Action - Roda NGO and the Gender Equality Ombudsperson, which noted situations of a lack of respect for women ’ s wishes in maternity wards during childbirth (see paragraphs 17-19 above).", "54. The applicant contested the Government ’ s argument that Croatia ’ s geographical characteristics and a lack of financial means meant it was not possible to set up an adequate transport system which could ensure the speedy transfer of a mother and child to the nearest hospital in case of an emergency during a home birth (see paragraph 59 below). There was no difference between providing transport for an emergency situation during a home birth or for any other kind of emergency situation. Moreover, the Government did not submit any evidence to demonstrate that the State would face financial constraints if allowing professionally assisted home births.", "55. Lastly, the applicant submitted that her situation should be distinguished from that in Dubská and Krejzová (cited above) as she had been refused postnatal care, which had been a common situation for women in Croatia who had decided to give birth at home. Moreover, women who gave birth at home in Croatia often experienced difficulties registering their children in State registers since the relevant law obliged them to submit medical documents to prove their motherhood. Furthermore, midwives were not free from harassment. The Ministry of Health had expressly held that their assisting with home births was considered as quackery (see paragraph 12 above) and they had also been submitted to police questioning (see paragraph 15 above). The applicant thus argued that her situation was more akin to Ternovszky (cited above), in which the Court had held that a lack of legal certainty and threats to healthcare professionals had limited the choices of the applicant in that case when considering home delivery. For the Court, that situation had been incompatible with the notion of “foreseeability” and hence with that of “lawfulness” ( ibid., § 26).", "(b) The Government", "56. The Government firstly argued that there had been no interference with the applicant ’ s right to respect for her private life because she had given birth at home, as she had wished, with the assistance of a midwife from abroad.", "57. Were the Court to find that there had been an interference owing to the fact she had not been able to have the assistance of a health professional from the Croatian healthcare system, the Government maintained that it had been based in law since the relevant legislation regulated births in medical facilities only, which implied that planned home births with the assistance of health professionals were not permitted. That was confirmed by the Ministry of Health letter (see paragraph 12 above) to which the applicant had referred in her application to the Court. The possibility to set up private midwife practices was still not regulated by law. Such interference also pursued the legitimate aim of protecting the health and life of mothers and their new-born children.", "58. As to the proportionality of the interference, the Government maintained that even though home delivery might be more pleasant for women giving birth, it still represented, in the light of all the scientific findings known to them, an option that was less safe than a full hospital delivery. They noted that the Commission for Perinatal Medicine of the Ministry of Health was of the view that hospitals were the safest places for child deliveries, providing the best guarantees for the preservation of the health and life of both mothers and babies. As such, the question of whether the State should allow its medical staff to participate in such deliveries fell within its margin of appreciation, meaning that each Contracting Party should be absolutely free to decide on its own, on the basis of its own assessment of numerous factors which needed to be considered, whether or not to provide that alternative to its citizens. The Government asserted that the Contracting Parties should not be compelled to make provision for home delivery and that the spirit of the Convention did not require that legislative measures or practices to that effect should be implemented in every Contracting Party. That, however, did not mean that a Contracting Party should entirely disregard the fact that a substantial number of women did not feel comfortable in a hospital environment and that certain adverse effects in relation to child delivery could be linked to that particular feeling of discomfort and fear.", "59. The Government submitted that apart from the capital and several other bigger cities the Republic of Croatia consisted mostly of large and sparsely populated rural areas and islands and mountainous terrain that was difficult to access. In such circumstances it was virtually impossible to provide an effective transport system which could ensure the speedy transfer of a mother and child to the nearest hospital if a home birth went wrong. Furthermore, the Republic of Croatia did not for the time being have sufficient financial resources to set up a home birth system which could guarantee the same level of medical services as in medical facilities.", "60. The Government submitted that 99.2% of deliveries in Croatia took place in public maternity wards. There were currently thirty-one public maternity wards and one private ward in Croatia. In line with the available space and other capacities, maternity wards allowed women to choose between several possible delivery positions and to have a spouse or other close relative present during giving birth. Mothers -to-be were free to choose the maternity ward in which they wished to give birth. The Government further submitted that in 1993 Croatia had joined the Baby-Friendly Hospital Initiative (BFHI), a programme launched by the WHO and UNICEF. Currently all maternity wards in Croatia were BFHI accredited, that is certified for their excellence in maternity care and support for breastfeeding. In 2015 Croatia had also joined the Mother-Friendly Hospital Initiative and in 2016 it had initiated a pilot programme to comply with the guidelines set down by the International Federation of Gynaecology and Obstetrics.", "61. As to the applicant ’ s allegation that she had been denied postnatal care, the Government submitted that doctors were not allowed under the relevant law to refuse to provide medical assistance (see paragraphs 36 and 37 above). Even if her allegation was true, the applicant had never reported such an event to any relevant authority. Finally, there was no dispute about the fact that the applicant had received medical assistance and medical care after the delivery (see paragraph 10 above) and had managed to register her child in the State register (see paragraph 11 above). As regards the anxiety that the applicant had allegedly felt in relation to possible criminal sanctions, the Government maintained that there was no single provision in domestic law which could be understood as criminalising the actions of women who had decided to give birth at home. No woman had ever been punished for such an act. Moreover, no health professional, including the foreign midwife who had assisted the applicant, had ever been prosecuted in criminal proceedings or sanctioned for assisting with a home birth (see paragraph 16 above). The criminal offence of quackery could only be committed by persons who had provided medical assistance without having the necessary professional qualifications (see paragraph 36 above).", "62. In conclusion, and having regard to the wide margin of appreciation that should be given to the Contracting States on this issue, the Government argued that the interference with the applicant ’ s right to respect for her private life had been proportionate to the aim pursued.", "2. The Court ’ s assessment", "(a) Whether the case should be examined from the standpoint of the State ’ s negative or positive obligations", "63. In the above - cited case of Dubská and Krejzová the Court held that the matter involved “an interference with the applicants ’ right to avail themselves of the assistance of midwives when giving birth at home, owing to the threat of sanctions for midwives, who in practice were prevented from assisting the applicants by the operation of the law” and that “ in any event, as the Court has already held, the applicable principles regarding justification under Article 8 § 2 are broadly similar regardless of analytical approaches adopted” (see Dubská and Krejzová, cited above, § 165).", "64. Accordingly, to determine whether the interference in this case entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that provision, that is whether the interference was “in accordance with the law” and “necessary in a democratic society” for the pursuit of one of the “legitimate aims” specified in Article 8.", "( b ) Was the interference “in accordance with the law”?", "65. The Court reiterates that an impugned interference must have some basis in domestic law, which law must be adequately accessible and be formulated with sufficient precision to enable a citizen to regulate his or her conduct, he or she being able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (ibid., § 167).", "66. In the present case, there was no dispute between the parties that the domestic legal provisions providing the legal basis for the impugned interference were accessible to the applicant. The Court sees no reason to disagree on that point, and it must thus establish whether the provisions were also foreseeable.", "67. The Court notes firstly that giving birth at home is not, as such, prohibited by the Croatian legal system. There are no provisions under domestic law criminalising the acts of women who decide to give birth in that way, and apparently no woman has ever been punished for such an action (see paragraph 61 above).", "68. On the question of whether health professionals were allowed to assist in home births, the Court observes that, pursuant to the Compulsory Health Insurance Act, guaranteed healthcare was provided through health measures established on the basis of the corresponding plan and programme of the Ministry of Health (see paragraphs 29 and 30 above). The corresponding plan and programme included the professional assistance of a doctor and a midwife in a home birth as one of the healthcare measures involved (see paragraph 31 above). Such a regulation tended to support the conclusion that professionally assisted home births were permitted.", "69. The Court further observes that the Act on Midwifery provided for midwives being in private practice (see paragraph 33 above). However, the Healthcare Act never expressly regulated the procedure for midwives setting up in midwife practice (see paragraphs 21-25 above). The Court notes that the Healthcare Act was amended several times after the Act on Midwifery came into force, and it remained silent on that matter (see paragraphs 26 and 32 above). Because of this, in reality, no Croatian health professionals, including midwives, officially assisted with home births (see paragraph 8 above).", "70. The Court further notes that in its letter of 11 May 2011 the Ministry of Health stated that the relevant domestic law provided that babies were to be delivered in medical facilities. The question of home births had not been regulated by law, and medical assistance in such procedures was considered quackery (see paragraph 12 above). The Court does not find it necessary to assess the accuracy of the Ministry of Health ’ s conclusion that such medical assistance would constitute the criminal offence of quackery (see paragraph 36 above). In any event, it appears that no health professional, including the foreign midwife who assisted the applicant, has ever been prosecuted in a criminal case or sanctioned for assisting with a home birth (see paragraphs 16 and 61 above).", "71. The Court also observes that in its letter to the applicant of 1 December 2011 the Croatian Chamber of Midwives, while noting that the matter of midwives in private practice had been regulated in an inconsistent manner, also informed her that, under domestic law, health professionals, including midwives, were unable to assist with home births (see paragraph 8 above). The letter also cited a statement from the Ministry of Health from August 2011, published on the Croatian Chamber of Midwives ’ website, which showed that no system of assisted home births had been set up in Croatia.", "72. The Court therefore accepts that at first there might have been some doubt as to whether a system for assisted home births had been set up in Croatia. It therefore finds it appropriate to invite the Croatian authorities to consolidate the relevant legislation so that the matter is expressly and clearly regulated (see paragraphs 65 and 66 above). However, in the present case, it is of the view that the applicant was clearly made aware, through the letters from the Croatian Chamber of Midwives and the Ministry of Health which she received while she was still pregnant with her fourth child, that the relevant domestic law did not allow health professionals, including midwives, to assist with planned home births.", "73. The Court therefore holds that the impugned interference was foreseeable for the applicant and in accordance with the law.", "(c) Did the interference pursue a legitimate aim?", "74. Contrary to the applicant ’ s arguments, the Court considers that there are no grounds for doubting that the Croatian State ’ s policy of encouraging hospital births, as reflected in the relevant national legislation, was designed to protect the health and safety of mothers and children during and after delivery (compare to Dubská and Krejzová, cited above, § 172 ).", "75. It may accordingly be said that the interference in the present case served the legitimate aim of the protection of the health and rights of others within the meaning of Article 8 § 2 of the Convention ( ibid., § 173 ).", "(d) Was the interference necessary in a democratic society?", "76. The Court summarised the applicable principles in the case of Dubská and Krejzová (ibid.) as follows:", "“174. An interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, mutatis mutandis, Fernández Martinez v. Spain [GC], no. 56030/07, § 124, ECHR 2014 (extracts)).", "175. In this connection, the Court reiterates the fundamentally subsidiary role of the Convention system and recognises that the national authorities have direct democratic legitimation in so far as the protection of human rights is concerned. Moreover, by reason of their direct and continuous contact with the vital forces of their countries, they are in principle better placed than an international court to evaluate local needs and conditions (see, e.g., Maurice v. France [GC], no. 11810/03, § 117, with further references, ECHR 2005-IX).", "176. It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals ’ rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests (see Odièvre, cited above, § 49; Van Der Heijden v. the Netherlands [GC], no. 42857/05, § 56, 3 April 2012).", "177. While it is for the national authorities to make the initial assessment, the final evaluation as to whether an interference in a particular case is “necessary”, as that term is to be understood within the meaning of Article 8 of the Convention, remains subject to review by the Court (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008; Van Der Heijden, cited above, § 57).", "178. A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case. The margin will tend to be relatively narrow where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will also be restricted. Where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Van der Heijden, cited above, §§ 55-60 with further references, and also Parrillo v. Italy [GC], no. 46470/11, § 169, with further references, ECHR 2015).", "179. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52 with further references, ECHR 2006-VI; Shelley v. the United Kingdom ( dec. ), no. 23800/06, 4 January 2008; and Hristozov, cited above, § 119).”", "77. In the case at hand, the Court has to establish whether the fact that it was impossible in practice for the applicant to be assisted by a health professional from the Croatian healthcare system during her home birth struck a fair balance, on the one hand, between the applicant ’ s right to respect for her private life under Article 8, and, on the other, the State ’ s interest in protecting the health and safety of mothers and children during and after delivery. In addition to this, the Court has to verify whether the respondent State, by allegedly denying postnatal care to the applicant and her child born at home, and by making it difficult for her to register her child in the State register, overstepped the margin of appreciation afforded to it.", "78. As to the respondent State passing legislation that did not in practice allow women to be assisted by health professionals from the Croatian healthcare system when giving birth at home, the Court notes that in the above - cited case of Dubská and Krejzová, the Grand Chamber held that the margin of appreciation to be afforded to the national authorities in that case had to be wide, while not being unlimited (see Dubská and Krejzová, cited above, §§ 182-184). In the light of those considerations, the Court must see whether the interference constitutes a proportionate balancing of the competing interests involved, having regard to the margin of appreciation. In cases arising from individual applications the Court ’ s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it. Consequently, the Court ’ s task is not to substitute its own view for that of the competent national authorities in determining the most appropriate policy for regulating matters regarding the circumstances of giving birth. Instead, it must decide on the compatibility with Article 8 of the State ’ s interference in the present case on the basis of the fair-balance test described above (see Dubská and Krejzová, cited above, § 184).", "79. The applicant in the present case wished to give birth at home with the assistance of a midwife. The Court accepts that as a consequence of the operation of the legislative provisions in force at the relevant time, she was put in a situation which had a serious impact on her freedom of choice: she was required either to give birth in a hospital, or, if she wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that posed to herself and her baby. In the end, she gave birth at home with a midwife from abroad (see paragraph 9 above).", "80. In that regard, the Court takes note of the Government ’ s argument that in the light of all the scientific findings known to them, and even though home delivery might be more pleasant for mothers-to-be, it still represented an option that was not as safe as a full hospital delivery. They noted that the Commission for Perinatal Medicine of the Ministry of Health was of the view that hospitals were the safest places for performing deliveries, providing the best guarantees for the preservation of the health and life of both mothers and newborns (see paragraph 58 above). In the case of Dubská and Krejzová the Court also noted that the risk for mothers and newborns was higher in the case of home births than in the case of births in maternity hospitals which were fully staffed and adequately equipped from a technical and material perspective, and that even if a pregnancy proceeded without any complications and could have therefore been considered a “low-risk” pregnancy, unexpected difficulties could arise during the delivery which would require immediate specialist medical intervention, such as a Caesarean section or special neonatal assistance. Moreover, the Court noted that a maternity hospital could provide all the necessary urgent medical care, whereas this would not be possible in the case of a home birth, even with a midwife attending (see Dubská and Krejzová, cited above, § 186).", "81. The Court notes that the applicant could have opted to give birth in any maternity ward in Croatia which she considered likely to respect her wishes in principle (see paragraph 60 above). However, according to the applicant ’ s submissions based on her own experience (see paragraph 4 8 above), the wishes of mothers-to-be do not seem to be fully respected in maternity wards. Those remarks would seem to be confirmed in substance by the reports of the Committee on the Elimination of Discrimination against Women, the Parents in Action - Roda NGO and the Gender Equality Ombudsperson, which noted situations of a lack of respect for women ’ s wishes in maternity wards during childbirth (see paragraphs 17-19 above).", "82. In the Court ’ s opinion, those concerns cannot be disregarded when assessing whether the authorities struck a fair balance between the competing interests at stake. At the same time, the Court acknowledges that in recent years according to the Government, various initiatives to improve the situation have been taken, notably by joining the Mother-Friendly Hospital Initiative in 2015 and starting a pilot programme in 2016 to comply with the guidelines set by the International Federation of Gynaecology and Obstetrics (see paragraph 60 above). On that background, the Court finds it appropriate to invite the Croatian authorities to make further progress in such matters by keeping the relevant legal provisions under constant review so as to ensure that they reflect medical and scientific developments while fully respecting women ’ s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country (compare Dubská and Krejzová, cited above, § 189).", "83. The applicant also complained that women deciding to give birth at home, as well as the midwives agreeing to assist them, had faced possible criminal sanctions for their actions. However, as already noted by the Court, there are no provisions under domestic law criminalising the acts of women who have decided to give birth in that way. Moreover, according to the Government, no woman has ever been punished for such actions (see paragraph 6 1 above).", "84. The Court further notes that the Ministry of Health expressed a view in its letter of 11 May 2011 that since the question of home birth was not regulated by law medical assistance with home births would be considered quackery (see paragraph 12 above). As already noted by the Court, it does not find it necessary to assess the accuracy of the Ministry of Health ’ s conclusion that such medical assistance would constitute the criminal offence of quackery (see paragraph 36 above). Indeed, although it appears that several midwives suspected of having taken part in the birth had been questioned by the police, apparently no health professional, including the foreign midwife who assisted the applicant, has ever been prosecuted in a criminal case or sanctioned for assisting with a home birth (see paragraphs 15, 16 and 61 above).", "85. Taking into account above considerations, the Court is of the view that by not passing legislation that would in practice allow women to be assisted by health professionals from the Croatian healthcare system when giving birth at home, the State did not overstep the wide margin of appreciation afforded to it on the matter (see paragraph 78 above). The Court reiterates that, while it would be possible for the respondent State to allow planned home births, it is not required to do so under the Convention as currently interpreted by the Court. There still remains a great disparity between the legal systems of the Contracting States on the matter (see Dubská and Krejzová, cited above, § 183), and the Court remains respectful of the gradual development of law in the sphere.", "86. As to the applicant ’ s complaint that she and her child were denied postnatal care, allegedly a common situation faced by women in Croatia who decided to give birth at home, the Court firstly reiterates that in no circumstances should a child be deprived of his or her right of access to healthcare services on the grounds that he or she was born outside of a medical facility. The best interests of the child must be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (see Dubská and Krejzová, cited above, § 64).", "87. In this respect, the Court notes that the applicant never reported the event of being denied postnatal care to any relevant authority. There is thus no document whatsoever to allow the Court to verify that allegation. The Court notes in that regard that under the relevant domestic law a doctor who unlawfully refused to provide medical assistance could be punished for a misdemeanour and ordered to pay a fine of between 5,000 and 10,000 Croatian kunas (see paragraph 36 above). Moreover, the refusal of medical assistance in an emergency situation constituted a criminal offence (see paragraph 37 above). Therefore, if the applicant and her child had initially indeed been refused postnatal care as she alleged and if she had reported the event the doctors involved could have been sanctioned. In any event, it was undisputed that the applicant and her child eventually did receive post-delivery medical care (see paragraph 10 above).", "88. The Court further notes that the issue of the first medical examination of children born at home was a matter of discussion between the Ministry of Health and Parents in Action - Roda NGO. According to the Ministry of Health ’ s letter of 31 May 2012, situations in which doctors were faced with having to examine children born at home without there being any medical documentation were becoming more and more frequent. The ministry thus maintained that doctors were obliged to examine such children but were not allowed to register data they were not able to verify (see paragraph 14 above).", "89. As to the applicant ’ s complaint that women giving birth at home experienced difficulties in registering their children in State registers as the relevant law obliged them to submit medical documents to prove their motherhood, the Court firstly notes that there is indeed such a requirement under the domestic law (see paragraphs 13, 30 and 34 above). However, the Court finds such a requirement understandable as it is clearly directed at avoiding possible abuses in situations where there is no official information on the birth of a child or its biological parents. As to the applicant ’ s particular situation, the Court notes that her child was born on 15 February 2012 and that she succeeded in registering the birth on 23 February 2012 (see paragraph 11 above).", "90. In conclusion, and having regard to the particular circumstances of the present case, the Court is of the view that the interference with the applicant ’ s right to respect for her private life was not disproportionate.", "91. Accordingly, there has been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "92. The applicant complained that as the matter of professional assistance with home births was not properly regulated she did not have at her disposal an effective domestic remedy for her complaint related to the violation of her right to respect for her private life. She relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "93. The Government reiterated their arguments submitted under Article 8 of the Convention.", "94. The Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the grounds of being contrary to the Convention (see, among other authorities, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 94, ECHR 2013 (extracts), and Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X). In the instant case, the applicant ’ s complaint under Article 13 is at odds with this principle. Consequently, this complaint is manifestly ill-founded and as such must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicants were born in 1972 and 1958 respectively. The first applicant is in prison and the second applicant lives in Hull.", "10. In 1994 the first applicant was convicted of murder (kicking a drunken man to death) and sentenced to life imprisonment with a tariff of fifteen years. His earliest expected release date is 2009. He has no children.", "11. In 1999 he met the second applicant, while she was also imprisoned, through a prison pen- pal network. She has since been released. In 2001 the applicants married. The second applicant already had three children from other relationships.", "12. Since the applicants wished to have a child, in October 2001 the first applicant applied for facilities for artificial insemination. In December 2002 the second applicant joined this application. They relied on the length of their relationship and the fact that, given the first applicant ’ s earliest release date and the second applicant ’ s age, it was unlikely that they would be able to have a child together without the use of artificial insemination facilities.", "13. In a letter dated 28 May 2003 the Secretary of State refused their application. He first set out his general policy (“the Policy”):", "“Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations:", "– whether the provision of artificial insemination facilities is the only means by which conception is likely to occur", "– whether the prisoner ’ s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent", "– whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with artificial insemination", "– whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner ’ s release", "– whether there is any evidence to suggest that the couple ’ s domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might expect to be without a father or mother", "– whether having regard to the prisoner ’ s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.”", "He then gave his reasons for refusal in the present case :", "“ ... the Home Secretary has had particular regard to the likely age of your wife at the time that you will become eligible for release. Your wife will be 51 years of age at the earliest possible date of release and therefore the likelihood of her being able to conceive naturally is small. It is noted that Mrs Dickson has three children from an earlier relationship. In the light of your wife ’ s age, the Minister has looked with very great care at both you and your wife ’ s circumstances, ...", "The Minister has noted that you and your wife are in full agreement about your wish to conceive artificially. He also recognises the commitment which you and your wife have shown to one another. However, he notes that your relationship was established while you were in prison and has therefore yet to be tested in the normal environment of daily life. A reasoned and objective assessment cannot be made as to whether your relationship will subsist after your release.", "Further he is concerned that there seems to be insufficient provision in place to provide independently for the material welfare of any child which may be conceived. In addition, there seems to be little in the way of an immediate support network in place for the mother and any child which may be conceived. It also remains a matter of deep concern that any child which might be conceived would be without the presence of a father for an important part of his or her childhood years.", "While recognising the progress which you have made in addressing your offending behaviour, the constructive use that you have made of your time in prison in preparation for your release and your good prison behaviour, the Minister nevertheless notes the violent circumstances of the crime for which you were sentenced to life imprisonment. It is considered that there would be legitimate public concern that the punitive and deterrent elements of your sentence of imprisonment were being circumvented if you were allowed to father a child by artificial insemination while in prison. ”", "14. The applicants sought leave to apply for judicial review of the Secretary of State ’ s decision. On 29 July 2003 the High Court refused leave on the papers. The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing. On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible on 15 December 2003 on the basis that they had failed to exhaust domestic remedies ( application no. 34127/03). The applicants then applied to the Court of Appeal for leave to appeal.", "15. On 30 September 2004 their application was unanimously rejected by the Court of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in R (Mellor) v. Secretary of State for the Home Department [2001] 3 WLR 533. He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips, Master of the Rolls, in the Mellor case (see paragraphs 23-26 below) and commented:", "“... Lord Phillips clearly had in mind, and he set it out in the course of his judgment, the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life, including the protection of health or morals and the protection of the rights and freedom of others. It seems to me that concern, not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside, and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved, are highly relevant circumstances for the purposes of Article 8.2 ...", "Accordingly, in my view, it is not open to [the applicants] to seek to re-open the validity of the Secretary of State ’ s policy which this court has held in Mellor is rational and otherwise lawful. As Lord Phillips made clear in his judgment in that case, although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether, the finishing point is whether there are exceptional circumstances for not applying the policy ...”", "He then noted that on occasions the Secretary of State had “dis-applied” the Policy when the circumstances had merited it: he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances.", "16. Auld LJ then applied the Policy to the present case:", "“To the extent that [the applicants have] suggested that [the] Secretary of State has irrationally misapplied his own policy to the circumstances, or has otherwise acted disproportionately in applying it, I would reject the suggestion. There is no basis for saying that the Secretary of State ’ s approach can be equated, as [the applicants] suggested, with the extinction of a fundamental right. It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided, an exercise of discretion and proportionality in respect of which, in my view, the Secretary of State cannot be faulted on the circumstances as presented to him.”", "17. The other judges also relied on the judgment in Mellor. Mance LJ said the following:", "“The case of Mellor is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination ... I note that, in addition to the European authorities specifically mentioned in paragraph 42 by Lord Phillips, the Commission, in its decision in Draper v. the United Kingdom [no. 8186/78, Commission ’ s report of 10 July 1980, DR 24, pp. 81-82, §§ 61- 62 ], also recognised the potential relevance of more general considerations of public interest.”", "18. On 19 December 2006 the first applicant was transferred to the open side of another prison as a Category D prisoner. In principle, he was eligible for unescorted home leave after six months should he retain his Category D status (Rule 9 of the Prison Rules 1999, as implemented by Chapter 4.3 – “Temporary Release for Life Sentence Prisoners” – of Prison Service Order 6300)." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Prison Rules", "19. The Secretary of State is empowered to make rules for the management of prisons by section 47 of the Prison Act 1952, the relevant parts of which provide as follows:", "“The Secretary of State may make rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein ...”", "20. The relevant rules are the Prison Rules 1999 (SI 1999 No. 728). Rule 4 provides as follows:", "“Outside Contacts", "(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.", "(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”", "B. R (Mellor) v. Secretary of State for the Home Department [2001] 3 WLR 533", "21. The Policy was challenged by a Mr Mellor, a prisoner serving a life sentence for murder. He was 29 years of age at the time his case came before the Court of Appeal with a minimum of 3 years ’ imprisonment to serve. His wife was 25 years old. At his earliest release she would have been 28. He and his wife had been refused artificial insemination facilities: it was considered that there was nothing exceptional about their case.", "22. They sought leave to apply for judicial review of the Policy itself, rather than its application to their case, arguing that it was an unjustified interference with their Article 8 rights. They distinguished the Policy from that concerning conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The government argued that the Policy was justified in that (a) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family; (b) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison; and (c) it was undesirable, as a general rule, for children to be brought up in single- parent families. The High Court refused leave and the applicants appealed.", "23. The Court of Appeal ( Lord Phillips delivering the main judgment) noted that the Secretary of State ’ s decision pre-dated the incorporation of the Convention into English law and continued:", "“It is, however, his contention that English domestic law has at all times accorded with the Convention. Nor has he challenged the appellant ’ s case that the requirements of the Convention provide a touchstone for judging the rationality of his decision and the policy pursuant to which it was reached. This is a sensible approach for what matters to the appellant is the extent of his rights today and the Secretary of State is also principally concerned with whether his policy complies with the provisions of the Convention, which now forms part of our law. In the light of this approach I propose first to consider the Strasbourg jurisprudence, then the relevant English domestic law before turning to consider whether the decision of the Secretary of State is in conflict with either. ”", "24. Having examined relevant Commission jurisprudence ( no. 6564/74, Commission decision of 21 May 1975, Decisions and Reports (DR ) 2, p. 105; no. 8166/78, Commission decision of 3 October 19 78, DR 13, p. 241; Hamer v. the United Kingdom, no. 7114/75, Commission ’ s report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission ’ s report of 10 July 1980, DR 24, p. 72; and E. L. H. and P. B. H. v. the United Kingdom, nos. 32094/96 and 32568/96, Commission decision of 22 October 19 97, DR 91 -A, p. 61), Lord Phillips summarised five Convention principles he considered thereby established:", "“ ( i) The qualifications on the right to respect for family life that are recognised by Article 8(2) apply equally to the Article 12 rights.", "( ii) Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under Article 8 and with the right to found a family under Article 12.", "( iii) This restriction is ordinarily justifiable under the provisions of Article 8(2).", "( iv) In exceptional circumstances it may be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a human right.", "( v) There is no case which indicates that a prisoner is entitled to assert the right to found a family by the provision of semen for the purpose of artificially inseminating his wife.”", "25. Lord Phillips went on to approve the reasons given to justify the restriction of artificial insemination facilities to exceptional circumstances.", "As to the first justification, he agreed that the deprivation of the right to conceive was part and parcel of imprisonment and, indeed, that that statement did no more than restate the Policy in that it indicated that it was a “deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children”.", "On the second justification, he considered that there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison. Lord Phillips agreed that public perception was a legitimate element of penal policy:", "“Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system. ... A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern. ... When considering the question of whether, in the ordinary course, prisoners should be accorded the facility to beget children while imprisoned I consider it legitimate to have regard to all the consequences of that particular policy option.”", "As regards the third justification which concerned the alleged disadvantage of single- parent families, he commented:", "“I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.”", "26. Lord Phillips then concluded:", "“For those reasons [the Mellors] failed to make out [the] case that the [Policy] ... is irrational. [The Mellors] accepted that there were in this case no exceptional circumstances, and [they were] right to do so. It follows that the question of whether each of the six general considerations set out in [the Secretary of State ’ s ] letter is one to which it is rational to have regard, when looking for exceptional circumstances, does not arise. I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.", "For these reasons ... the refusal to permit the appellant the facilities to provide semen for the artificial insemination of his wife was neither in breach of the Convention, unlawful nor irrational. It follows that I would dismiss the appeal.”", "C. Procedure for artificial insemination in prisons", "27. Responsibility for making artificial insemination arrangements is with the health - care department in the relevant prison in consultation with the local primary care trust. Since the level of health - care provision varies from prison to prison, it will therefore be a matter for local decision as to whether the collection of sperm would be overseen by staff at the prison or whether it would be necessary for an outside professional to attend for this purpose. The prisoner would be expected to meet any costs incurred.", "D. The objectives of a prison sentence", "28. Criminologists have referred to the various functions traditionally assigned to punishment, including retribution, prevention, protection of the public and rehabilitation. However, in recent years there has been a trend towards placing more emphasis on rehabilitation, as demonstrated notably by the Council of Europe ’ s legal instruments. While rehabilitation was recognised as a means of preventing recidivism, more recently and more positively it constitutes rather the idea of re-socialisation through the fostering of personal responsibility. This objective is reinforced by the development of the “progression principle”: in the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release.", "1. Relevant international human rights ’ instruments", "29. Article 10(3) of the International Covenant on Civil and Political Rights (“ the ICCPR”) provides that the “ penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ”. The General Comment of the Human Rights Committee on Article 10 further states that “ no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner ”.", "30. The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) contains specific provisions on sentenced prisoners, including the following guiding principles:", "“ 57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.", "58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law- abiding and self-supporting life.", "59. To this end, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners. ”", "2. European Prison Rules 1987 and 2006", "31. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.", "The 1987 version of the European Prison Rules (“the 1987 Rules”) notes, as its third basic principle, that :", "“ The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release. ”", "The latest version of those Rules adopted in 2006 (“the 2006 Rules”) replaces this above-cited principle with three principles:", "“ Rule 2 : Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.", "...", "Rule 5 : Life in prison shall approximate as closely as possible the positive aspects of life in the community.", "Rule 6: All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty. ”", "The commentary on the 2006 Rules ( prepared by the European Committee on Crime Problems – “ the CDPC ” ) noted that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights : in fact restrictions should be as few as possible. Rule 5, the commentary observes, underlines the positive aspects of normalisation recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “ recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind ”.", "32. The first section of Part VIII of the 2006 Rules is entitled “ Objective of the regime for sentenced prisoners ” and provides, inter alia :", "“ 102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.", "102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”", "In these respects, the CDPC commentary explains that Rule 102:", "“ ... states the objectives of the regime for prisoners in simple, positive terms. The emphasis is on measures and programmes for sentenced prisoners that will encourage and develop individual responsibility rather than focussing narrowly on the prevention of recidivism. ...", "The new Rule is in line with the requirements of key international instruments including Article 10(3) of the [ICCPR], ... However, unlike the ICCPR, the formulation here deliberately avoids the use of the term, “rehabilitation”, which carries with it the connotation of forced treatment. Instead, it highlights the importance of providing sentenced prisoners, who often come from socially deprived backgrounds, the opportunity to develop in a way that will enable them to choose to lead law-abiding lives. In this regard Rule 102 follows the same approach as Rule 58 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.”", "33. Rule 105.1 of the 2006 Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime. Rule 106.1 provides that a systematic programme of education, with the objective of improving prisoners ’ overall level of education, as well as the prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. Finally, Rule 107.1 requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law-abiding life in the community.", "34. The reason for the evolution towards the 2006 Rules can be understood through two Committee of Ministers recommendations, both of which address the rehabilitative dimension of prison sentences.", "35. The preamble to Recommendation (2003)23 on the management by prison administrations of life- sentence and other long-term prisoners provides that:", "“ ... the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security, good order and discipline in penal institutions, on the one hand, and providing prisoners with decent living conditions, active regimes and constructive preparations for release, on the other; ”", "The aims of the management of long-term prisoners in paragraph 2 of the Recommendation included the following:", "“– to ensure that prisons are safe and secure places for these prisoners ...;", "– to counteract the damaging effects of life and long-term imprisonment;", "– to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law-abiding life following their release.”", "The recommendation also outlined five linked principles (paragraphs 3 ‑ 8) for the management of long -term prisoners:", "– account to be taken of the personal characteristics of prisoners (individualisation principle);", "– prison life to be arranged so as to approximate as closely as possible to the realities of life in the community ( normalisation principle );", "– the opportunity to be accorded to exercise personal responsibility in daily prison life ( responsibility principle);", "– a clear distinction should be made between the risks posed by life and long - term prisoners to themselves, to the external community, to other prisoners and to those working or visiting the prison ( security and safety principle );", "– prisoners should not be segregated on the basis of their sentence ( non ‑ segregation principle ); and", "– the planning of an individual prisoner ’ s long -term sentence should aim at securing progressive movement through the prison system ( progression principle ).", "The Recommendation also specifies (at paragraph 10) use of the progression principle to ensure progressive movement through the prison system “ from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community ”. There should also be participation in prison activities that “increase the chances of a successful resettlement after release ” and conditions and supervision measures that are “ conducive to a law-abiding life and adjustment in the community after conditional release ”.", "36. The second relevant Committee of Ministers ’ recommendation is Recommendation (2003)22 on conditional release (parole). The fifth paragraph of the preamble considers that “research has shown that detention often has adverse effects and fails to rehabilitate offenders ”. The Recommendation outlines (paragraph 8) the following measures to reduce recidivism, by the imposition of individualised conditions such as:", "“– the payment of compensation or the making of reparation to victims;", "– entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime;", "– working or following some other approved occupational activity, for instance, education or vocational training;", "– participation in personal development programmes; and", "– a prohibition on residing in, or visiting, certain places. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 8 AND 12 OF THE CONVENTION", "37. The applicants complained about the refusal of artificial insemination facilities, arguing that that refusal breached their right to respect for their private and family life guaranteed by Article 8. The relevant parts of that Article read as follows:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "38. They also complained that that refusal breached their right to found a family under Article 12 of the Convention, which reads as follows:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of that right.”", "A. The Chamber judgment", "39. While the Chamber confirmed that persons continued to enjoy all Convention rights following conviction except the right to liberty, it also noted that any prison sentence has some effect on the normal incidents of liberty and inevitably entailed limitations and controls on the exercise of Convention rights. The fact of such control was not, in principle, incompatible with the Convention but the key issue was whether the nature and extent of that control was compatible.", "40. As to whether the impugned restriction constituted an interference with the applicants ’ right to respect for their private and family lives (the State ’ s negative obligations) or a failure by the State to fulfil a positive obligation in those respects, the Chamber considered that the impugned restriction concerned the State ’ s refusal to take steps to allow something not already an existing general entitlement. Accordingly, the case concerned a complaint about the State ’ s failure to fulfil a positive obligation to secure the applicants ’ rights.", "41. The requirements of the notion of “respect” for private and family life in Article 8 were not clear cut, especially as far as the positive obligations inherent in that concept were concerned, and varied considerably from case to case having regard notably to the diversity of situations obtaining in Contracting States and the choices which had to be made in terms of a State ’ s priorities and resources. These considerations were of particular relevance in the present case, where the issues raised touched on an area where there was little consensus amongst the member States of the Council of Europe. Accordingly, this was an area in which the Contracting States enjoyed a wide margin of appreciation.", "42. As to the fair balance that had to be struck between the interests of the community and those of the individual in determining the existence and scope of any positive obligation, the Chamber first examined the Policy in general. It considered its two principal aims to be legitimate: the maintenance of public confidence in the penal system and the welfare of any child conceived and, therefore, the general interests of society as a whole. The Chamber attached particular importance to the fact that it did not operate as a blanket ban but rather allowed consideration of the circumstances of each application for artificial insemination facilities on the basis of domestic criteria considered to be neither arbitrary nor unreasonable and which related to the underlying legitimate aims of the Policy. The Chamber rejected the suggestion that domestic consideration was merely theoretical or illusory, as the unchallenged evidence was that artificial insemination facilities had been granted in certain cases in the past.", "43. Finally, and as to the application of the Policy in the applicants ’ case, the Chamber had regard to the difficult situation in which the applicants found themselves. However it noted that careful consideration had been given by the Secretary of State to their circumstances, that the decision had then been examined in detail by the High Court and the Court of Appeal, and that those courts had found that not only was the Policy rational and lawful but that its application in their circumstances was neither unreasonable nor disproportionate.", "44. Having regard to the wide margin of appreciation afforded to the national authorities, the Chamber went on to find that it had not been shown that the decision to refuse the applicants facilities for artificial insemination was arbitrary or unreasonable or that it had failed to strike a fair balance between the competing interests so that there was no appearance of a failure to respect the applicants ’ rights to their private and family life and, consequently, no violation of Article 8 of the Convention.", "45. For the same reasons, the Chamber found that there had been equally no violation of Article 12 of the Convention.", "B. The applicants ’ submissions", "1. Article 8 of the Convention", "46. The applicants disputed the reasoning and conclusions of the Chamber, relying rather on the dissenting opinions of Judges Casadevall, Garlicki and Borrego Borrego. The jurisprudence cited by the Government was mainly that of the former Commission, and was neither indicative of current trends nor referred directly to the point. Since the matter was free of precedent, the Grand Chamber was free to rule.", "47. They noted that the Government had, before the Chamber and initially before the Grand Chamber, maintained that the aim of the restriction was punishment. If that was indeed the aim, it did not make sense to admit of any exceptions to the Policy: logically the Policy should not have any application to, for example, post-tariff prisoners detained on the basis of future risk – but it did. The Policy thereby discriminated between a life- sentence prisoner admitted to open conditions and those who were not so admitted; and there was no link between the offence and the punishment: while the refusal of facilities for artificial insemination to a person convicted of offences against children could be coherent, the broad refusal apart from in exceptional cases was arbitrary.", "48. However, before the Grand Chamber, the Government mainly emphasised that the Policy was a necessary consequence of imprisonment: apart from being a highly subjective view, refusing artificial insemination facilities was not consequential to detention as there were simply no security or other physical or financial barriers. The Chamber ’ s failure to deal with both of those issues undermined its judgment.", "49. This punitive aim, implying as it did that prisoners ’ fundamental rights were the exception rather than the norm, was not compatible with the Convention. Only the right to liberty was automatically removed by a sentence of imprisonment. A State had to justify the limitation of any other rights. The starting- point of the Policy was therefore wrong and should be reversed: the Policy should be that prisoners had a right to procreate unless there were compelling reasons against. This inversed structure prevented any real assessment of each individual case : it was necessary to show that, but for artificial insemination, conception would be impossible and, thereafter, exceptional circumstances had to be demonstrated. The odds were thereby so stacked against the grant of facilities that there was no real individual assessment and the result was a foregone conclusion so that the Policy amounted to a blanket ban.", "50. The applicants maintained that the burden placed on the State by the requested facilities was so minimal (allowing something to take place with minimal regulation) that the distinction between positive and negative obligations had no useful application. If one had to choose, they argued that a refusal of artificial insemination facilities constituted an interference with a right to beget children (negative obligation). The suggestion that it had to be analysed as a positive obligation presupposed that the aim of imprisonment and of the Policy was punishment so that, as noted above, one lost one ’ s fundamental rights (including the right to beget children) on imprisonment as part of that punishment. Once it was accepted that a prisoner retained his Convention rights on imprisonment and was simply requesting a procedure to facilitate one of those rights, that request had to be analysed in the negative obligation context. Even if an onerous burden on the State could be analysed in the positive obligation context, there was evidently none and the Government did not argue that there was: the applicants would have paid any costs and there was no burden on security or facilities except for access to the prison by an approved visitor to take away the sample.", "51. As to the margin of appreciation to be applied and the trend towards conjugal visits, the applicants pointed out that they were asking for something less onerous and, if there was no consensus about artificial insemination facilities, this was because such facilities were not necessary in those countries where conjugal visits were granted. The Court could not hide behind the margin it felt should be accorded in the present case. On the contrary, the refusal was based on a Policy which had never been subjected to parliamentary consideration and which allowed for no real proportionality examination domestically: the margin of appreciation had no role to play in such circumstances. Rather, this Court had to step into the shoes of the domestic decision-makers and make its own determination of where the balance of interests lay.", "52. As to the considerable justification necessary for the refusal of artificial insemination facilities, the applicants maintained that neither the Policy, nor its application in their case, was adequate.", "53. The punitive aim was, for reasons noted above, not coherent or logical. As regards the argument that the inability to beget children was a direct consequence of imprisonment, the applicants argued above that the burden on the State would be minimal.", "54. The social factors (interests of the putative child and of society) said to underlie the Policy were not contemplated by the second paragraph of Article 8. The concept of the wider public interest was vague, ill-defined and there was, in any event, no evidence that providing the requested facilities would undermine public confidence in the penal system. The suggestion that the best interests of the child were relevant to the grant of facilities was offensive, inappropriate, paternalistic and unconvincing: it was the thin edge of the wedge as regards judging who should become parents and who should be born (Codd, “ Regulating Reproduction: Prisoners ’ Families, Artificial Insemination and Human Rights ” [2006] EHRLR 1); it was inconsistent with the principle of rehabilitation; it was unconvincing and injurious to assume that being raised by a single parent was necessarily not in the child ’ s best interests; and the interests of the child as a justification was specious as it suggested that the only way to protect that child ’ s interest was to ensure it was never born. These arguments were also insulting to single parents and, indeed, against domestic legal developments which minimised this factor in its jurisprudence in other non-prisoner artificial insemination cases ( R v. Blood [1997] 2 WLR 806 and the Human Fertilisation and Embryology (Deceased Fathers) Act 2003). This effectively put the burden on the parent to prove that he or she could be a good parent (including financially). In any event, the domestic body competent to make decisions regarding human fertilisation was the Human Fertilisation and Embryology Authority which should have been competent to determine if the applicants were suitable candidates for artificial insemination.", "55. As to the application of the Policy to them, the applicants underlined that a refusal of artificial insemination facilities would extinguish their right to found a family (given the first applicant ’ s sentence and the second applicant ’ s age). They disputed the Secretary of State ’ s conclusion that there was insufficient financial provision for any child conceived: the second applicant would not be dependent on State benefits (she owned a property worth 200,000 pounds sterling (GBP), was following a course in counselling and, on qualification, would be able to command an hourly rate of GBP 30 ). It was unfair to state that their relationship had not been tested: the strength of any relationship (prisoner or other) was uncertain, there was no link between imprisonment and dissolution of relationships and, indeed, the first applicant ’ s imprisonment had not weakened their relationship. In any event, this latter argument was circuitous as it could automatically negate any request for artificial insemination facilities from such long-term prisoners. It was equally unjust and circular to argue that the first applicant would be initially absent: long- term absence was a necessary starting- point to apply for the requested facilities (artificial insemination being the only means of conception ) but at the same time it meant artificial insemination could not be granted (given the consequent separation from any child conceived). It did not make sense that their marriage was accepted as rehabilitative and to be supported by the system but that the right to procreate was not.", "56. Finally, even if the Policy had some application, in the present case unjustifiably, to the first applicant, the same could not be said of the second applicant who was not in prison, a point with which the Court of Appeal, the Government and the Chamber had failed to grapple. She initially maintained that, since she was not a prisoner, the Policy could have no application to her so there were no competing rights which could override hers. However, before the Grand Chamber she accepted that her position could not be considered entirely independently of the first applicant ’ s and that her rights could not trump all others: however she maintained that she should have the right to beget a child with her husband unless there were exceptional reasons against that ( for example, if the father was a convicted child murderer). However she was prevented from doing so by a blanket and unconvincing Policy, which had even less relevance to her as a non- prisoner. The extinguishment of her Article 8 rights required a particularly robust justification.", "2. Article 12 of the Convention", "57. Whereas the applicants had accepted before the Chamber that a conclusion of no violation under Article 8 would lead to the same conclusion under Article 12 of the Convention, they maintained before the Grand Chamber that the complaints under Articles 8 and 12 were separate and should be examined as such.", "C. The Government ’ s submissions", "1. Article 8 of the Convention", "58. The Government relied on the Chamber ’ s judgment and argued, for the reasons given in that judgment and by the Court of Appeal, that there had been no violation of Article 8 of the Convention.", "While the Chamber recognised the “well established” principle that, liberty apart, prisoners continued to enjoy all Convention rights including the right to respect for private and family life ( see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX ), it had also accepted that imprisonment inevitably and necessarily involved some limitation on an individual ’ s rights. The Chamber had also accepted that the case concerned the fulfilment of a positive obligation to which a wide margin of appreciation applied and that, in the overall balancing of individual and public interests required, the public legitimate aims were the maintenance of public confidence in the penal system and the interests of any child conceived and, thus, those of society as a whole. The Policy, and its application in the applicants ’ case, was not disproportionate to those aims.", "59. The Chamber judgment was consistent with the Court ’ s case-law ( see, notably, Golder v. the United Kingdom, 21 February 1975, § 45, Series A no. 18) and with that of the Commission (referred to by the Court of Appeal – see paragraph 24 above – in the above- mentioned Mellor case ). The Chamber judgment and that of the Court of Appeal in the above- mentioned Mellor case were also consistent. Finally, the Chamber judgment mirrored the justification given by the Court of Appeal for the Policy and its application in the present case.", "60. The Government further maintained that the Policy was consistent with the Convention.", "It was not a blanket policy but one that enabled the examination of the merits of each case taking into account Convention principles. The statistics demonstrated that the individual assessment was genuine: 28 applications for artificial insemination facilities had been made since 1996, 12 were not pursued, 1 was withdrawn as the relationship had broken down, 1 applicant was released on parole and 2 were pending. Of the remaining 12 applications, 3 were granted and 9 were refused.", "The Policy ’ s justification was to be found in three principles: losing the opportunity to beget children was part and parcel of the deprivation of liberty and an ordinary consequence of imprisonment; public confidence in the prison system were to be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners to conceive children (in that latter context, the nature and gravity of the crime was relevant); and the inevitable absence of one parent, including that parent ’ s financial and other support, for a long period would have negative consequences for the child and for society as a whole. This latter point was indeed a complex and controversial one, underlining why the State authorities were best placed to make this assessment. It was legitimate that the State considered implications for any children conceived so that one of the aims of the Policy was to limit the grant of artificial insemination facilities to those who could reasonably be expected to be released into a stable family setting and play a parental role. Indeed, the State had an obligation to ensure effective protection and the moral and material welfare of children.", "61. Accordingly, the starting- point was that artificial insemination facilities would be granted in exceptional circumstances, namely when its refusal would prevent the founding of a family altogether and, thereafter, the authorities would take into account other factors determinative of exceptionality. That starting- point was, in the Government ’ s view, a reasonable one. It would be frequently the case that the refusal of artificial insemination facilities would not affect rights guaranteed by Article 8. This would be the case, for example, where a child was conceived in whose life the father would, as a consequence of his imprisonment, have no real involvement, the mere right to procreate not being a Convention right. It would only be in unusual circumstances that the duration of imprisonment would, without artificial insemination, prevent a prisoner from having children after his release. While the Government recognised that rehabilitation was a fundamental and important aspect of imprisonment, the Policy took account of all relevant elements.", "62. Moreover, the Policy was correctly applied in the present case, the authorities having identified the relevant factors and struck a fair balance. That the applicants would not otherwise be able to conceive was outweighed by the reasons relied upon by the Secretary of State: the lack of an established relationship; the first applicant ’ s long absence from the life of any child; insufficient material provision foreseen for the child and little by way of a support network for the second applicant; and legitimate public concern that the punitive and deterrent elements of a sentence would be circumvented if the first applicant (convicted of a violent murder) was allowed to father a child. The interests taken into account included those of the second applicant, including her wish to have a child with the first applicant: however, the fact was that her position was linked to that of the first applicant and, if her interests were to be the decisive factor, the State would be left with no discretion whatsoever.", "63. Finally, the Government maintained that they should be afforded a wide margin of appreciation – the case involving as it did a claim that the State should take positive steps to circumvent the otherwise inevitable consequences of imprisonment to assist the parties to conceive – in an area of social policy where difficult choices had to be made between the rights of an individual and the needs of society. As explained above, this was not a blanket policy and there did not appear to be any European consensus in favour of the provision of facilities for artificial insemination of prisoners.", "2. Article 12 of the Convention", "64. The Government relied on the Chamber judgment and maintained that there was no violation of Article 8 so that there could equally be no violation of Article 12 of the Convention.", "D. The Court ’ s assessment of the complaint under Article 8 of the Convention", "1. Applicability of Article 8", "65. The restriction in issue in the present case concerned the refusal to the applicants of facilities for artificial insemination. The parties did not dispute the applicability of Article 8, although before the Grand Chamber the Government appeared to suggest that Article 8 might not apply in certain circumstances: where, for example, a prisoner ’ s sentence was so long that there was no expectation of ever “taking part” in the life of any child conceived and Article 8 did not guarantee a right to procreate.", "66. The Court considers that Article 8 is applicable to the applicants ’ complaints in that the refusal of artificial insemination facilities concerned their private and family lives, which notions incorporate the right to respect for their decision to become genetic parents (see E.L.H. and P.B.H. v. the United Kingdom, nos. 32094/96 and 3256 8/96, Commission decision of 22 October 1997, DR 91-A, p. 61; Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI; Aliev v. Ukraine, no. 41220/98, § 187- 89, 29 April 2003; and Evans v. the United Kingdom [GC], no. 6339/05, § 71 ‑ 72, ECHR 2007 - I ).", "2. Relevant general principles", "67. The Court notes the above- mentioned Hirst judgment, which concerned a legislative restriction on prisoners ’ right to vote:", "“69. In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or conditions contrary to Article 3 of the Convention (see, among many authorities, Kalashnikov v. Russia, no. 47095/99, ECHR 2002 ‑ VI; Van der Ven v. the Netherlands, no. 50901/99, ECHR 2003 ‑ II); they continue to enjoy the right to respect for family life ( Ploski v. Poland, no. 26761/95, judgment of 12 November 2002; X. v. the United Kingdom, no. 9054/80, Commission decision of 8 October 1982, DR 30, p. 113), the right to freedom of expression ( Yankov v. Bulgaria, no. 39084/97, §§ 126-145, ECHR 2003 ‑ XII, T. v. the United Kingdom, no. 8231/78, Commission report of 12 October 1983, DR 49, p. 5, §§ 44-84), the right to practise their religion ( Poltoratskiy v. Ukraine, no. 38812/97, §§ 167-171, ECHR 2003 ‑ V ), the right of effective access to a lawyer or to court for the purposes of Article 6 ( Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A, no. 80; Golder v. the United Kingdom, judgment of 21 February 1975, Series A, no. 18), the right to respect for correspondence ( Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61) and the right to marry ( Hamer v. the United Kingdom, no. 7114/75, Commission report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission report of 10 July 1980, DR 24, p. 72). Any restrictions on these other rights require to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see, for example, Silver, cited above, §§ 99-105, where broad restrictions on the right of prisoners to correspond fell foul of Article 8 but stopping of specific letters, containing threats or other objectionable references were justifiable in the interests of the prevention of disorder or crime).", "70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.", "71. This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol No. 1, which enshrines the individual ’ s capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations (see, for example, no. 6573/74, cited above; and, mutatis mutandis, Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, DR 18, p. 187, where the Commission declared inadmissible two applications concerning the refusal to allow the applicants, who were the leaders of a proscribed organisation with racist and xenophobic traits, to stand for election). The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. ... ”", "68. Accordingly, a person retains his or her Convention rights on imprisonment, so that any restriction on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment (§ 27 of the Chamber judgment) or (as accepted by the applicants before the Grand Chamber) from an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion.", "3. Negative or positive obligations", "69. The parties disagreed as to whether the refusal of the requested facilities constituted an interference with the applicants ’ existing right to beget a child (to be analysed in the context of the State ’ s negative obligations) or a failure by the State to grant a right which did not previously exist (an alleged positive obligation). The Chamber considered that the applicants ’ complaints fell to be analysed as a positive obligation.", "70. The Court observes that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests ( see Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003 ‑ III, and Evans, cited above, § 75).", "71. The Court does not consider it necessary to decide whether it would be more appropriate to analyse the case as one concerning a positive or a negative obligation since it is of the view that the core issue in the present case (see paragraphs 7 7 - 8 5 below) is precisely whether a fair balance was struck between the competing public and private interests involved.", "4. The conflicting individual and public interests", "72. As to the applicants ’ interests, it was accepted domestically that artificial insemination remained the only realistic hope of the applicants, a couple since 1999 and married since 2001, of having a child together given the second applicant ’ s age and the first applicant ’ s release date. The Court considers it evident that the matter was of vital importance to the applicants.", "73. The Government have cited three justifications for the Policy.", "74. Before the Grand Chamber they first relied on the suggestion that losing the opportunity to beget children was an inevitable and necessary consequence of imprisonment.", "Whilst the inability to beget a child might be a consequence of imprisonment, it is not an inevitable one, it not being suggested that the grant of artificial insemination facilities would involve any security issues or impose any significant administrative or financial demands on the State.", "75. Secondly, before the Grand Chamber the Government appeared to maintain, although did not emphasise, another justification for the Policy, namely that public confidence in the prison system would be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners guilty of certain serious offences to conceive children.", "The Court, as the Chamber, reiterates that there is no place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic forfeiture of rights by prisoners based purely on what might offend public opinion ( see Hirst, cited above, § 70). However, the Court could accept, as did the Chamber, that the maintaining of public confidence in the penal system has a role to play in the development of penal policy. The Government also appeared to maintain that the restriction, in itself, contributed to the overall punitive objective of imprisonment. However, and while accepting that punishment remains one of the aims of imprisonment, the Court would also underline the evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence (see paragraphs 28- 36 above).", "76. Thirdly, the Government argued that the absence of a parent for a long period would have a negative impact on any child conceived and, consequently, on society as a whole.", "The Court is prepared to accept as legitimate for the purposes of the second paragraph of Article 8 that the authorities, when developing and applying the Policy, should concern themselves as a matter of principle with the welfare of any child: conception of a child was the very object of the exercise. Moreover, the State has a positive obligation to ensure the effective protection of children ( see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III; Osman v. the United Kingdom, 28 October 1998, § 115- 16, Reports 1998 ‑ VIII; and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V ). However, that cannot go so far as to prevent parents who so wish from attempting to conceive a child in circumstances like those of the present case, especially as the second applicant was at liberty and could have taken care of any child conceived until such time as her husband was released.", "5. Balancing the conflicting interests and the margin of appreciation", "77. Since the national authorities make the initial assessment as to where the fair balance lies in a case before a final evaluation by this Court, a certain margin of appreciation is, in principle, accorded by this Court to those authorities as regards that assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions ( see Smith and Grady v. the United Kingdom, nos. 33 985/96 and 33986/96, § 88, ECHR 1999 ‑ VI ).", "78. Accordingly, where a particularly important facet of an individual ’ s existence or identity is at stake (such as the choice to become a genetic parent), the margin of appreciation accorded to a State will in general be restricted.", "Where, however, there is no consensus within the member States of the Council of Europe either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy : the authorities ’ direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest. In such a case, the Court would generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation”. There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights ( see Evans, cited above, § 77).", "79. Importantly, in its Hirst judgment, the Court commented that while there was no European consensus on the point so that a wide margin of appreciation applied, it was not all-embracing. It found that neither the legislature nor the judiciary had sought to weigh the competing interests or assess the proportionality of the relevant restriction on prisoners. That restriction was considered to be “a blunt instrument” which indiscriminately stripped a significant category of prisoners of their Convention rights and it imposed a blanket and automatic restriction on all convicted prisoners irrespective of the length of their sentence, the nature or gravity of their offence or of their individual circumstances. The Court continued in Hirst ( § 82):", "“Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.”", "80. In the present case, the parties disputed the breadth of the margin of appreciation to be accorded to the authorities. The applicants suggested that the margin had no role to play since the Policy had never been subjected to parliamentary scrutiny and allowed for no real proportionality examination. The Government maintained that a wide margin of appreciation applied given the positive obligation context, since the Policy was not a blanket one and since there was no European consensus on the subject.", "81. The Court notes, as to the European consensus argument, that the Chamber established that more than half of the Contracting States allow for conjugal visits for prisoners (subject to a variety of different restrictions), a measure which could be seen as obviating the need for the authorities to provide additional facilities for artificial insemination. However, while the Court has expressed its approval for the evolution in several European countries towards conjugal visits, it has not yet interpreted the Convention as requiring Contracting States to make provision for such visits (see Aliev, cited above, § 188). Accordingly, this is an area in which the Contracting States could enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals.", "82. However, and even assuming that the judgment of the Court of Appeal in the Mellor case amounted to judicial consideration of the Policy under Article 8 ( despite its pre-incorporation and judicial review context, see paragraphs 23-26 above), the Court considers that the Policy as structured effectively excluded any real weighing of the competing individual and public interests, and prevented the required assessment of the proportionality of a restriction, in any individual case.", "In particular, and having regard to the judgment of Lord Phillips in the Mellor case and of Auld LJ in the present case, the Policy placed an inordinately high “exceptionality” burden on the applicants when requesting artificial insemination facilities ( see paragraphs 13, 15-17 and 23-26 above). They had to demonstrate, in the first place, as a condition precedent to the application of the Policy, that the deprivation of artificial insemination facilities might prevent conception altogether (the “starting- point”). Secondly, and of even greater significance, they had to go on to demonstrate that the circumstances of their case were “exceptional” within the meaning of the remaining criteria of the Policy ( the “ finishing- point”). The Court considers that even if the applicants ’ Article 8 complaint was before the Secretary of State and the Court of Appeal, the Policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the Convention ( see, mutatis mutandis, Smith and Grady, cited above, § 138 ).", "83. In addition, there is no evidence that when fixing the Policy the Secretary of State sought to weigh the relevant competing individual and public interests or assess the proportionality of the restriction. Further, since the Policy was not embodied in primary legislation, the various competing interests were never weighed, nor issues of proportionality ever assessed, by Parliament (see Hirst, § 79, and Evans, §§ 86-89, both cited above ). Indeed, the Policy was adopted, as noted in the judgment of the Court of Appeal in the Mellor case ( see paragraph 23 above), prior to the incorporation of the Convention into domestic law.", "84. The Policy may not amount to a blanket ban such as was in issue in the Hirst case since in principle any prisoner could apply and, as demonstrated by the statistics submitted by the Government, three couples did so successfully. Whatever the precise reason for the dearth of applications for such facilities and the refusal of the majority of the few requests maintained, the Court does not consider that the statistics provided by the Government undermine the above finding that the Policy did not permit the required proportionality assessment in an individual case. Neither was it persuasive to argue, as the Government did, that the starting- point of exceptionality was reasonable since only a few persons would be affected, implying as it did the possibility of justifying the restriction of the applicants ’ Convention rights by the minimal number of persons adversely affected.", "85. The Court therefore finds that the absence of such an assessment as regards a matter of significant importance for the applicants (see paragraph 7 2 above ) must be seen as falling outside any acceptable margin of appreciation so that a fair balance was not struck between the competing public and private interests involved. There has, accordingly, been a violation of Article 8 of the Convention.", "E. The Court ’ s assessment of the complaint under Article 12 of the Convention", "86. The Court considers, as did the Chamber, that no separate issue arises under Article 12 of the Convention and that it is not therefore necessary also to examine the applicants ’ complaint under this provision ( see E.L.H. and P.B.H. v. the United Kingdom, cited above, and Boso v. Italy (dec.), no. 50490/99, ECHR 2002- VII).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "87. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "88. The applicants requested a declaration that the Policy concerning facilities in prisons for artificial insemination was contrary to the Convention and, further, that the Court direct or request the respondent State to give urgent consideration to a renewed request for artificial insemination facilities.", "89. The Court ’ s function is, in principle, to rule on the compatibility with the Convention of the existing measures and it does not consider it appropriate in the present case to issue the requested direction ( see Hirst, cited above, § 83).", "A. Non- pecuniary damage", "90. The applicants sought compensation as regards the distress suffered by them having regard to the delay since their initial domestic application for the relevant facilities and the reduced chances of the second applicant conceiving a child. They did not specify a particular sum. Alternatively, they suggested that the question of any compensation be adjourned to see if the second applicant were to conceive and/or to obtain an expert report on the effect of delay on the chances of conception.", "The Government submitted that there was no specific evidence of distress over and above the normal concern of any party to litigation and, further, that the submission about the second applicant ’ s reduced chances of conceiving was speculative. In the Government ’ s view, a finding of a violation would constitute sufficient just satisfaction.", "91. The Court does not consider it useful to adjourn its examination of this aspect of the applicants ’ claims under Article 41 of the Convention. It is further of the view that there is no causal link between the violation established (refusal of the requested facilities without an assessment complying with Article 8) and the damage alleged (the applicants ’ failure to conceive a child) having regard, inter alia, to the nature of conception and the second applicant ’ s age even when she initially applied for the facilities in December 2002.", "92. However, the Court has found that, in applying the Policy, the domestic authorities did not take adequate account of the interests of the applicants on a matter of vital importance to them (paragraph 7 2 above). In such circumstances, the Court considers it evident that this failure was, and continues to be, frustrating and distressing for the applicants. The Court therefore awards, on an equitable basis, 5, 000 euros (EUR) in total to the applicants in compensation for the non-pecuniary damage suffered, to be converted into pounds sterling at the rate applicable on the date of settlement.", "B. Costs and expenses", "93. The applicants claimed reimbursement of their legal costs and expenses as regards their solicitor and their counsel at a rate of 250 pounds sterling (GBP) per hour. As to their solicitor, they claimed for almost 21 hours ’ work (of which 13 concerned the Grand Chamber) as well as for his attendance ( 2 days) at the hearing before the Grand Chamber. They also claimed for the costs of 110 letters and telephone calls at GBP 25 per letter/call. They further claimed for 31 hours of work by counsel (of which 22 concerned the Grand Chamber) as well as for counsel ’ s attendance at the hearing (also 2 days). With value-added tax (VAT) at 17.5%, the overall legal costs and expenses claim amounted to GBP 24,733.75.", "The Government maintained that the hourly rate of GBP 250 (for both the barrister and solicitor) was excessive, particularly as neither was based in London. Any nationally approved fee levels were not relevant in this regard and the Court should allow an hourly rate of no more than half the above-noted amount. In the Government ’ s view, the number of hours for which fees were claimed was also excessive, particularly since the solicitor appeared in some respects to duplicate work done by counsel. The Court should, the Government concluded, award no more than GBP 8,000 in total in respect of legal costs and expenses.", "94. The Court notes that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX).", "95. The Court finds that the claims may be regarded as somewhat high, in particular having regard to the claim for 2 days ’ professional costs of a solicitor and of counsel for the Grand Chamber hearing which lasted one morning and noting that the bill of costs vouching counsel ’ s costs omitted 22 hours of Grand Chamber work otherwise listed in the overall itemised bill of costs for which the applicants claimed reimbursement. Although significant work was necessarily involved in the preparation for and attendance at the Grand Chamber hearing, it finds the amounts claimed for the period after the Chamber judgment excessive. It also finds the hourly charge- out rate to be high. In the applicants ’ favour, it is noted that the applicants ’ essential concern, and the bulk of the argument, centred on their successful complaint about the Policy ’ s compliance with Article 8 of the Convention.", "96. In light of the circumstances of the case, the Court awards legal costs and expenses in the amount of EUR 2 1 ,000, inclusive of VAT and less EUR 2, 148.09 in legal aid paid by the Council of Europe, to be converted into pounds sterling on the date of settlement.", "C. Default interest", "97. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R.", "10. The first applicant is married to the second applicant and the third applicant to the fourth applicant.", "11. The first applicant suffers from fallopian-tube-related infertility ( eileiterbedingter Sterilität ). She produces ova, but, due to her blocked fallopian tubes, these cannot pass to the uterus, so natural fertilisation is impossible. The second applicant, her husband, is infertile.", "12. The third applicant suffers from agonadism ( Gonadendys ­ genesie ), which means that she does not produce ova at all. Thus, she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation.", "13. On 4 May 1998 the first and third applicants lodged an application ( Individual ­ antrag ) with the Constitutional Court ( Verfassungs ­ gerichtshof ) for a review of the constitutionality of sections 3(1) and 3(2) of the Artificial Procreation Act ( Fortpflanzungs ­ medizingesetz – see paragraphs 27-34 below).", "14. The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus, the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by sections 3(1) and 3(2) of the Artificial Procreation Act. The third applicant submitted that she was infertile. As she suffered from agonadism, she did not produce ova at all. Thus, the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryo transfer, which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant. However, that method was not allowed under the Artificial Procreation Act.", "15. The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception amounted to a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Austrian Federal Constitution, which guarantees equal treatment.", "16. On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated.", "17. On 14 October 1999 the Constitutional Court decided on the first and third applicants’ request. It found that their request was partly admissible in so far as the wording concerned their specific case. In this respect, it found that the provisions of section 3 of the Artificial Procreation Act, which prohibited the use of certain procreation techniques, was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken.", "18. As regards the merits of their complaints, the Constitutional Court considered that Article 8 of the Convention was applicable in the applicants’ case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court’s view, that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under Article 8.", "19. The impugned provisions of the Artificial Procreation Act interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation. As for the justification for such an interference, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, had tried to find a solution by balancing the conflicting interests of human dignity, the right to procreation and the well-being of children. Thus, it had enacted as leading features of the legislation that, in principle, only homologous methods – such as using ova and sperm from the spouses or from the cohabiting couple itself – and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed. The aim of the legislature was to avoid the forming of unusual family relationships, such as a child having more than one biological mother (a genetic mother and one carrying the child), and to avoid the risk of the exploitation of women.", "20. The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well-being of children thus conceived, their health and their rights, and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction ( Zuchtauswahl ).", "21. However, applying the principle of proportionality under Article 8 § 2 of the Convention, such concerns could not lead to a total ban on all possible medically assisted procreation techniques, as the extent to which public interests were concerned depended essentially on whether a homologous technique (having recourse to the gametes of the couple) or heterologous technique (having recourse to gametes external to the couple) was used.", "22. In the Constitutional Court’s view, the legislature had not overstepped the margin of appreciation afforded to member States when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception. The choices the legislature had made reflected the then current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislature would have to take into account in the future.", "23. The legislature had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques. Besides strictly homologous techniques it had accepted insemination using donor sperm. Such a technique had been known and used for a long time and would not bring about unusual family relationships. Further, the use of these techniques was not restricted to married couples but also included cohabiting couples. However, the interests of the individuals concerned had to give way to the above-mentioned public interest when a child could not be conceived by having recourse to homologous techniques.", "24. The Constitutional Court also found that for the legislature to prohibit heterologous techniques, while accepting as lawful only homologous techniques, was not in breach of the constitutional principle of equality which prohibits discrimination. The difference in treatment between the two techniques was justified because, as pointed out above, the same objections could not be raised against the homologous method as against the heterologous one. As a consequence, the legislature was not bound to apply strictly identical regulations to both. Also, the fact that insemination in vivo with donor sperm was allowed while ovum donation was not, did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual family relationships which might adversely affect the well-being of a future child.", "25. Since the impugned provisions of the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention.", "26. This decision was served on the first and third applicants’ lawyer on 8 November 1999." ]

[ "II. RELEVANT LEGAL MATERIALS", "A. Domestic law: the Artificial Procreation Act", "27. The Artificial Procreation Act ( Fortpflanzungs ­ medizingesetz, Federal Law Gazette no. 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)).", "28. These methods comprise: (i) introduction of sperm into the reproductive organs of a woman; (ii) unification of ovum and sperm outside the body of a woman; (iii) introduction of viable cells into the uterus or fallopian tube of a woman; and (iv) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman (section 1(2)).", "29. Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage, and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success (section 2).", "30. Under section 3(1), only ova and sperm from spouses or from persons living in a relationship similar to marriage ( Lebensgefährten ) may be used for the purpose of medically assisted procreation. In exceptional circumstances, namely if the spouse or male partner is infertile, sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman (section 3(2)). This is called in vivo fertilisation. In all other circumstances, and in particular for the purpose of in vitro fertilisation, the use of donor sperm is prohibited.", "31. Under section 3(3), ova or viable cells may only be used for the woman from whom they originate. Thus, ovum donation is always prohibited.", "32. The further provisions of the Artificial Procreation Act stipulate, inter alia, that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries (section 4) and with the express and written consent of the spouses or cohabiting persons (section 8).", "33. In 1999 the Artificial Procreation Act was supplemented by a Federal Act establishing a fund for financing in vitro fertilisation treatment ( Bundesgesetz, mit dem ein Fonds zur Finanzierung der In-vitro-Fertilisation eingerichtet wird – Federal Law Gazette, Part I, no. 180/1999) in order to subsidise in vitro fertilisation treatment allowed under the Artificial Procreation Act.", "34. The issue of maternity and paternity is regulated in the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ). Under Article 137b, introduced at the same time as the entry into force of the Artificial Procreation Act, the mother of a child is the woman who has given birth to that child. As regards paternity, Article 163 provides that the father of a child is the male person who has had sexual intercourse with the mother within a certain period of time (180 to 300 days) before the birth. If the mother has undergone medically assisted procreation treatment using sperm from a donor, the father is the person who has given his consent to that treatment, that is, the spouse or male partner. A sperm donor can in no circumstances be recognised as the father of the child.", "B. The position in other countries", "35. The following overview of the law and practice concerning artificial procreation in Europe is based essentially on the following documents: “Medically Assisted Procreation and the Protection of the Human Embryo: Comparative Study on the Situation in 39 States” (Council of Europe, 1998); the replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on access to medically assisted procreation (MAP) and on right to know about their origin for children born after MAP” (Council of Europe, 2005); and a survey carried out in 2007 by the International Federation of Fertility Societies.", "36. From this material it would appear that in vitro fertilisation treatment was (as at 2007) regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Ireland, Lithuania, Malta, Poland, Serbia and Slovakia such treatment was governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.", "37. The Council of Europe study sets out, in particular, the position of domestic law as regards seven different artificial procreation techniques: artificial insemination within a couple, in vitro fertilisation within a couple, artificial insemination by a sperm donor, ovum donation, ovum and sperm donation, embryo donation and intracytoplasmic sperm injection (an in vitro fertilisation procedure in which a single sperm is injected directly into an ovum).", "38. It seems that among the countries which have regulated the issue of artificial procreation, sperm donation is currently prohibited in Italy, Lithuania and Turkey. All three countries do not permit heterologous assisted fertilisation. Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation. As regards ovum donation, this is prohibited in Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above.", "39. It further appears that in a number of countries, such as Cyprus, Luxembourg, Poland, Portugal and Romania, where the matter was not regulated (as at 2007), the donation of both sperm and ova is used in practice.", "40. A comparison between the Council of Europe study of 1998 and the survey conducted by the International Federation of Fertility Societies in 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden, sperm and ovum donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway, sperm donation for in vitro fertilisation has been allowed since 2003, but not ovum donation. Since 2007, medically assisted procreation is also regulated by law in Finland allowing sperm and ovum donation.", "C. Council of Europe instruments", "41. Principle 11 of the principles adopted in 1989 by the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI), the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics, states:", "“1. In principle, in vitro fertilisation shall be effected using gametes of the members of the couple. The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro. However, in exceptional cases defined by the member States, the use of gametes of donors may be permitted.”", "42. The Council of Europe Convention on Human Rights and Biomedicine of 1997 does not deal with the question of donation of gametes, but forbids the use of medically assisted reproduction techniques to choose the sex of a child. Article 14 reads as follows:", "“The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided.”", "43. The Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin of 2002, which promotes the donation of organs, expressly excludes from its scope reproductive organs and tissues.", "D. European Union instruments", "44. Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on the setting of standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, which seeks to ensure the quality and safety aspects of human tissues and cells intended for human applications, provides in its Preamble as follows:", "“12. This directive should not interfere with decisions made by member States concerning the use or non-use of any specific type of human cells, including germ cells and embryonic stem cells. If, however, any particular use of such cells is authorised in a member State, this directive will require the application of all provisions necessary to protect public health, given the specific risks of these cells based on the scientific knowledge and their particular nature, and guarantee respect for fundamental rights. Moreover, this directive should not interfere with provisions of member States defining the legal term ‘person’ or ‘individual’.”", "THE LAW", "I. THE GOVERNMENT’S PRELIMINARY OBJECTION", "45. The Government argued, as they had done before the Chamber, that the second and fourth applicants, the husbands of the first and third applicants respectively, had failed to exhaust domestic remedies as required by Article 35 of the Convention because they had failed to lodge an application themselves with the Constitutional Court for review of the constitutionality of section 3 of the Artificial Procreation Act.", "46. This was disputed by the applicants, who referred to the decision on admissibility of 15 November 2007 in which the Court rejected the Government’s objection of non-exhaustion and which, in their view, settled this matter definitively.", "47. The Grand Chamber observes that the Chamber rejected the Government’s objection of non-exhaustion as regards the second and fourth applicants in its decision on admissibility of 15 November 2007. In that decision it stated as follows:", "“The Court reiterates that the application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. The rule is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that the Court must take realistic account of the general legal and political context in which the remedies operate, as well as the personal circumstances of the applicant (see Menteş and Others v. Turkey, 28 November 1997, § 58, Reports of Judgments and Decisions 1997-VIII).", "The Court observes that the first and third applicants applied to the Constitutional Court for a review of the constitutionality of section 3 of the Artificial Procreation Act. In these proceedings they showed that they had, together with their spouses, taken a firm decision to undergo a process of medically assisted procreation as given their medical condition natural conception of a child was not possible, and that they were therefore directly affected by the prohibition at issue. Although the second and fourth applicants, their spouses, did not participate in the proceedings before the Constitutional Court, their personal situation was intrinsically linked to that of their spouses. Thus, the Court finds it sufficient that the latter have instituted the proceedings and put their case and consequently also their spouses’ case before the competent domestic court.", "The Court therefore concludes that all the applicants have exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.”", "48. The Grand Chamber does not see any reason to come to a different conclusion from the Chamber. Accordingly, the Government’s preliminary objection must be rejected.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "49. The applicants complained that the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by sections 3(1) and 3(2) of the Artificial Procreation Act had violated their rights under Article 8 of the Convention.", "50. The relevant parts of Article 8 of the Convention provide:", "“1. Everyone has the right to respect for his private and family life, ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber judgment", "51. In its judgment of 1 April 2010, the Chamber held that there had been a violation of Article 14 of the Convention read in conjunction with Article 8 in respect of the first and second applicants as well as in respect of the third and fourth applicants.", "52. The Chamber found that Article 14 of the Convention read in conjunction with Article 8 was applicable to the case since the right of a couple to conceive a child and to make use of medically assisted procreation for that end came within the ambit of Article 8 as such a choice was clearly an expression of private and family life.", "53. As regards compliance with Article 14, the Chamber observed that in view of the lack of a uniform approach to this question by the Contracting States and the nature of the sensitive moral and ethical issues involved, the Contracting States enjoyed a wide margin of appreciation in this field. This wide margin of appreciation in principle extended both to its decision to intervene in the area and, once having intervened, to the detailed rules it lay down in order to achieve a balance between the competing public and private interests. The Chamber examined the situation of the first and second applicants and the third and fourth applicants separately.", "54. With regard to the situation of the third and fourth applicants, who needed ovum donation in order to fulfil their wish for a child, the Chamber found that concerns based on moral considerations or on social acceptability were not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique in general and that only in exceptional circumstances would such a complete ban be a proportionate measure. The Chamber found that in respect of the risks of ovum donation invoked by the Government, such as the risk of the exploitation of women, particularly those from economically disadvantaged backgrounds, or the “selection” of children, the Artificial Procreation Act itself already contained sufficient safeguards. In respect of the other specific concerns indicated by the Government, such as the creation of unusual family relationships by splitting motherhood between a genetic mother and a biological mother, these problems could be overcome by enacting appropriate legislation. The Chamber therefore concluded that there had been a violation of Article 14 of the Convention read in conjunction with Article 8.", "55. With regard to the situation of the first and second applicants, who needed sperm donation for in vitro fertilisation in order to fulfil their wish for a child, the Chamber observed, firstly, that this artificial procreation technique combined two techniques which, taken alone, were allowed under the Artificial Procreation Act, namely, in vitro fertilisation with ova and sperm of the couple itself on the one hand, and sperm donation for in vivo conception on the other hand. A prohibition of the combination of these lawful techniques thus required particularly persuasive arguments. Most of the arguments put forward by the Government were, however, not specific to sperm donation for in vitro fertilisation. As regards the Government’s argument that non- in vitro artificial insemination had been in use for some time, that it was easy to handle and its prohibition would therefore have been hard to monitor, the Chamber found that a question of mere efficiency carried less weight than the particularly important interests of the private individuals involved and concluded that the difference in treatment at issue was not justified. The Chamber concluded that there had been a violation of Article 14 of the Convention read in conjunction with Article 8 in that respect as well.", "B. The parties’ submissions", "1. The applicants", "56. In the applicants’ view, Article 8 of the Convention was applicable in their case. They submitted further that the impugned legislation constituted a direct interference with their rights under Article 8 because, in the absence of such legislation, the medical treatment they were seeking – in vitro fertilisation with donated ova or sperm – would have been a common and readily available medical technique which had made considerable progress over the previous years and had become far more reliable than in the past. Thus, there was no question of a positive obligation, but of a classic case of interference, which was not necessary in a democratic society and was disproportionate.", "57. Because of the special importance of the right to found a family and the right to procreation, the Contracting States enjoyed no margin of appreciation at all in regulating these issues. The decisions to be taken by couples wishing to make use of artificial procreation concerned the most intimate sphere of their private life and therefore the legislature should show particular restraint in regulating these matters.", "58. All the arguments raised by the Government were against artificial procreation in general and were therefore not persuasive when it came to allowing some procreation techniques while rejecting others. The risk of the exploitation of female donors, to which the Government referred, was not relevant in circumstances such as those in the present case. To combat any potential abuse, it would be sufficient to forbid remunerated ovum or sperm donation; such a prohibition already existed in Austrian legislation. Also, the argument that ovum donation led to unusual family relationships in which motherhood of a child conceived through artificial procreation was split between the genetic mother and the mother who gave birth to the child and led to emotional stress for the child was not persuasive, as today many children grew up in family situations in which they were genetically related to only one of the parents.", "59. The applicants submitted further that the system applied under the Artificial Procreation Act was incoherent and illogical, since there was no blanket prohibition on heterologous forms of medically assisted procreation because exceptions were made for sperm donation in relation to specific techniques. The reasons for this difference in treatment were not persuasive. In this context, it should be noted that there existed a public fund for financing in vitro fertilisation, apparently because use of this technique was in the public interest, while at the same time severe restrictions were imposed on its use.", "60. With regard to the legal situation of artificial procreation in the Contracting States, the applicants argued that there was now a consensus that ovum and sperm donation should be allowed. Thus, the prohibition of ovum and sperm donation under Austrian law was in breach of Article 8 of the Convention.", "2. The Government", "61. As regards the applicability of Article 8 of the Convention, the Government referred to the findings of the Constitutional Court that the private life aspect within the meaning of Article 8 § 1 also covered the desire of couples or life companions to have children as one of the essential forms of expression of their personality as human beings. They therefore accepted that Article 8 was applicable to the proceedings at issue.", "62. In the Government’s view, the question whether the measure at issue should be deemed to be an interference by a public authority or an alleged breach of a positive duty could be left open because both obligations were subject to the same principles. In both instances a fair balance had to be struck between the competing private and public interests and in both contexts the State enjoyed a certain margin of appreciation, which, in the absence of a common standard established by the Contracting States, was a particularly wide one. In any event, the prohibition at issue had a legal basis in domestic law and pursued a legitimate aim, namely, the protection of the rights of others, in particular potential donors.", "63. In the Government’s view, the central issue in the case was not whether there could be any recourse at all to medically and technically assisted procreation and what limits the State could set in that respect, but to what extent the State must authorise and accept the cooperation of third parties in the fulfilment of a couple’s wish to conceive a child. Even though the right to respect for private life also comprised the right to fulfil the wish for a child, it did not follow that the State was under an obligation to permit indiscriminately all technically feasible means of reproduction or even to provide such means. In making use of the margin of appreciation afforded to them, the States had to decide for themselves what balance should be struck between the competing interests in the light of the specific social and cultural needs and traditions of their countries.", "64. The Austrian legislature, taking into account all the interests concerned, had struck a fair balance in line with Article 8 of the Convention. Such a balance allowed for medically assisted procreation while at the same time providing for certain limits where the stage reached in medical and social development did not yet permit the legal authorisation of in vitro fertilisation with the sperm or ova of third persons, as desired by the female applicants. The Artificial Procreation Act was therefore characterised by the intention to prevent negative repercussions and potential misuse and to employ medical advances for therapeutic purposes only and not for other objectives such as the “selection” of children, as the legislature could not and should not neglect the existing unease among large sections of society about the role and possibilities of modern reproductive medicine.", "65. After thorough preparation the legislature had found an adequate solution for the matter which took into account human dignity, the well-being of the child and the right to procreation. In vitro fertilisation opened up far-reaching possibilities for a selective choice of ova and sperm, which might ultimately lead to selective reproduction ( Zuchtauswahl ). This raised fundamental questions regarding the health of children thus conceived and born, touching essentially upon the general ethical and moral values of society.", "66. In the debate in Parliament it had been pointed out that ovum donation depended on the availability of ova and might lead to problematic developments, such as the exploitation and humiliation of women, in particular those from economically disadvantaged backgrounds. There was also the risk that pressure might be put on women undergoing in vitro fertilisation to provide more ova than strictly necessary for their own treatment to enable them to pay for it.", "67. In vitro fertilisation also raised the question of unusual family relationships in which the social circumstances deviated from the biological ones, namely, the division of motherhood into a biological aspect and an aspect of “carrying the child”, and perhaps also a social aspect. Lastly, account also had to be taken of the child’s legitimate interest in being informed about his or her actual descent, which, with donated sperm and ova, would in most cases be impossible. Where sperm or ova were donated within the framework of medically assisted procreation, the actual parentage of a child was not revealed in the register of births, marriages and deaths and the protective legal provisions governing adoptions were ineffective in the case of medically assisted procreation.", "68. The reasons for allowing in vivo artificial insemination, as set out in the explanatory report to the Government’s bill on the Artificial Procreation Act, were that because it was such an easily applicable procreation method, compared with others, it could not be monitored effectively. That technique had also already been in use for a long time. Thus, a prohibition of this simple technique would not have been effective and, consequently, would not constitute a suitable means of pursuing the objectives of the legislation effectively.", "C. The third-party interveners", "1. The German Government", "69. The German Government submitted that under section 1(1) of the German Embryo Protection Act ( Embryonen ­ schutzgesetz ) it was a punishable offence to place inside a woman an ovum not produced by her.", "70. This prohibition was intended to protect the child’s welfare by ensuring the unambiguous identity of the mother. Splitting motherhood into a genetic and a biological mother would result in two women having a part in the creation of a child and would run counter to the established principle of unambiguousness of motherhood which represented a fundamental and basic social consensus. Split motherhood was contrary to the child’s welfare because the resulting ambiguousness of the mother’s identity might jeopardise the development of the child’s personality and lead to considerable problems in his or her discovery of identity.", "71. There was also the danger that the biological mother, being aware of the genetic background, might hold the ovum donor responsible for any illness or handicap of the child and reject him or her. Another conflict which might arise and strain the genetic and biological mothers’ relationships with the child was that a donated ovum might result in the recipient getting pregnant while the donor herself failed to get pregnant by means of in vitro fertilisation. For all these reasons split motherhood constituted a serious threat to the welfare of the child which justified the existing prohibitions under the Embryo Protection Act.", "2. The Italian Government", "72. The Italian Government submitted that Italian legislation concerning medically assisted procreation differed fundamentally from Austrian legislation. Italian law prohibited generally the use of any heterologous methods of medically assisted procreation and, as regards homologous methods, made access to such treatment conditional on the couple being infertile.", "73. In the view of the Italian Government, Article 8 did not protect a person’s or a couple’s right to conceive a child and to make use of medically assisted procreation for that purpose. Thus, there was no positive obligation under that provision for Contracting States to make available to infertile couples all existing medical techniques of procreation. The lack of a European consensus on the question of medically assisted procreation conferred a wide margin of appreciation on the Contracting States, allowing them to make their own policy decisions on such a complex matter that had far-reaching scientific, legal, ethical and social implications. In vitro fertilisation, which had a direct effect on human life and the foundations of society, was clearly a highly sensitive matter on which no European consensus had been reached. Medically assisted procreation also involved serious risks. Gamete donation might lead to pressure on women on moderate incomes and encourage trafficking of ova. Scientific studies also showed that there was a link between in vitro fertilisation treatment and premature births. Lastly, to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society.", "3. Hera ONLUS and SOS Infertilità Onlus", "74. Hera ONLUS and SOS Infertilità Onlus argued that infertility had to be addressed as a human health issue. A limitation of access to heterologous in vitro fertilisation constituted a denial of access to available treatment and therefore an interference with the rights guaranteed by Article 8 of the Convention. In their view, a prohibition of access to heterologous medically assisted procreation was not necessary in order to prevent repercussions on a child’s psychological and social development. In view of the strict regulations on quality standards and monitoring established by the European Union, a complete ban on access to different types of heterologous treatment was not the best means available for striking a fair balance between the competing interests involved. There was also a further negative side-effect of the ban, namely the phenomenon of “procreative tourism”, which meant that couples seeking infertility treatment abroad were exposed to the risk of low-quality standards and of suffering from considerable financial and emotional stress.", "4. The European Centre for Law and Justice", "75. The European Centre for Law and Justice submitted that there was no positive obligation on member States to provide for medically assisted procreation techniques under the Convention. But even assuming that, by refusing to allow heterologous in vitro fertilisation treatment, the State interfered with the rights under Article 8 of the Convention, such interference was proportional.", "76. In its view, the Contracting States had a wide margin of appreciation regarding sensitive moral and ethical issues, since there was no European consensus on the matter. The European Centre for Law and Justice emphasised that Austria did not impose a blanket ban on medically assisted procreation, but allowed certain methods while other methods that were not allowed in Austria were readily available abroad. Moreover, couples suffering from infertility could also fulfil their wish for a child by adopting one.", "5. Aktion Leben", "77. Aktion Leben argued that in vitro fertilisation treatment using gametes by donors, in particular ova, led to considerable medical risks and led to the sensitive and problematic question of multiple parenthood. Moreover, ovum donation would increase the risk of the exploitation of women and the commercialisation of the female body, and necessitated a very risky medical intervention for the donors. The unusual family relationships thus created could adversely affect existing family and social relationships. In vitro fertilisation treatment might also lead to problems of identity of the child so conceived and, in the case of sperm donation, could create the risk of trauma for a child wanting to establish relations with his or her biological father.", "D. The Court’s assessment", "1. Applicability of Article 8", "78. The Government accepted that Article 8 was applicable to the case. In that connection, they referred to the findings of the Constitutional Court, which, in its judgment of 14 October 1999, held that the decision of spouses or a cohabiting couple to conceive a child and to make use of medically assisted procreation techniques for that purpose came within the scope of their right to respect for their private lives and accordingly fell within the sphere of protection of Article 8.", "79. The applicants agreed with the Government as to the applicability of Article 8 of the Convention.", "80. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B), the right to “personal development” (see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I) or the right to self-determination as such (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). It encompasses elements such as gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997-I), and the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I, and A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010).", "81. In Dickson v. the United Kingdom, which concerned the refusal to provide the applicants – a prisoner and his wife – with facilities for artificial insemination, the Court found that Article 8 was applicable in that the refusal of artificial insemination facilities at issue concerned their private and family lives which notions incorporate the right to respect for their decision to become genetic parents (see Dickson v. the United Kingdom [GC], no. 44362/04, § 66, ECHR 2007 ‑ V, with further references).", "82. The Court considers that the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by Article 8, as such a choice is an expression of private and family life. Article 8 of the Convention therefore applies to the present case.", "2. Positive obligation or interference with a right?", "83. In X, Y and Z v. the United Kingdom (22 April 1997, § 44, Reports 1997-II) the Court observed that there existed no generally shared approach among the High Contracting Parties with regard to the manner in which the social relationship between a child conceived by artificial insemination by donor and the person who performed the role of father should be reflected in law. Indeed, according to the information available to the Court, although the technology of medically assisted procreation had been available in Europe for several decades, many of the issues to which it gave rise, particularly with regard to the question of filiation, remained the subject of debate. For example, there was no consensus among the member States of the Council of Europe on the question whether the interests of a child conceived in such a way were best served by preserving the anonymity of the donor of the sperm or whether the child should have the right to know the donor’s identity (ibid.). It concluded that the issues of the case touched upon areas where there was little common ground among the member States of the Council of Europe and, generally speaking, the law appeared to be in a transitional stage (ibid.).", "84. The above judgment was given in 1997, shortly before the applicants, in May 1998, lodged an application with the Austrian Constitutional Court for a review of the constitutionality of sections 3(1) and 3(2) of the Artificial Procreation Act in the present case. From the material at the Court’s disposal, it appears that since the Constitutional Court’s decision in the present case many developments in medical science have taken place to which a number of Contracting States have responded in their legislation. Such changes might therefore have repercussions on the Court’s assessment of the facts. However, it is not for the Court to consider whether the prohibition of sperm and ovum donation at issue would or would not be justified today under the Convention. The issue for the Court to decide is whether these prohibitions were justified at the time they were considered by the Austrian Constitutional Court (see J.M. v. the United Kingdom, no. 37060/06, § 57, 28 September 2010; and, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 91, ECHR 2008; and Schalk and Kopf v. Austria, no. 30141/04, § 106, ECHR 2010). However, the Court is not prevented from having regard to subsequent developments in making its assessment.", "85. The next step in analysing whether the impugned legislation was in accordance with Article 8 of the Convention is to identify whether it gave rise to an interference with the applicants’ right to respect for their private and family lives (the State’s negative obligations) or a failure by the State to fulfil a positive obligation in that respect.", "86. The applicants argued that the impugned legislation constituted a direct interference with their rights under Article 8 because, in the absence of such legislation, the medical treatment they were seeking – in vitro fertilisation with donated ova or sperm – was a common and readily available medical technique. In the Government’s view, the question whether the measure at issue should be deemed to be an interference by a public authority or an alleged breach of a positive duty could be left open because both obligations were subject to the same principles.", "87. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003-III, and Evans, cited above, § 75).", "88. In the Grand Chamber’s view, the legislation in question can be seen as raising an issue as to whether there exists a positive obligation on the State to permit certain forms of artificial procreation using either sperm or ova from a third party. However, the matter can also be seen as an interference by the State with the applicants’ rights to respect for their family life as a result of the prohibition under sections 3(1) and 3(2) of the Artificial Procreation Act of certain techniques of artificial procreation that had been developed by medical science but of which they could not avail themselves because of that prohibition. In the present case, the Court will approach the case as one involving an interference with the applicants’ right to avail themselves of techniques of artificial procreation as a result of the operation of sections 3(1) and 3(2) of the Artificial Procreation Act since they were in fact prevented from doing so by the operation of the law that they unsuccessfully sought to challenge before the Austrian courts. In any case, as noted above, the applicable principles regarding justification under Article 8 § 2 are broadly similar for both analytical approaches adopted (see Evans, cited above, § 75, and Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290).", "3. Compliance with Article 8 § 2", "89. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned.", "(a) In accordance with the law and legitimate aim", "90. The Court considers that the measure at issue was provided for by law, namely section 3 of the Artificial Procreation Act, and that it pursued a legitimate aim, namely the protection of health or morals and the protection of the rights and freedom of others. This is not in dispute between the parties, who concentrated their arguments on the necessity of the interference.", "(b) Necessity in a democratic society and the relevant margin of appreciation", "91. In that connection, the Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society” it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see, among many other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130; K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002-I; and P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002-VI).", "92. In cases arising from individual applications the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see Olsson (no. 1), cited above, § 54). Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation.", "93. The applicants argued that because of the special importance of the right to found a family and the right to procreation, the Contracting States enjoyed no margin of appreciation at all in regulating these issues.", "94. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans, cited above, § 77, and the cases cited therein). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, cited above, § 44; Fretté v. France, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002 ‑ VI; and A, B and C v. Ireland, cited above, § 232). By reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion, not only on the “exact content of the requirements of morals” in their country, but also on the necessity of a restriction intended to meet them (see A, B and C v. Ireland, cited above, § 232, with further references). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Evans, cited above, § 77, and Dickson, cited above, § 78).", "95. In that connection, the Court observes that, according to the study “Medically Assisted Procreation and the Protection of the Human Embryo: Comparative Study on the Situation in 39 States” compiled by the Council of Europe in 1998 on the basis of replies by the member States of the Council of Europe to the Steering Committee on Bioethics, ovum donation was expressly prohibited in Austria, Germany, Ireland, Norway, Slovakia, Slovenia, Sweden and Switzerland and sperm donation was prohibited in Austria, Germany, Ireland, Norway and Sweden. At present, sperm donation is prohibited, in addition to Austria, in only three countries: Italy, Lithuania and Turkey, while ovum donation is prohibited in these countries and in Croatia, Germany, Norway and Switzerland. However, legislation in that field, if it exists at all, varies considerably. While medically assisted procreation is regulated in detail in some countries, it is regulated only to a certain extent in others and in some other countries not at all.", "96. The Court would conclude that there is now a clear trend in the legislation of the Contracting States towards allowing gamete donation for the purpose of in vitro fertilisation, which reflects an emerging European consensus. That emerging consensus is not, however, based on settled and long-standing principles established in the law of the member States but rather reflects a stage of development within a particularly dynamic field of law and does not decisively narrow the margin of appreciation of the State.", "97. Since the use of in vitro fertilisation treatment gave rise then and continues to give rise today to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the present case touch on areas where there is not yet clear common ground among the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one (see X, Y and Z v. the United Kingdom, cited above, § 44). The State’s margin in principle extends both to its decision to intervene in the area and, once having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests (see Evans, cited above § 82). However, this does not mean that the solutions reached by the legislature are beyond the scrutiny of the Court. It falls to the Court to examine carefully the arguments taken into consideration during the legislative process and leading to the choices that have been made by the legislature and to determine whether a fair balance has been struck between the competing interests of the State and those directly affected by those legislative choices. In order to do so, the Court finds that the situation of the first and second applicants and that of the third and fourth applicants have to be examined separately. The Court considers that it is appropriate to start the examination with the third and fourth applicants.", "(c) The third and fourth applicants (ovum donation)", "98. The third applicant is completely infertile, while her husband, the fourth applicant, can produce sperm fit for procreation. It is not in dispute that, owing to their medical condition, only in vitro fertilisation with the use of ova from a donor would allow them to fulfil their wish for a child of which at least one of the applicants is the genetic parent. However, the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down in section 3(1) of the Artificial Procreation Act, which does not permit ovum donation, rules out this possibility. There is no exception to this rule.", "99. The Government argued that the prohibition of ovum donation for in vitro fertilisation enacted by the Austrian legislature was necessary in a democratic society. In their view, the Austrian legislature struck a fair balance between the public and private interests involved. They argued that the legislature had to set certain limits on the possibilities offered by medical techniques of artificial procreation because it had to take account of the morally and ethically sensitive nature of the issues involved and the unease existing among large sections of society as to the role and possibilities of modern reproductive medicine.", "100. The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation. However, they are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ovum donation. Notwithstanding the wide margin of appreciation afforded to the Contracting States, the legal framework devised for this purpose must be shaped in a coherent manner which allows the different legitimate interests involved to be adequately taken into account.", "101. The Government submitted, in particular, that medically advanced techniques of artificial procreation such as in vitro fertilisation carried the inherent risk that they would not be employed for therapeutic purposes only, but also for other objectives such as the “selection” of children; in vitro fertilisation posed such a risk. In addition, they submitted that there was a risk that ovum donation might lead to the exploitation and humiliation of women, in particular those from economically disadvantaged backgrounds. Also, pressure might be put on a woman who would otherwise not be in a position to afford in vitro fertilisation to produce more ova than necessary (see paragraph 66 above). The technique of in vitro fertilisation, which necessitated that ova be extracted from the woman, was risky and had serious repercussions for the person subject to such an intervention; the legislature must take particular care to reduce such risks where third persons, such as donors, were involved.", "102. The applicants argued that the adverse effects relied on by the Government in arguing the necessity of the interference could be reduced, if not prevented, by further measures that the Austrian legislature could enact and, in any event, were not sufficient to override the interests of the applicants in fulfilling their wish for a child.", "103. The Court considers that the field of artificial procreation is developing particularly fast both from a scientific point of view and in terms of the development of a legal framework for its medical application. It is for this reason that it is particularly difficult to establish a sound basis for assessing the necessity and appropriateness of legislative measures, the consequences of which might become apparent only after a considerable length of time. It is therefore understandable that the States find it necessary to act with particular caution in the field of artificial procreation.", "104. The Court observes in this connection that the Austrian legislature has not completely ruled out artificial procreation as it allows the use of homologous techniques. According to the findings of the Constitutional Court in its decision of 14 October 1999, the Austrian legislature was guided by the idea that medically assisted procreation should take place similarly to natural procreation, and in particular that the basic principle of civil law – mater semper certa est – should be maintained by avoiding the possibility that two persons could claim to be the biological mother of one and the same child and to avoid disputes between a biological and a genetic mother in the wider sense. In doing so, the legislature tried to reconcile the wish to make medically assisted procreation available and the existing unease among large sections of society as to the role and possibilities of modern reproductive medicine, which raises issues of a morally and ethically sensitive nature.", "105. The Court observes further that the Austrian legislature has established specific safeguards and precautions under the Artificial Procreation Act, namely, reserving the use of artificial procreation techniques to specialised medical doctors who have particular knowledge and experience in this field and are themselves bound by the ethical rules of their profession (see paragraph 32 above) and statutorily prohibiting the remuneration of ovum and sperm donation. These measures are intended to prevent potential risks of eugenic selection and their abuse and to prevent the risk of the exploitation of women in vulnerable situations as ovum donors. The Austrian legislature could theoretically devise and enact further measures or safeguards to reduce the risk attached to ovum donation as described by the Government. Having regard to the risk referred to by the Government of creating relationships in which the social circumstances deviated from the biological ones, the Court observes that unusual family relations in a broad sense, which do not follow the typical parent-child relationship based on a direct biological link, are not unknown in the legal orders of the Contracting States. The institution of adoption was created over time in order to provide a satisfactory legal framework for such relations and is known in all the member States. Thus, a legal framework satisfactorily regulating the problems arising from ovum donation could also have been adopted. However, the Court cannot overlook the fact that the splitting of motherhood between a genetic mother and the one carrying the child differs significantly from adoptive parent-child relations and has added a new aspect to this issue.", "106. The Court accepts that the Austrian legislature could have devised a different legal framework for regulating artificial procreation that would have made ovum donation permissible. It notes in this regard that this latter solution has been adopted in a number of member States of the Council of Europe. However, the central question in terms of Article 8 of the Convention is not whether a different solution might have been adopted by the legislature that would arguably have struck a fairer balance, but whether, in striking the balance at the point at which it did, the Austrian legislature exceeded the margin of appreciation afforded to it under that Article (see Evans, cited above, § 91). In determining this question, the Court attaches some importance to the fact that, as noted above, there is no sufficiently established European consensus as to whether ovum donation for in vitro fertilisation should be allowed.", "107. In this connection, the Court observes further that the only instruments at European level dealing with the subject matter of ovum donation for artificial procreation are the principles adopted by the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences in 1989. Principle 11 states that, in principle, in vitro fertilisation shall be effected using the gametes of the members of the couple. The Convention on Human Rights and Biomedicine of 1997 and the Additional Protocol to this Convention of 2002 are silent on this matter. Directive 2004/23/EC of the European Parliament and of the Council explicitly provides that “[t]his directive should not interfere with decisions made by member States concerning the use or non-use of any specific type of human cells, including germ cells and embryonic stem cells”.", "(d) The first and second applicants (sperm donation)", "108. The first applicant suffers from fallopian-tube-related infertility and the second applicant, her husband, is infertile. It is not in dispute that, owing to their medical conditions, only in vitro fertilisation with the use of donor sperm would allow them to fulfil their wish for a child of which at least one of the applicants is the genetic parent.", "109. However, the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by section 3(1) of the Artificial Procreation Act, which, in the circumstances of the first and second applicants, rules out sperm donation, excludes this possibility. At the same time, section 3(2) of that Act allows sperm donation for in vivo fertilisation.", "110. The Court reiterates that it is not contrary to the requirements of Article 8 of the Convention for a State to enact legislation governing important aspects of private life which does not provide for the weighing of competing interests in the circumstances of each individual case. Where such important aspects are at stake it is not inconsistent with Article 8 that the legislator adopts rules of an absolute nature which serve to promote legal certainty (see Evans, cited above, § 89).", "111. The Chamber attached particular importance to the fact that this type of artificial procreation (sperm donation for in vitro treatment) combined two techniques which, taken alone, were allowed under the Artificial Procreation Act, namely in vitro fertilisation on the one hand and sperm donation for in vivo conception on the other hand. It found that a prohibition of the combination of two medical techniques which, taken in isolation, were allowed, required particularly persuasive arguments. The only argument which, in the Chamber’s view, was specific to that prohibition was that in vivo artificial insemination had been in use for some time, was easy to handle and its prohibition would therefore have been hard to monitor. Such an argument related merely to a question of efficiency, which carried less weight than the particularly important interests of the private individuals involved, and, therefore, the Chamber concluded that the difference in treatment at issue was not justified (see paragraphs 92-93 of the Chamber judgment).", "112. The Grand Chamber is not persuaded by this line of reasoning. It considers that, when examining the compatibility of a prohibition of a specific artificial procreation technique with the requirements of the Convention, the legislative framework of which it forms a part must be taken into consideration and the prohibition must be seen in this wider context.", "113. It is true that some of the arguments raised by the Government in defence of the prohibition of gamete donation for in vitro fertilisation can refer only to the prohibition of ovum donation, such as preventing the exploitation of women in vulnerable situations or limiting potential health risks for ovum donors and preventing the creation of atypical family relations because of split motherhood. However, there remain the basic concerns relied on by the Government, namely, that the prohibition of the donation of gametes involving the intervention of third persons in a highly technical medical process was a controversial issue in Austrian society, raising complex questions of a social and ethical nature on which there was not yet a consensus in society and which had to take into account human dignity, the well-being of children thus conceived and the prevention of negative repercussions or potential misuse. The Court has found above that the prohibition of ovum donation for in vitro fertilisation, which relied on these grounds, is compatible with the requirements of Article 8 of the Convention and, in taking into account the general framework in which the prohibition at issue must be seen, is also of relevance here.", "114. The fact that the Austrian legislature, when enacting the Artificial Procreation Act which enshrined the decision not to allow the donation of sperm or ova for in vitro fertilisation, did not at the same time prohibit sperm donation for in vivo fertilisation – a technique which had been tolerated for a considerable period beforehand and had become accepted by society – is a matter that is of significance in the balancing of the respective interests and cannot be considered solely in the context of the efficient policing of the prohibitions. It shows rather the careful and cautious approach adopted by the Austrian legislature in seeking to reconcile social realities with its approach of principle in this field. In this connection, the Court also observes that there is no prohibition under Austrian law on going abroad to seek treatment of infertility that uses artificial procreation techniques not allowed in Austria and that in the event of a successful treatment the Civil Code contains clear rules on paternity and maternity that respect the wishes of the parents (see, mutatis mutandis, A, B and C v. Ireland, cited above, § 239).", "(e) The Court’s conclusion", "115. Having regard to the above considerations, the Court therefore concludes that neither in respect of the prohibition of ovum donation for the purposes of artificial procreation nor in respect of the prohibition of sperm donation for in vitro fertilisation under section 3 of the Artificial Procreation Act had the Austrian legislature, at the relevant time, exceeded the margin of appreciation afforded to it.", "116. Accordingly, there has been no breach of Article 8 of the Convention as regards all of the applicants.", "117. Nevertheless, the Court observes that the Austrian Parliament has not, until now, undertaken a thorough assessment of the rules governing artificial procreation, taking into account the dynamic developments in science and society noted above. The Court also notes that the Austrian Constitutional Court, when finding that the legislature had complied with the principle of proportionality under Article 8 § 2 of the Convention, added that the principle adopted by the legislature to permit homologous methods of artificial procreation as a rule and insemination using donor sperm as an exception reflected the then current state of medical science and the consensus in society. This, however, did not mean that these criteria would not be subject to developments which the legislature would have to take into account in the future.", "118. The Government have given no indication that the Austrian authorities have actually followed up this aspect of the ruling of the Constitutional Court. In this connection, the Court reiterates that the Convention has always been interpreted and applied in the light of current circumstances (see Rees v. the United Kingdom, 17 October 1986, § 47, Series A no. 106). Even if it finds no breach of Article 8 in the present case, the Court considers that this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States (see Christine Goodwin, cited above, § 74, and Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV).", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 8", "119. The applicants complained that the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by sections 3(1) and 3(2) of the Artificial Procreation Act had violated their rights under Article 14 of the Convention read in conjunction with Article 8.", "120. In the circumstances of the present case, the Court considers that the substance of this complaint has been sufficiently taken into account in the above examination of the applicants’ complaints under Article 8 of the Convention. It follows that there is no cause for a separate examination of the same facts from the standpoint of Article 14 read in conjunction with Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicants were born in 1977 and 1975 respectively and live in Rome.", "8. Following the birth of their daughter in 2006, the applicants learned that they were healthy carriers of cystic fibrosis [1]. The child had been born with the disease.", "9. In February 2010, when the first applicant was pregnant again, the applicants, who wanted to have a healthy child unaffected by the genetic disease, had a prenatal test carried out. The results showed that the foetus was affected by cystic fibrosis. The applicants then decided to have the pregnancy terminated on medical grounds.", "10. The applicants now want to take advantage of assisted reproduction technology (hereafter “ART”) and preimplantation genetic diagnosis [2] (hereafter “PGD”) before the first applicant becomes pregnant again. However, under Law no. 40 of 19 February 2004, ART is available only to sterile or infertile couples. There is a blanket ban on the use of PGD.", "11. By a decree of 11 April 2008, the Ministry of Health extended access to ART to couples in which the man suffers from a sexually transmissible viral disease (such as the HIV virus, or hepatitis B and C) to allow them to conceive children without the risk of contamination of the woman and/or the fœtus inherent in conception by natural means.", "12. According to the information provided by the Government and the first third-party intervener, this operation is done by “sperm washing” prior to in vitro fertilisation." ]

[ "II. RELEVANT DOMESTIC LAW", "1. Law no. 40 of 19 February 2004 (“Rules on assisted reproduction technology”)", "Section 4(1) Access to technology", "“Access to assisted reproduction technology shall be authorised only where proof is adduced that it is otherwise impossible to eliminate the causes of inability to procreate, and, in any event, [said access] shall be limited to medically certified inexplicable cases of sterility or infertility and to cases of sterility or infertility [deriving] from a medically certified and verified cause. ...”", "Section 5(1) Subjective conditions", "“... Adult couples, composed of two persons of opposite sex, who are married or living together as a couple, of potentially fertile age and alive may have access to assisted reproduction technology.”", "Section 14(5) Limits on application of technology to embryos", "“Individuals satisfying the conditions provided for in section 5 shall be informed of the number and, at their request, the state of health of the embryos produced and destined to be transferred into the womb.”", "2. Ministry of Health decree no. 15165 of 21 July 2004", "Measures protective of the embryo", "“... Any test regarding the state of health of an embryo created in vitro, within the meaning of section 14(5) [of Law no. 40 of 2004], must be for observation purposes alone ( dovrà essere di tipo osservazionale ). ...”", "3. Ministry of Health decree no. 31639 of 11 April 2008", "13. In this decree the reference to “observation” purposes mentioned in Ministry of Health decree no. 15165 of 21 July 2004 was deleted.", "14. Furthermore, the part of this decree concerning certification of infertility or sterility provides that, for the purposes of access to assisted reproduction technology, this must be done", "“... having regard also to particular conditions in the presence of which – where the man is a carrier of a sexually transmissible viral disease by infection with HIV, or hepatitis B and C – the high risk of infection for the mother or for the fœtus constitutes de facto, in objective terms, an obstacle to procreation, requiring precautions that necessarily result in infertility of a kind comparable to acute male infertility deriving from a verified and medically certified cause such as that referred to in section 4(1) of Law no. 40 of 2004”.", "4. Judgment of the Lazio Regional Administrative Court no. 398 of 21 January 2008", "15. In this judgment the court set aside on grounds of ultra vires the part of Ministry of Health decree no. 15165 of 21 July 2004 limiting any test relating to the state of health of embryos created in vitro to observation purposes alone. The court found that the power to establish the scope of application of such tests was a matter for the legislature alone and not the ministry, which had purely implementing powers.", "5. Order no. 12474/09 of the Salerno Court, deposited on 13 January 2010", "16. In this order, following urgent proceedings, the delegated judge of the Salerno Court granted, for the first time, a couple who were neither sterile nor infertile, and both healthy carriers of muscular atrophy, access to PGD.", "17. The judge referred, among other things, to the new provisions introduced by the Ministry of Health decree no. 31639 of 11 April 2008 no longer limiting tests on the state of health of embryos created in vitro to observation purposes alone and authorising access to assisted reproduction for couples in which the man carried a sexually transmissible viral disease.", "18. He thus considered that PGD had to be regarded as one of the prenatal monitoring techniques for ascertaining an embryo’s state of health. Accordingly, prohibiting access to the technique, in the claimants’ case, engaged the medical liability of the Health Director of the Centre for Reproductive Medicine, who was the defendant in the proceedings, for failure to provide a health service.", "19. The judge also found that since the mother had the right to abort an unhealthy fœtus, it would be unreasonable not to guarantee her the right to know the state of health of the embryo by means of PGD.", "20. The judge accordingly ordered the health director to carry out a PGD on the claimants’ in vitro embryo in order to determine whether it was affected by muscular atrophy.", "III. RELEVANT EUROPEAN LAW", "1. The Council of Europe Convention on Human Rights and Biomedicine (Oviedo Convention) of 4 April 1997", "21. The relevant parts of this Convention read as follows:", "Article 12 – Predictive genetic tests", "“Tests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling”.", "22. Paragraph 83 of the Explanatory Report to the Oviedo Convention provides:", "Article 12 as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child.", "23. The Oviedo Convention, signed on 4 April 1997, has not been ratified by the Italian Government.", "2. Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004", "24. This directive has established a minimum quality and safety standard for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, thus providing for harmonisation of national regulations. It also covers embryos transferred following PGD.", "3. Background document on preimplantation and prenatal genetic testing published by the Steering Committee on Bioethics (CDBI) of the Council of Europe on 22 November 2010 (CDBI/INF (2010) 6)", "25. The CDBI drew up this report with a view to providing information on preimplantation and prenatal diagnosis and the legal and ethical questions arising from their use in various European countries. The relevant extracts of this document are worded as follows:", "[a) Context]", "“ In vitro fertilisation has been performed since the late ‘70s to help couples with fertility problems. Advances in reproductive medicine have opened new possibilities to avoid genetic disease by selective transfer of embryos. At the beginning of the’90s, preimplantation genetic diagnosis (PGD) was introduced as a possible alternative to prenatal genetic diagnosis (PND) for couples at risk of transmitting a particularly severe genetic defect, avoiding the difficult decision of whether or not to terminate a pregnancy.”", "[b) PGD cycle]", "“A “PGD cycle” comprises the following steps: ovarian stimulation, oocyte retrieval, in vitro fertilisation of several mature oocytes, by introcytoplasmic sperm injection (ICSI), removal of 1 or 2 embryonic cells, genetic analysis of nuclear material from those cells and lastly selection and transfer of embryos not carrying the abnormal genetic characteristics in question.”", "[c) PGD uses]", "“Use of PGD for medical indications has been offered to couples at high risk of transmitting a specific genetic disease of particular gravity ... and untreatable at the time of diagnosis. The risk was often identified on the basis of family history or the birth of affected children. Numerous monogenic indications currently meet these criteria justifying application of PGD, such as cystic fibrosis, Duchenne Muscular Dystrophy, myotonic dystrophy, Huntington’s disease, spinal muscular atrophy in infants and haemophilia.”", "“In those countries where preimplantation genetic diagnosis (PGD) is performed, it has become an established clinical method to analyse genetic characteristics of embryos created by in vitro fertilisation, and to obtain information which is used to select the embryos to be transferred. The use of PGD is mainly requested by couples carrying genetic conditions linked to severe disorder or premature death of their offspring who wish to avoid initiation of a pregnancy that may not come to term or that may entail the difficult question of terminating the pregnancy in case of a detected particularly severe genetic defect.”", "4. The report “Preimplantation Genetic Diagnosis in Europe” drawn up by the JRC (Joint Research Centre) of the European Commission, published in December 2007 (EUR 22764 EN)", "26. This report shows that PGD patients from countries where the practice is prohibited go abroad for the diagnosis. Italian patients generally go to Spain, Belgium, the Czech Republic or Slovakia.", "27. The study also points to the inconsistency of legislative provisions which prohibit access to PGD yet authorise access to prenatal diagnosis and medical termination of pregnancy in order to avoid serious genetic diseases in children.", "5. Report on the proposal for a Council recommendation on a European action in the field of rare diseases (European Parliament 23 April 2009)", "28. The relevant parts of the press release on this report read as follows:", "“Concerted action at EU and national level is needed to tackle this problem, according to a report adopted by Parliament today. The current EU legislative framework is poorly suited to rare diseases and not well defined. Although rare diseases contribute greatly to morbidity and mortality, they are mostly invisible in health care information systems due to the lack of appropriate coding and classification systems. ... Parliament adopted an amendment today which recommends that Member States encourage efforts to avoid rare diseases which are hereditary, through genetic counselling of carrier parents and, where appropriate and “not contrary to existing national laws and always on a voluntary basis, through pre-implantation selection of healthy embryos”.”", "6. Comparative law", "29. The documents in the Court’s possession (namely, the reports of the Council of Europe and the European Commission, paragraphs 25 to 27 above) show that PGD is banned, at least for the prevention of transmission of genetic diseases, in the following countries: Austria, Italy and Switzerland.", "30. With regard to Switzerland, the Court notes that on 26 May 2010 the Federal Council submitted for consultation a draft amendment to the current ban on PGD contained in the Assisted Reproduction Act, to provide for regulated access. An amendment to Article 119 of the Federal Constitution will be necessary in order to implement the change.", "31. It also appears that PGD is authorised in the following countries: Germany, Belgium, Denmark, Spain, Finland, France, Georgia, Greece, Norway, the Netherlands, Portugal, the Czech Republic, the United Kingdom, the Russian Federation, Serbia, Slovenia and Sweden.", "32. PGD is not the subject of specific regulations in the following countries: Bulgaria, Cyprus, Malta, Estonia, Ireland, Latvia, Luxembourg, Poland, Romania, Slovakia, Turkey and Ukraine. The Court notes that three of those countries (Cyprus, Turkey and Slovakia allow access to PGD in practice.", "33. The Court also observes that in the case of Roche v. Roche and Others ( [2009] IESC 82 (2009 )), the Irish Supreme Court established that the concept of the unborn child did not apply to embryos created through in vitro insemination, which accordingly did not benefit from the protection provided for in Article 40.3.3. of the Irish Constitution recognizing the right to life of the unborn child. In that case the applicant, who had already had a child following in vitro fertilisation, had applied to the Supreme Court for leave to have implanted three other embryos created by the same fertilisation process, despite the lack of consent of her former partner from whom she had separated in the meantime.", "7. Relevant information from the “Bill amending the Assisted Reproduction Technology Act of 6 July 2007 ...” – Belgian Senate, session 2010-2011", "34. This Bill seeks to extend the use of PGD to precluding the risk of giving birth to a child who is a healthy carrier of a serious genetic disease (access to this technique to avoid giving birth to children affected by genetic diseases being already provided for in Belgian law). The relevant passages of the Bill are set out below:", "“Requests for preimplantation testing have increased over time and this is now an option for couples who run a high risk of giving birth to a child with a serious hereditary disorder where mutation can be detected. ...", "Future parents generally prefer preimplantation genetic diagnosis (PGD) to prenatal diagnosis. Indeed ... “where the fœtus is affected this will involve terminating the pregnancy from three months onwards, which is generally a source of mental distress for parents who have invested emotionally in the fœtus as their future child ... Moreover, it is possible that several successive pregnancies have to be terminated before a healthy fœtus can be obtained [Source: Bioethics Advisory Committee, opinion no. 49 on the use of PGD]", "Accordingly, the main advantage of preimplantation testing is that termination of pregnancy can be avoided. It has been observed that this constitutes the main motivation of the majority of couples seeking the treatment, these couples having often already endured the distressing experience of terminating a pregnancy on medical grounds.”", "THE LAW", "...", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "41. Relying on Article 8 of the Convention, the applicants complained of a violation of their right to respect for their private and family life in that their only means of producing children unaffected by the disease of which they were healthy carriers was to commence a pregnancy by natural means and medically terminate it whenever the prenatal diagnosis showed that the foetus was affected.", "42. The relevant parts of Article 8 of the Convention provide:", "“1. Everyone has the right to respect for his private and family life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "...", "B. Merits", "1. The parties’ submissions", "a) The Government", "44 The Government observed that the applicants were relying in substance on a “right to have a healthy child”, which was not protected as such by the Convention. Accordingly, their complaint was inadmissible ratione materiae.", "45. Were the Court to consider that Article 8 was nonetheless applicable to the present case, the applicants’ right to respect for their private and family life had not in any case been infringed because the ban on PGD was a measure in accordance with the law which pursued a legitimate aim – protecting the rights of others and morals – and was necessary in a democratic society.", "46. In regulating access to PGD, the State had taken account of the health of the child and the woman, the latter being susceptible to depression on account of ovarian stimulation and oocyte retrieval. Furthermore, the measure in question was designed to protect the dignity and freedom of conscience of the medical professions and precluded the risk of eugenic selection.", "47. Lastly, given the lack of a European consensus in this area, the member States enjoyed a wide margin of appreciation since the present application related to moral, ethical and social issues.", "b) The applicants", "48. The applicants observed that “the right to respect for both the decisions to become and not to become a parent”, particularly in the genetic sense, fell within the concept of right to respect for private and family life (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I).", "49. In this context the State should refrain from interfering in any way in the individual’s choice as to whether or not to procreate. The State also had a duty to put measures in place to allow that choice to be freely made.", "c) The third-party interveners", "50. The first third-party intervener reiterated the observations of the respondent Government. They also observed that, like the ban on PGD, the possibility of a legal abortion sought to protect the life of the unborn child since the system provided alternatives to abortion by putting in place social measures, for example. Furthermore, PGD involved the elimination of several human beings whereas an abortion eliminated only one.", "51. The second third-party intervener submitted that access to artificial insemination followed by PGD would allow the applicants to conceive a child unaffected by the hereditary disease, without having recourse to abortions on medical grounds. This would accordingly also protect the first applicant’s health.", "2. The Court’s assessment", "a) The scope of the complaint lodged by the applicants and its compatibility ratione materiae with the rights guaranteed by Article 8 of the Convention", "52. The Court notes first of all that, in order to establish whether the complaint lodged by the applicants is compatible ratione materiae with Article 8 of the Convention, it is essential to determine the scope of the complaint.", "53. It observes that the Government and the first third-party intervener have alleged that the applicants complain of a violation of a “right to have a healthy child”. The Court notes, however, that the right relied on by the applicants is confined to the possibility of using ART and subsequently PGD for the purposes of conceiving a child unaffected by cystic fibrosis, a genetic disease of which they are healthy carriers.", "54. In the present case PGD cannot exclude other factors capable of compromising the future child’s health, such as, for example, the existence of other genetic disorders or complications arising during pregnancy or birth, since the test in question seeks to diagnose a “specific genetic disease of particular gravity ... and untreatable at the time of diagnosis” (see the report of the CDBI of the Council of Europe, part b. “PGD Cycle”, paragraph 25 above).", "55. The Court reiterates that the notion of “private life” within the meaning of Article 8 is a broad concept which includes, among other things, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B), the right to “personal development” (see Bensaïd v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I), or alternatively the right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). Factors such as sexual identity, orientation and life also fall within the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997 ‑ I), as does the right to respect for the decisions to become or not to become a parent (see Evans, cited above, § 71; A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010; and R.R. v. Poland, no. 27617/04, § 181, ECHR 2011 (extracts)).", "56. Under Article 8 of the Convention, the Court has also acknowledged a right to respect for the decision to become genetic parents (see Dickson v. the United Kingdom [GC], no. 44362/04, § 66, ECHR 2007 ‑ V, with the references cited therein) and concluded that Article 8 applies to heterologous insemination techniques for in vitro fertilisation (see S.H. and Others v. Austria [GC], no. 57813/00, § 82, ECHR 2011).", "57. In the present case the Court considers that the applicants’ desire to conceive a child unaffected by the genetic disease of which they are healthy carriers and to use ART and PGD to this end attracts the protection of Article 8, as this choice is a form of expression of their private and family life. Consequently, this provision is applicable in the present case.", "b) Compliance with Article 8 of the Convention", "i. Interference “in accordance with the law” and legitimate aim", "58. The Court observes that, under Italian law, assisted reproductive technology is available only to sterile or infertile couples and to couples in which the man is a carrier of a sexually transmissible viral disease (HIV, hepatitis B and C) (see section 4(1) of Law no. 40/2004 and Ministry of Health decree no. 31639 of 11 April 2008). As the applicants do not fall into those categories, they have no access to assisted reproductive technology. With regard to PGD, the Government have explicitly acknowledged that the domestic law imposes a blanket ban on access to this technique .... The ban in question thus amounts to an interference with the applicants’ right to respect for their private and family life.", "59. In the Court’s view, such interference is certainly “in accordance with the law” and can be regarded as pursuing the legitimate aims of protecting morals and the rights and freedoms of others, which is undisputed by the parties.", "ii. Necessary in a democratic society", "60. The Court notes at the outset that the applicants’ complaint does not concern the question whether, taken alone, the ban on their recourse to PGD is compatible with Article 8 of the Convention. The applicants complain of a lack of proportionality of such a measure given that Italian law does allow them to abort the foetus if it is affected by the disease of which they are carriers.", "61. In order to justify this interference, the Government refer to the concern to protect the health of “the child” and the woman, the dignity and freedom of conscience of the medical professions and the interest in precluding a risk of eugenic selection.", "62. The Court is not persuaded by those arguments. While stressing that the concept of “child” cannot be put in the same category as that of “embryo”, it fails to see how the protection of the interests referred to by the Government can be reconciled with the possibility available to the applicants of having an abortion on medical grounds if the fœtus turns out to be affected by the disease, having regard in particular to the consequences of this both for the fœtus, which is clearly far further developed than an embryo, and for the parents, in particular the woman (see the report of the CDBI of the Council of Europe and the information contained in the Belgian Bill, paragraphs 25 and 34 above).", "63. Furthermore, the Government have failed to explain how the risk of eugenic selection and affecting the dignity and freedom of conscience of the medical professions would be averted in the event of an abortion being carried out on medical grounds.", "64. The Court cannot but note that the Italian legislation lacks consistency in this area. On the one hand it bans implantation limited to those embryos unaffected by the disease of which the applicants are healthy carriers, while on the other hand it allows the applicants to abort a fœtus affected by the disease (see also the report of the European Commission, paragraph 27 above).", "65. The consequences of such legislation for the right to respect for the applicants’ private and family life are self-evident. In order to protect their right to have a child unaffected by the disease of which they are healthy carriers, the only possibility available to them is to start a pregnancy by natural means and then terminate it if the prenatal test shows that the fœtus is unhealthy. In the instant case the applicants have already terminated one pregnancy for that reason, in February 2010.", "66. In these circumstances the Court should not underestimate either the anxiety experienced by the first applicant, whose only hope of having another child, since she is unable to have recourse to PGD, carries the concomitant risk that the child will be born with the disease or the suffering inherent in the painful decision to undergo, as the case may be, an abortion on medical grounds.", "67. The Court also notes that in the case of S.H. (cited above, § 96), the Grand Chamber established that, in cases of heterologous insemination, having regard to medical and scientific developments, the State’s margin of appreciation could not be decisively narrowed.", "68. While acknowledging that the question of access to PGD raises sensitivie moral and ethical questions, the Court notes that the solutions reached by the legislature are not beyond the scrutiny of the Court (see, mutatis mutandis, S.H., cited above, § 97).", "69. In the present case the Court reiterates that, unlike the case of S.H. (cited above), where the Court assessed the compatibility of Austrian law prohibiting heterologous insemination with Article 8 of the Convention, its task in this case, which concerns homologous insemination, is to verify the proportionality of the measure in question in the light of the fact that termination of pregnancy on medical grounds is an option for the applicants (see paragraph 60 above).", "70. It is therefore a specific situation which, according to the comparative-law materials in the Court’s possession, apart from Italy, concerns only two of the thirty-two States studied, namely, Austria and Switzerland. Moreover, with regard to the latter State, the Court notes that a draft amendment to the current ban on PGD, to provide for regulated access, is now being examined (see paragraph 30 above).", "3. Conclusion", "71. Having regard to the above-described inconsistency in Italian legislation on PGD, the Court considers that the interference with the applicants’ right to respect for their private and family life was disproportionate. Accordingly, there has been a violation of Article 8 of the Convention in the present case.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1967. After numerous previous failed attempts, the applicant became the mother of a child, conceived as the result of an in vitro fertilisation (IVF) procedure with donated gametes. The procedure was performed in S. Medical Centre in Bucharest; and produced nineteen embryos, three of which were implanted on 8 June 2008.", "The remaining sixteen embryos obtained on the same occasion were frozen until the applicant was considered fit by her physician to undergo another pregnancy. A protocol was concluded between the applicant and S., in which the applicant acknowledged that she had been informed that in 15-20% of cases, after thawing, the embryos proved not to be viable, and that if that were the case the embryo transfer would be impossible.", "8. According to a document issued by the National Transplant Agency (“the NTA”), on 15 July 2009 the S. Medical Centre was authorised to function as a bank for genetic material. However, the circumstances in which that document was issued are currently under the scrutiny of the domestic criminal court, in view also of the fact that it was the Ministry of Public Health, and not the NTA, which had exclusive competence to give such authorisations.", "9. On 24 July 2009, the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General’s Office (DIICOT) closed the S. Medical Centre, seized all the genetic material found there and deposited it at the Mina Minovici Institute of Forensic Medicine (IFM). This decision was not contested before the courts.", "10. On 25 August 2009, the applicant wrote to DIICOT in her capacity as “owner of the sixteen embryos”, expressing concerns as to the state of her frozen embryos and asking to be informed of the practical procedure to be followed in order to urgently retrieve her embryos.", "11. On 7 September 2009, the applicant was informed by DIICOT that it was not aware of any technical means of identifying the embryos in question, given that an inventory was still being made of all the material seized and no document relating to the applicant’s embryos had been identified.", "In any event, in order to be able to retrieve her genetic material from the Institute, the applicant was advised to appoint a doctor specialising in embryology, who would then contact the IFM for that purpose.", "12. In attempts to find an embryologist the applicant addressed her request to the Ministry of Health, the Embryologists’ Association and the National Doctors’ Association.", "In its reply, the Ministry of Health gave the applicant a list of the medical institutions accredited as banks for genetic material, by virtue of ministerial Order no. 1225 of 1 July 2008; the S. Medical Centre and the IFM were not mentioned in the list. The Ministry also informed the applicant that it could not intervene in any way in the contractual relationship between her and S., assuming that such a contract existed and included specific provisions as to who could retrieve the embryos and under what circumstances. Referring to the letter of 7 September 2009 from DIICOT, the Ministry suggested that the applicant should contact S. and, on the basis of the contract she had concluded with the clinic, ask for support in identifying and retrieving her embryos.", "The Embryologists’ Association replied to the applicant on 12 October 2009, informing her that an embryo transfer could be performed only by a specialist in assisted reproduction, and that such transfers could not be carried out until the relevant embryos had been properly identified.", "13. The applicant finally contacted two doctors from the P. Clinic in Sibiu (300 km from Bucharest). On 2 November 2009, in accordance with the legal requirements, the P. Clinic requested the authority of the NTA to perform the retrieval, but received no answer. The request was reiterated on 29 January 2010; on 1 February the NTA informed the P. Clinic that it could not grant the requested authority, since such authority could only be given in respect of a tissue and cell bank accredited by the NTA, which the IFM was not.", "14. On 10 February 2010, DIICOT informed the applicant that the NTA’s refusal was not binding on DIICOT; the IFM had been appointed as the legal custodian of the genetic material pending a criminal investigation. Once the investigation was terminated and the S. Clinic was indicted, the file was to be sent before the criminal courts on 24 February 2010. Consequently, an order was issued authorising the applicant to retrieve her embryos by 25 February 2010, since after that date the Institute for Forensic Medicine would cease to act as a deposit bank appointed by the investigating authorities. The applicant was required to be accompanied by an embryologist and to provide a special container with liquid nitrogen for the transfer.", "15. The applicant managed to obtain from a clinic in Austria a special container with liquid nitrogen of the kind required for such transfers and asked the clinic to carry out the transfer.", "On 12 February 2010, the P. Clinic informed the applicant that the NTA had refused to consent to the transfer for the following reasons: the IFM had never been authorised by the NTA to store such materials and therefore there could be no guarantee as to the quality of the material stored there (against contamination, deterioration, and so on); moreover, the storage of such material in the Institute did not comply with the legal requirements (Order of the Minister of Public Health no. 1763/2007) concerning the traceability of the genetic material.", "In view of the NTA’s refusal, of the fact that the P. Clinic carried out its activities under the authority of the NTA, and in so far as it could not guarantee the quality and security of the genetic material, the clinic informed the applicant that it could not proceed with the retrieval.", "16. On 19 February 2010 the applicant wrote again to DIICOT, asking it to issue an order allowing the IFM to continue to store her embryos until the NTA had consented to their retrieval. As justification of the need for such an urgent measure, the applicant pointed out that an inability to transfer the embryos would have serious repercussions on the right to life of her embryos and on her right to have a family.", "On the same day, the applicant sent a similar letter to the NTA, asking it to re-evaluate the circumstances of her case and consequently to authorise the transfer of her embryos to the P. Clinic.", "17. The NTA replied on 23 February 2010, informing the applicant as follows: the IFM had been appointed as custodian in complete disregard of the legal provisions of Directive 2004/23/EC and of Article 148 (4) of the Health Reform Act (Law no. 95/2006); the IFM had never been accredited, nor had it been given approval by the NTA to operate as a bank for genetic material; the S. Medical Centre had been accredited to operate as a bank of genetic material only on 15 July 2009, and not in June 2008, when the embryos had been frozen and stored; the Code of Criminal Procedure, invoked by DIICOT, did not provide any safeguards as to the security and safety of the embryos while they were stored at S. (for one year) and subsequently at the IFM (for six months).", "The NTA also contended that it did not have any information regarding the way in which the embryos had been transported from S. to the IFM, and was thus unable to guarantee that the minimum sanitary conditions had been complied with.", "The NTA could therefore not authorise the transfer of the embryos from the IFM to another clinic, either within Romania or internationally; furthermore, according to the provisions of Article 19 (3) of Directive 2004/23/EC, “all tissue and cells that do not comply with [the legal] provisions shall be discarded.”", "A. Proceedings before the Court under Rule 39", "18. On 18 February 2010, the applicant requested the Court under Rule 39 of the Rules of Court to direct the Romanian authorities to allow her to retrieve her sixteen embryos stored at the Institute of Forensic Medicine.", "19. On 22 February 2010, the President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Romania, under Rule 39 of the Rules of Court, that the embryos should not be destroyed after 25 February 2010, for the duration of the proceedings before the Court.", "The President also decided to request the Government, under Rule 54 § 2 (a) of the Rules of Court, to submit information as to the legal status of the embryos after 25 February 2010 and on the domestic law and procedure which would allow the applicant to obtain a court transfer order quickly.", "20. In reply, the Government informed the Court as follows.", "21. In its letter of 26 February 2010, the IFM informed the Government that it was merely the authorised depository of a receptacle seized by DIICOT from S., and that its only obligation was to make sure that the receptacle was preserved at a temperature of -80 degrees Celsius. The IFM therefore could not dispose of the biological material stored in the receptacle in any way.", "22. The Ministry of Public Health informed the Government on 8 March 2010 that they had asked the IFM to take all necessary measures to adequately preserve the applicant’s embryos. The Ministry also asked the NTA to share with the IFM all relevant information concerning the appropriate procedure for preserving the above-mentioned embryos.", "23. With regard to the information required under Rule 54 § 2 (a), the Government appended the letter of 8 March 2010 from DIICOT, which stated that the applicant’s request to have her genetic material returned had already been granted by the prosecutor on 12 November 2009. The decision had been taken after the applicant’s embryos had been identified on 5 November 2009; the applicant had been given until 25 February 2010 to retrieve her embryos, the same deadline having been set for four other individuals who were in a situation similar to the applicant’s, in view of the necessity of avoiding repeated interferences with the contents of the receptacles and the fact that since an indictment had already been issued, the investigation authorities could no longer pay the IFM the cost of storage.", "DIICOT also informed the Government that the seizure, transport and handover of the genetic material to IFM had been carried out with the agreement of the Ministry of Public Health, whose representative – the manager of the NTA at that time – had cooperated directly with the investigation authorities.", "24. In conclusion, the Government contended that the applicant already had a decision allowing the transfer of the embryos, which could be carried out at any time provided the applicant was accompanied by an embryologist and had the appropriate receptacle.", "25. In response to the Government’s reply, the applicant asked the Court to note that it was not specified whether the applicant would be able to retrieve her embryos in the absence of authorisation from the NTA. In practice, as she had already shown, the embryo transfer was not possible unless the NTA authorised it.", "B. Proceedings seeking to obtain authorisation for the embryo transfer", "1. Request lodged with the criminal courts", "26. On 20 April 2010, the applicant formulated before the Bucharest County Court civil claims in the criminal proceedings pending before the domestic courts following the indictment issued by DIICOT (see paragraph 14 above); she thus asked the court to allow an embryo transfer from the IFM to a Romanian or foreign authorised clinic.", "The applicant’s request was dismissed on 6 July 2010; the court considered that given that the prosecutor’s decision of 12 November 2009 had already granted her claim, the actual implementation and enforcement of the decision exceeded the framework of the criminal trial. The court also held that the applicant had the opportunity, if she so wished, to contest the NTA’s refusal to authorise the embryo transfer before the civil courts.", "The applicant contested this ruling; on 23 July 2010 her appeal was dismissed as inadmissible by the Bucharest Court of Appeal. In the court’s reasoning it was stated that there was no legal basis to respond to her request within the criminal proceedings, the civil courts having jurisdiction to examine her complaints.", "In his dissenting opinion, Judge D.D. estimated that the applicant’s request was well founded, in so far as, in spite of the prosecutor’s decision ordering the restitution of her embryos, the authorities were refusing to implement the decision. Having regard to the fact that the confiscation of the embryos was carried out within criminal proceedings, it was only natural that the restitution should also be carried out within the same proceedings. At the same time, considering that the applicant could not be held responsible for the confiscation, which had been ordered by the investigating authorities in the absence of any authorisation from the NTA, it was excessive to ask the applicant to pursue yet another set of proceedings in order to be able to obtain authorisation for transfer from the NTA.", "2. Request lodged before the administrative courts", "27. On 28 July 2010 the applicant lodged with the Bucharest Court of Appeal a request seeking to obtain, in accordance with the provisions of Law no. 554/2004 regulating administrative proceedings, the NTA’s authorisation for the transfer of her embryos to a specialised and authorised clinic, whether in Romania or abroad.", "In their defence, the NTA reiterated their arguments, according to which the fact that the embryos had been deposited firstly at S., and then at the IFM, where they had been transported under unknown conditions, neither of the two institutions being at the time accredited as banks for genetic material, created uncertainty with regard to the safety and quality of the embryos (see also paragraph 17 above). In such circumstances, it was not possible to authorise transfer under the relevant legislation. Furthermore, if any clinic from Romania agreed to deposit the sixteen embryos, the NTA would have to revoke that clinic’s accreditation for non-compliance with the law.", "The applicant’s request was dismissed as ill-founded on 10 December 2010. The court considered that in view of the relevant legislation, requiring specific standards of quality and safety with regard to the genetic material and in so far as neither the S. Clinic at the time of the original deposit of embryos nor the IFM, was accredited or authorised to function as banks of genetic material, the NTA’s refusal was justified and in accordance with the law.", "28. The applicant contested this judgment before the High Court of Cassation and Justice, reiterating that according to the Government’s submissions before the Court, the transfer of the embryos from the S. Clinic into the IFM was carried out with the approval of the Ministry of Health and of the NTA’s manager; in that respect, the NTA’s refusal to authorise a further transfer appeared unjustified. Furthermore, the applicant’s few visits to the IFM for the purposes of checking the state of her embryos revealed that the embryos were being kept in precarious conditions, in the absence of any trained staff able to properly supervise their preservation.", "29. The High Court gave its ruling on 17 May 2011, allowing the applicant’s request and obliging the NTA to authorise the transfer of the sixteen embryos from the IFM to an authorised clinic in Romania or abroad.", "In its reasoning, the court mainly held that in so far as the NTA’s attribution was to coordinate the activities of procurement, processing, preservation, storage, validation and distribution of human tissue and cells in Romania, there was no legal ground for it to interfere in the implementation of the prosecutor’s decision to restore the embryos.", "The fluctuating attitude of the NTA concerning its participation and/or cooperation with the criminal investigation authorities, namely, confirming that the retrieval of the embryos from S. had been done with the approval of the NTA’s manager, while also holding that the transfer had been made without its consent, proved once more that the NTA was confused and uncertain about the scope of its own authority. The NTA’s cooperation with the criminal investigation authorities was certain, as it came out especially from the observations submitted by the Government’s Agent before the Court (see paragraph 23 above). Such cooperation was, in any event, natural, having regard to the specific nature of the confiscated goods. In this context, the NTA should have advised the investigation authorities to deposit the embryos in an authorised clinic, which they did not do. On the contrary, the NTA proved to be excessively formalistic only when it came to the restitution of the embryos to the applicant, considering, unfoundedly, that it was within its competence to intervene in the enforcement of the prosecutor’s decision:", "“This behaviour on the part of the NTA breached the applicant’s right to retrieve her embryos and to make use of them as urgently as possible, in view of the special characteristics of the genetic material and also of the applicant’s age, in the context of her desire to become a mother.”", "30. The NTA’s allegations, that in 2008, when the applicant underwent the IVF, she did not comply with the relevant legal requirements, were not in themselves relevant, in so far as the criminal proceedings regarding the activity of the S. Clinic were still pending; moreover, in 2008, when the applicant deposited her embryos at S., the clinic was in the process of being accredited, as shown by the inspections organised to that end on 24 June 2008, and 15 April and 13 July 2009 by the NTA and the Department for the Control of Public Health, culminating with the accreditation apparently having been granted to the clinic by the NTA on 15 July 2009.", "In spite of all these factors, and of the fact that the prosecutor decided that the embryos should be given back to the applicant, the NTA unjustifiably intervened and blocked the restitution procedure; the NTA unlawfully arrogated to itself an authority it did not have, while also threatening any medical institution which could have received the embryos even without the NTA’s authorisation that in such a case their licence would be suspended or even revoked.", "Furthermore, the NTA could not cite any doubt as to the security and quality of the genetic material because it had been deposited at the IFM, an unauthorised clinic, having regard to the fact that at the moment of the deposit their agreement had been given, and afterwards, following the Court’s request that the embryos should be preserved and protected pending the proceedings before this Court, the NTA was expressly solicited by the Ministry of Health to provide expertise so as to satisfy the Court’s request.", "Referring to the case of Ternovszky v. Hungary (no. 67545/09, 14 December 2010), the High Court held that when there was no domestic law able to adequately define the specific circumstances in the relationship between an individual and the state, the latter was bound to protect fundamental human rights, such as, in the present case, the right to respect for private life and the right to life.", "For this reason, the court considered that:", "“By its obstructive attitude, the NTA infringed the applicant’s rights and interests linked to the right to a private life and the right to life, by not properly balancing the public interest that the NTA is bound to protect and the legitimate interests of the applicant.”", "It therefore allowed the applicant’s claims as formulated, holding that", "“the NTA was obliged to authorise the transfer of the sixteen embryos from the IFM to an authorised and specialised clinic in Romania or abroad, a clinic which would be able to receive the embryos in its bank and which would be able to assist the applicant with the desired embryo transfer.”", "3. Enforcement of the judgment of 17 May 2011", "31. In accordance with the High Court’s ruling, on 15 June 2011 the NTA issued a decision in which it “authorised the transfer of the sixteen embryos from the IFM Mina Minovici to an authorised clinic in Romania, in accordance with the relevant legal framework”.", "The NTA further held that the second alternative mentioned in the High Court’s judgment, namely that the transfer could also be authorised abroad, could not be implemented, in so far as the appropriate authorisation for a transfer abroad was not an ordinary authorisation for transfer, but “an authorisation for export”, which was never requested as such by the applicant; moreover, authorisation for export had a very particular character, and in its absence the export of human tissues and cells was prohibited.", "32. Subsequently, the applicant unsuccessfully attempted to transfer her embryos to the B. clinic (a private clinic in Bucharest). In their response to the Government on why the transfer was not possible, on 6 October 2011 the B. Clinic informed that they could not proceed with the transfer without relevant medical information concerning the embryos and their medical history, including data on how they had been preserved from the very beginning. Consequently and having regard to the fact that the clinic did not have the special quarantine conditions needed for deposit of the embryos, the transfer could not be carried out in compliance with the applicable legal provisions.", "33. On 12 October 2011, a DIICOT prosecutor issued a decision, in which it was held that having regard to the High Court’s ruling and to the fact that the only State medical institutions accredited to function as “human cells and/or tissue banks” were respectively the Prof. Dr. Panait Sârbu Obstetrics and Gynaecology Hospital in Bucharest and the Emergency County Hospital in Cluj, for reasons of efficiency the first institution was to become the new custodian of the applicant’s embryos. The embryo transfer was to be carried out by a specialist transport company, the costs being borne by the DIICOT. All documents regarding the maintenance of the embryos were to be transferred to the new custodian.", "The prosecutor’s decision was not contested by the applicant.", "34. In accordance with this decision, on 19 October 2011 the embryo transfer was carried out and the embryos placed in the Assisted Reproduction Laboratory within the Prof. Dr. Panait Sârbu Hospital, the newly appointed custodian. According to a letter sent by the Ministry of Health to the Government on 15 December 2011, the new custodian was accredited as a genetic bank and human cell and tissue bank, and was also authorised to assist the applicant with any procedure related to artificial insemination.", "35. In a letter of 11 November 2011, the applicant submitted that the transfer of the embryos had once more been carried out without her consent and even without her being consulted or informed in advance. She further stated that in the Prof. Dr. Panait Sârbu Hospital she had had bad experiences, in so far as in 2007 she underwent two unsuccessful IVF procedures there and therefore she could no longer trust the professional capacity of those doctors. She considered that she was entitled to be assisted for future IVF by doctors of her choice, in whom she trusted; therefore the transfer of her embryos into the above-mentioned clinic had denied her that right.", "The applicant requested the opportunity to transfer her embryos to a clinic of her choice, at the expense of the Romanian authorities, who were responsible for the situation created and also for the well-being of her embryos.", "36. By a letter of 23 December 2011, the Prof. Dr. Panait Sârbu Hospital informed the applicant’s representative that from 16 January 2012 they could be contacted to set a date on which the applicant, in the presence of an embryologist, could come to take possession of her genetic material in order to transfer it elsewhere, in accordance with the applicable rules and regulations set by the NTA.", "By a letter sent to the Court on 3 March 2012, the applicant stated that she had found a clinic outside Bucharest “willing to help” her and that a date of transfer was “hopefully” imminent. In the meantime, she had also tried to set up a new procedure in the hope of a new pregnancy. She further stressed the trauma she had gone through on account of the State’s successive interferences with her right to have another child by IVF.", "37. On 14 May 2012, the applicant alleged that she had contacted many clinics in Romania regarding the transfer of her embryos, but in spite of the fact that they were open to the idea at the beginning, “after further evaluation, the risk for them seemed to high” and no transfer was agreed.", "38. The Government replied that on one hand, the applicant’s assertions were too vague and unsubstantiated, and on the other hand, that she had not acted with specific diligence to transfer her embryos from Prof. Dr. Panait Sârbu clinic, either to start an IVF procedure or at least to get more information about how her embryos were being taken care of in that clinic.", "On 19 June 2012, the Government sent a document issued by the Prof. Dr. Panait Sârbu clinic in which it was confirmed that the applicant could initiate an IVF procedure in that clinic, with the assistance of a doctor and an embryologist of her choice, whether from Romania or from abroad, in so far as these two had a license to practice in Romania. Furthermore, a letter from the private clinic M.N.L. in Bucharest was appended, stating that the clinic was willing to take the applicant’s embryos while its doctors would monitor both the patient and the embryo-transfer.", "On 22 June 2012, the applicant met the manager of the M.N.L. clinic; following their discussion, she wrote a letter to the clinic in which she asked for more information concerning the concrete stages envisaged for the embryo transfer, as well as a precise date on which such a transfer could be accomplished." ]

[ "II. RELEVANT DOMESTIC AND COMPARATIVE LAW", "A. Health-Care Reform Act (Law no. 95/2006)", "39. The Act is divided into seventeen titles, covering a wide array of subjects specific to the public health area. Title VI contains provisions covering the procurement and transplant of organs, tissues and cells of human origin used for therapeutic purposes, the donors of organs, tissues and human-origin cells, the donation and transplant thereof and the financing of transplant activity. It transposes into national legislation Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells. It also defines the role and responsibilities of the National Transplant Agency, as the main competent authority in the field of the procurement and transplant of organs, tissues and cells of human origin, including the accreditation, designation, authorization or licensing of tissue establishments and tissue and cell preparation processes.", "Section 143", "The National Transplant Agency shall be responsible for the coordination, supervision, approval and implementation of any provisions regarding transplant activities.", "Section 148", "(4) Any transplant of tissue and cells of human origin may be processed only from the banks accredited or approved by the National Transplant Agency...", "(9) Imports or exports of tissue and cells shall be possible only if specifically authorised by the National Transplant Agency.", "B. Order of the Minister of Public Health no. 1763 of 12 October 2007", "40. This sets out provisions governing the mechanisms to be put into place to ensure the quality and safety of tissues and cells and their traceability, in compliance with the relevant European law requirements.", "C. Order of the Minister of Public Health no. 1225 of 1 July 2008", "41. This lists the tissue establishments accredited, designated, authorized or licensed to function as tissue and human cell banks and/or users. Neither the clinic S., nor the IFM appear in this Act.", "D. Romanian Criminal Procedure Code", "42. In its relevant parts concerning the procedure on the sequestration of goods pending criminal investigation, the code reads as follows:", "Article 165", "(1) The authority that enforces the sequestration ( sechestru ) must identify and evaluate the goods in question; it may, if need be, make recourse to experts. [...]", "(9) If there is the danger of estrangement, other movables sequestered will be sealed or taken away, and a custodian can be appointed.", "Article 166", "(1) The body that enforces the sequestration draws up an official report on all acts performed under Section 165, including a detailed description of the goods sequestered and specifying their value...", "Article 168", "(1) Against this measure taken and of its enforcement means, the defendant, the party bearing the civil responsibility, as well as any other interested person may complain to the criminal investigation body who ordered the measure or to the prosecutor who supervises the criminal investigation, before summoning the court, after which the complaint is addressed to the relevant court.", "(2) The court decision may be appealed against separately. The appeal does not suspend the execution.", "(3) After the final settlement of the criminal trial, if no complaint has been lodged against the enforcement of the assurance measure, it may be contested under the civil law.", "Article 169", "(1) If the criminal investigation body or the court finds that items taken away from the defendant, or from any other person who received them in custody, are the property of the victim or have been wrongly taken away from him/her, it orders the return of those items to the victim. Any other person who claims a right over the things taken away may ask under Article 168 for enforcement of this right and return of the items taken.", "(2) The items taken away are returned only if this does not impede the revealing of the truth and the just settlement of the cause, and imposes upon the person to whom they are returned the obligation to keep them until the decision is declared final.", "E. Comparative Law", "43. An overview of the law and practice concerning artificial procreation in general and on the standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells in Europe is included in S. H. and Others v. Austria ([GC], no. 57813/00, §§ 35-44, 3 November 2011).", "THE LAW", "I. ADMISSIBILITY OF THE APPLICATION", "44. In their observations submitted on 2 September and 6 October 2010, the Government raised three preliminary objections, as follows.", "45. Firstly, the Government cited the lack of victim status for the applicant, in so far as her claim to retrieve her embryos from the IFM had already been allowed by the Prosecutor in the decision of 12 November 2009.", "46. Secondly, the Government contended that the applicant became the client of S. Clinic, a private clinic, in June 2008, when the clinic did not have a proper licence, either as a bank for genetic material or as a clinic specialising in IVF. It is submitted that the clinic was apparently accredited by the NTA to carry out tissue banking activities (processing, deposit and distribution) only on 15 July 2009; however, the accreditation itself is currently under criminal investigation (see also paragraph 8 above). In any event, the clinic has never received authorization – which would imply authority to carry out removals and transplants - as a few days after its accreditation the DIICOT launched their investigation and the activity of the clinic was suspended.", "It followed that the State could not be held responsible ratione personae for the applicant’s choice, which determined certain subsequent effects on her right to a private life, in so far as it was the applicant who had freely chosen the services of S., in spite of the fact that the clinic did not comply with the legal and medical requirements for its proper functioning in the IVF field. From that respect, in making her choice the applicant proved to have shown a certain lack of diligence ( culpa in eligendo ) in so far as any diligent person would normally make minimal preliminary inquiries about a clinic which she/he intends to entrust with the safeguarding of their embryos.", "47. Finally, the Government contended that the applicant had at her disposal the legal provisions of Law no. 554/2004 regarding administrative proceedings, which allowed her to contest the NTA’s refusal to authorise a transfer of embryos from the IFM into a private clinic, a legal remedy which she had not used.", "48. The applicant argued that in spite of the prosecutor’s decision of 12 November 2009, she was still not able to transfer her embryos to a specialised clinic where she would be able to undergo another IVF procedure.", "She further contended that when she approached the S. Clinic she was in fact following her doctor, who used the facilities of that clinic. Furthermore, the applicant disagreed that a patient had the obligation to check a priori all the authorisations and licences of a clinic he/she intended to approach; it was the responsibility of the State to make sure that a clinic which is allowed to function operates in compliance with the applicable legal and medical requirements, and yet, in June 2008 when she underwent the IVF at S., the latter had been allowed to function for almost a decade, in a building 500 m away from the NTA’s headquarters, but apparently without the required licence. From that respect and in view also of the state authorities’ hesitations when handling her case, the State’s failure to provide and properly implement a sufficiently clear legal framework in this area of expertise could not be denied.", "49. The Court firstly notes that pending proceedings before it, namely on 28 July 2010, the applicant lodged a request with the domestic administrative courts, asking them in accordance with Law no. 554/2004 to oblige the NTA to authorise the transfer of her embryos from the IFM into a specialised clinic, whether in Romania or abroad. The proceedings ended on 17 May 2011, when the Romanian highest court allowed the applicant’s claims.", "From that respect, the Court considers that the Government’s preliminary objection concerning the exhaustion of domestic remedies has been left without object.", "Secondly, having regard to the final judgment given in the above-mentioned proceedings, which confirmed that it was impossible for the applicant to retrieve and transfer her embryos on account of the NTA’s obstructive interventions which have thus infringed the applicant’s rights and interests protected by Article 8 of the Convention (see paragraph 30 above), the Court estimates that the Government’s remaining objections have lapsed.", "50. The Court then considers that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "51. The applicant’s complaint essentially concerns a breach of her right to a private and family life in so far as she was prevented from becoming a parent by means of an IVF procedure using her frozen embryos, on account of the State’s failure to offer her the assistance she required in the matter, namely by allowing her to transfer her embryos into a specialised clinic of her choice.", "Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties’ submissions", "52. The applicant denied any responsibility for the events that took place from July 2009, in so far as it was the Prosecutor who had decided at the time to transfer her embryos into an unauthorised clinic, which triggered the NTA’s subsequent refusal to allow her to retrieve and transfer her embryos into a specialised and authorised clinic. It was the responsibility of the state institutions to be aware of the fact that, once transferred into an unauthorised location, the embryos would have to remain there, in conformity with the European and national regulations in this sensitive field of processing and depositing human cells and tissue.", "The applicant further contended that it was the lack of communication or even conflict between the state institutions involved in this area of expertise that obstructed her from placing her embryos in a specialised clinic where she would be able to start a new IVF procedure. These conflicts were all the more prejudicial to her, in view also of the fact that she was turning 45, and had therefore less and less chance of a successful IVF procedure.", "53. The Government submitted that even assuming that there has been an interference with the applicant’s right to private life in the present case, such interference was prescribed by the law and it was necessary in a democratic society, as it was aimed at the protection of public order, namely the prevention of crime, at protecting health and the rights and liberties of others.", "Furthermore, the interference complained of was proportional, for the following reasons.", "At the outset, it was the applicant who freely placed herself in a risky situation by using, in June 2008, the facilities of a clinic that was neither authorised to operate in the IVF field, nor to function as a bank of genetic material. According to the information provided by the NTA, at the time of the IVF procedure neither the clinic S., nor the applicant complied with the existing legal and medical requirements. There was no information in the applicant’s medical file prepared at the S. Clinic regarding the collection of the respective sex cells, their origin, the procedures followed in their subsequent handling, nor any data on the storage of the embryos, steps which were obligatory for IVF procedures. The S. Clinic was the only body responsible for keeping and providing data concerning the traceability of the genetic material, and without that information no medical procedure should have taken place. In this context, the applicant’s choice of S. rendered applicable the principle according to which nemo auditor propriam turpitudinem allegans.", "The measures subsequently taken by the authorities in connection with the closing of the S. Clinic were aimed at putting an end to an activity which raised suspicions as to its lawfulness and medical safety. Even in such a context, the interests of the applicant were accommodated, in so far as her request to retrieve her embryos was promptly allowed by the prosecutor, a decision that was never contested by the applicant.", "B. The Court’s assessment", "54. The Court firstly notes that it is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant’s right to respect for her private life. The Court agrees, since “private life”, which is a broad term, encompassing, inter alia, elements such as the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ IV, and A, B and C v. Ireland [GC], no. 25579/05, § 212, 16 December 2010) or the right of a couple to conceive a child and to make use of medically assisted procreation to that end, such a choice being clearly an expression of private and family life (see S. H. and Others v. Austria, cited above, § 82).", "55. The Court pinpoints that the issues complained of in the present case particularly relate to the NTA’s refusal to authorise the applicant to transfer her embryos from the IFM into a specialised clinic of her choice, where she could make use of these embryos via an IVF procedure. The reason given by the Romanian authorities for that refusal was that such an authorisation would be in breach of European and national legislation concerning the standards of quality and safety for the processing and depositing of human tissue and cells.", "In this context, the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life, even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Evans, cited above, § 75).", "In the present case, the Court will approach the case as one involving an interference with the applicant’s right to a private life, since she was in fact prevented from using her embryos by the state authorities, who, in their turn, relied on the legal provisions applicable in the matter and established specific and strict requirements, that were not met in the applicant’s case. In any event, as noted above, the applicable principles regarding justification under Article 8 § 2 are broadly similar for both the analytical approaches adopted ( see S. H. and Others v. Austria, cited above, § 88).", "56. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned.", "1. In accordance with the law and legitimate aim", "57. The Court considers that the measure at issue, namely the prosecutor’s decision made in the context of criminal proceedings started against S. Clinic, to seize the embryos and place them “in custody” in a State institution, was in accordance with the provisions of Article 165 of the Romanian Criminal Procedure Code. The measure was taken with the approval and in cooperation of the Ministry of Public Health (see paragraph 23 above).", "At the same time, the measure pursued a legitimate aim, namely the prevention of crime, the protection of health or morals and the protection of the rights and freedom of others in the context of a clinic operating without the required licence necessary in such a sensitive field as assisted reproduction procedures. The aim of the measure as such has not been in dispute between the parties, who concentrated their arguments on the necessity for the interference.", "2. Necessity in a democratic society and the relevant margin of appreciation", "58. In that connection the Court reiterates that in order to determine whether the measures taken were “necessary in a democratic society” it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see, among many other authorities, P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002-VI).", "59. In cases arising from individual applications, the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see Olsson v. Sweden (no. 1), 24 March 1988, § 54, Series A no. 130). Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation, in respect mainly of procedures to be followed or authorities to be involved and to what extent, especially since the use of IVF treatment gave rise then and continues to give rise today to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments. It is why in such a context the Court considered that the margin of appreciation to be afforded to the respondent State is a wide one (see S.H. and Others v. Austria, cited above, § 97). The State’s margin in principle extends both to its decision to intervene in the area and, once it has intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests (see Evans, cited above, § 82).", "60. Having this in mind and turning to the circumstances of the present case, the Court finds that it has not been shown that the decision of the prosecutor to confiscate the genetic material found at S. Clinic and to deposit it with a custodian (namely, the IFM) was arbitrary or unreasonable.", "However, the subsequent effects on the applicant’s right to private life of this measure taken in the context of criminal proceedings launched against S. were, as underlined by the national courts, aggravated by the NTA’s obstructive and oscillatory attitude, which triggered the impossibility for the applicant to transfer her embryos into a clinic specialising in assisted reproduction procedures (see paragraphs 29-30 above).", "61. The Court nevertheless notes that in the judgment of 17 May 2011, the highest Romanian court expressly acknowledged that the applicant had suffered a breach of her rights under Article 8 on account of the NTA’s refusal to allow an embryo transfer from the IFM to a specialist clinic, and offered her the required redress for the breach, namely that the embryos be transferred into a specialised and authorised clinic. This transfer was enforced in a relatively short period of time following the pronouncement of the High Court’s judgment and consequently, the applicant’s embryos have now been transferred and deposited in a specialist clinic, namely in the Department for Assisted Reproduction within the Prof. Dr. Panait Sârbu public hospital.", "It follows that the applicant’s initial complaint, that it was impossible for her to retrieve and transfer her embryos from the IFM, has remained without object in so far as the domestic authorities have adopted and implemented measures albeit with some delay designed to secure respect for the applicant’s right to a private life and consequently the transfer as required by the applicant was made and the embryos have now been deposited in a specialised and authorised clinic.", "62. The applicant’s further complaint refers to the fact that in the new clinic she would not be able to proceed with another IVF on account of her past bad experiences in that same place. However, while refraining from any speculation on the matter, which falls outside its competence, but having regard to the latest information received from the parties (see paragraphs 34-38 above), the Court considers that it has not been provided with sufficient evidence that the applicant would not be able to have her interest accommodated in relation to the desired IVF procedure in so far as to sustain her claims under Article 8.", "63. Therefore, having regard to the developments of the applicant’s situation, the Court finds that it has not been shown that the State failed to strike a fair balance between the competing interests. Accordingly, there is no appearance of a failure to respect the applicant’s right to private life.", "64. There has therefore been no violation of Article 8 of the Convention.", "III. RULE 39 OF THE RULES OF COURT", "65. In view of its findings set out above, the Court considers it is appropriate to lift the interim measure indicated to the Government of Romania under Rule 39 of the Rules of Court (see paragraph 4 above)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first applicant, Mrs Daniela Nedescu, is married to the second applicant, Mr Călin Nedescu. They were born in 1976 and live in Bucharest.", "6. In 2008 the applicants, who were childless but wanted to have children, decided to try assisted reproduction at a private clinic, the S. Clinic.", "It appears that the S. Clinic had previously applied to the National Transplant Agency (“the Transplant Agency”) for authorisation to function as a cell and tissue bank and user in accordance with the legal requirements, an application which was still pending completion in 2008.", "7. Following an ovarian stimulation and in vitro fertilisation, seven embryos were obtained, of which three were transferred immediately to Mrs Nedescu, who became pregnant and gave birth.", "8. The four remaining embryos were frozen and put in storage at the S. Clinic in November 2008 with a view to their future use by Mrs Nedescu.", "9. On 15 July 2009 the procedure for obtaining the required authorisation from the Transplant Agency was completed and the S. Clinic was authorised to act as a medical centre that could function as a storage bank for genetic material.", "10. On 24 July 2009, following a criminal investigation into the delivery of the above authorisation, the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General ’ s Office of Romania (DIICOT) closed the S. Clinic, seized all the genetic material found there, including the applicants ’ embryos, and transferred it to the Mina Minovici Institute of Forensic Medicine (“the IFM”).", "The applicants ’ embryos and those of other couples were kept in containers. Each container had different vials for each set of embryos.", "11. It appears from a DIICOT report dated 9 November 2009 that the embryos of more than 240 families were seized at the S. Clinic.", "As with other patients of the Clinic, the applicants were neither informed of the seizure, which they learned about from the media, nor consulted about the transfer of the seized embryos from the S. Clinic to the IFM.", "12. On 13 March 2010 the applicants requested that DIICOT allow them to retrieve their embryos as they wished to undergo a new assisted reproduction procedure in another clinic. They pointed out that it was of the utmost importance that they be allowed to retrieve the embryos rapidly since the storage period was to expire in August 2010 and there was a strict procedure for the transfer.", "13. On 30 March 2010 DIICOT allowed the applicants to recover the embryos directly from the IFM. They had to be accompanied by an embryologist and provide a special container with liquid nitrogen.", "14. On 21 July 2010 the applicants went to the IFM accompanied by an embryologist, however, they were not allowed to retrieve the embryos. They were asked instead to show that the Transplant Agency had approved the transfer.", "15. The first applicant, under the supervision of a specialist doctor, therefore attempted to have a new ovarian stimulation in the hope of creating new embryos.", "16. However, on 18 August 2010, while being treated for premature menopause, she underwent a medical examination which revealed that her state of health did not allow her to undergo another ovarian stimulation.", "17. The applicants joined the criminal proceedings instituted against the administrative board of the S. Clinic and the doctors practising within or in cooperation with it, and sought damages under domestic tort provisions for not being able to use the embryos. In an interlocutory judgment of 29 November 2010 the applicants ’ action was dismissed for lack of victim status on the grounds that the IFM ’ s refusal to allow them to recover the embryos had no link with the crimes allegedly committed by the accused. The applicants were directed to bring a claim for damages before a civil court.", "18. The applicants therefore resumed their efforts to retrieve the embryos deposited with the IFM, but were not successful.", "19. In November 2010 they brought an action before the Bucharest Court of Appeal against the Transplant Agency and the Ministry of Health, seeking to obtain the agency ’ s authorisation to transfer their embryos to an authorised clinic, in Romania or abroad, where Mrs Nedescu could try again to become pregnant.", "20. On 12 December 2010 Mrs Nedescu had another examination, which led to the same conclusions as on 18 August 2010.", "21. On 13 December 2010 the Transplant Agency informed the applicants that it refused to approve a transfer of the embryos. It stated that DIICOT had moved the embryos to the IFM unlawfully as the institute had never obtained the required permit to act as a tissue and cell bank. The provisions of the Code of Criminal Procedure relied on by DIICOT had also not provided any guarantees for the safety of the embryos deposited with the IFM.", "22. At a hearing on 22 March 2011 the applicants asked the Court of Appeal to order the transfer of the embryos from the IFM to a private clinic of their choice located in Sibiu, the P. Clinic, which was authorised to carry out assisted reproduction and act as a genetic material storage bank.", "23. The court dismissed the applicants ’ application on the same day. It relied on the provisions of section 148(4) and (5) of the Health Care Reform Act. It found that the Transplant Agency ’ s refusal to allow the transfer of the embryos had been lawful since neither the S. Clinic nor the IFM had been accredited or authorised to function as genetic material banks and the transfer of genetic material could only be performed between institutions authorised to function as such storage banks.", "24. The applicants appealed against the judgment to the High Court of Cassation and Justice.", "25. On 12 October 2011 DIICOT appointed a public hospital, the P.S. Hospital, as the new legal custodian for all the embryos, including the ones belonging to the applicants.", "The transfer of the embryos to the new custodian took place on 19 October 2011. According to a report drafted by the judicial authorities on that occasion, Ms A.M., the doctor from P.S. Hospital who took delivery of the embryos, drew up a disclaimer to the effect that the genetic material listed in the inventory accompanying the embryos had been received without any prior checks of the vials, that it had not been possible for her to check each individual item owing to the absence of the embryologist who had participated in the initial freezing and that the procedures in use at that time were different from those used by the first custodian.", "26. On 20 December 2011 the High Court of Cassation and Justice allowed the appeal against the judgment of 22 March 2011 and ordered the Transplant Agency to implement the prosecutor ’ s decision to return the embryos by allowing their transfer from the IFM to an authorised clinic or hospital of the applicants ’ choice in Romania or abroad.", "It found, firstly, that the Transplant Agency, which was organised as a structure within the Ministry of Health, had been duly informed about the investigating authorities ’ decision to deposit the material seized at the S. Clinic with the IFM, and that, secondly, the Ministry of Health had signed the record drawn up at the end of the procedure for moving the embryos to the IFM, together with the investigating authorities.", "It held that in so far as the Transplant Agency ’ s task was to coordinate the activities of procuring, processing, preserving, storing, approving and distributing human tissue and cells in Romania, there had been no legal grounds for it to interfere with the implementation of the prosecutor ’ s decision to return the embryos to the applicants.", "The High Court further relied on the Government ’ s observations submitted to the Court in the case of Knecht v. Romania (no. 10048/10, 2 October 2012), from which it could be seen that the investigating authorities had authorised Ms Knecht to retrieve her embryos from the IFM, and that the Government ’ s understanding was that Ms Knecht had been lawfully entitled to arrange for their transfer to an authorised clinic. The High Court stressed that Mr and Mrs Nedescu ’ s embryos had been stored in the same container as those belonging to Ms Knecht. There was therefore nothing to prevent them from arranging the transfer of their embryos to an authorised clinic or hospital of their choice, in Romania or abroad.", "Lastly, the court granted costs and fees of 4,000 Romanian lei (RON) to the applicants.", "27. On 26 March 2012 DIICOT informed the applicants that the prosecutor had appointed P.S. Hospital as the new legal custodian of their embryos. They therefore had to agree on a transfer date with that institution in order to retrieve the embryos.", "28. The applicants contacted P.S. Hospital, which informed them on 27 September 2012 that they could only retrieve the embryos if they were accompanied by a representative from the Transplant Agency, an embryologist from the S. Clinic, where the embryos had been stored initially, and a DIICOT representative.", "29. On 1 November 2012 P.S. Hospital informed the applicants that in order to retrieve their embryos they had to agree on a date, obtain an authorisation document from the Transplant Agency, make sure a certified specialist embryologist was present and provide a special container with liquid nitrogen from an accredited transportation company.", "30. On 12 November 2012, in reply to a request from the applicants, P.S. Hospital informed them that it could not transfer the remaining embryos to Mrs Nedescu as they had only been appointed as a custodian by DIICOT. Nevertheless, the applicants could attempt to obtain new embryos at the hospital which could then be transferred to her.", "31. In a letter dated 7 January 2013 to the Government Agent, a representative of P.S. Hospital reiterated that the embryos could only be retrieved after prior approval from the Transplant Agency and that an embryologist from the S. Clinic and a DIICOT representative had to be present.", "It also stated that they declined any responsibility for the identification, quality and viability of the frozen embryos deposited with the IFM because DIICOT had not organised any individual identification when the embryos had been transferred. The hospital could therefore only assume that the embryos belonging to the Nedescus were among those that had been transferred to it. The hospital reiterated that the IFM had no authorisation to function as a genetic material bank (for tissues and cells).", "Furthermore, the hospital did not only have the task of implementing DIICOT ’ s decision to allow the applicants to remove the embryos and ensure respect for the conditions that the removal be made in the presence of an embryologist and include the provision of a container with liquid nitrogen. It also had to comply with the relevant legislation on the removal and transfer of genetic material and with the conditions set down by the Transplant Agency in a decision of 3 June 2011, Decision no. 5.", "The representative also stated that the existing embryos could be transferred to the mother at the hospital but that the hospital ’ s own doctors would not carry out the procedure as they could not assume any responsibility owing to the quality of the embryos. However, the hospital preferred that such a transfer be performed elsewhere.", "32. On 16 January 2013 the applicants applied to DIICOT to be appointed custodians of their own embryos. They indicated that they were able to bear the costs of becoming custodians.", "A DIICOT prosecutor informed the applicant ’ s lawyer by telephone that the application had been rejected.", "In a letter dated 18 April 2013 to the Government ’ s Agent, a DIICOT chief prosecutor stated that the cost of appointing the applicants as custodians was very high and that the judicial bodies involved had no competence to make such a decision. In any event, “no formula allowing for consensus among all the parties involved has so far been identified”.", "33. Following the criminal investigation of the S. Clinic (see paragraph 10 above), the High Court of Cassation on 21 October 2014 found its managers, owner and the then director of the Transplant Agency guilty of association for the purposes of creating a criminal group. It handed down various prison sentences.", "III. COUNCIL OF EUROPE DOCUMENTS", "A. Recommendation 1046 (1986) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes", "41. The relevant parts of the Recommendation read as follows:", "“...5. [The Parliamentary Assembly] Considering that, from the moment of fertilization of the ovule, human life develops in a continuous pattern, and that it is not possible to make a clear-cut distinction during the first phases (embryonic) of its development, and that a definition of the biological status of an embryo is therefore necessary;", "6. Aware that this progress has made the legal position of the embryo and foetus particularly precarious, and that their legal status is at present not defined by law;", "7. Aware that adequate provisions governing the use of living or dead embryos and foetuses do not at present exist;", "8. Convinced that, in view of scientific progress which makes it possible to intervene in developing human life from the moment of fertilisation, it is urgent to define the extent of its legal protection;", "9. Having regard to the variety of ethical opinions on the question of using the embryo or the foetus or their tissues, and to the conflicts between values which arise;", "10. Considering that human embryos and foetuses must be treated in all circumstances with the respect due to human dignity...”", "B. Council of Europe Convention on Human Rights and Biomedicine (“Oviedo Convention”) of 4 April 1997", "42. In its relevant parts the Oviedo Convention reads as follows:", "Article 2 – Primacy of the human being", "“The interests and welfare of the human being shall prevail over the sole interest of society or science.”", "Article 18 – Research on embryos in vitro", "“1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo.", "2. The creation of human embryos for research purposes is prohibited.”", "Article 27 – Wider protection", "“None of the provisions of this Convention shall be interpreted as limiting or otherwise affecting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention.”", "IV. EUROPEAN UNION INSTRUMENTS", "43. The relevant parts of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards for the quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells provide as follows:", "“(2) The availability of human tissues and cells used for therapeutic purposes is dependent on Community citizens who are prepared to donate them. In order to safeguard public health and to prevent the transmission of infectious diseases by these tissues and cells, all safety measures need to be taken during their donation, procurement, testing, processing, preservation, storage, distribution and use.", "...", "(7) This Directive should apply to tissues and cells including haematopoietic peripheral blood, umbilical-cord (blood) and bone-marrow stem cells, reproductive cells (eggs, sperm), foetal tissues and cells and adult and embryonic stem cells.", "...", "(13) The donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells intended for human applications should comply with high standards of quality and safety in order to ensure a high level of health protection in the Community. This Directive should establish standards for each one of the steps in the human tissues and cells application process.", "...", "(16) Tissues and cells used for allogeneic therapeutic purposes can be procured from both living and deceased donors. ...", "(20) Any establishment may also be accredited as a tissue and cell establishment, provided it complies with the standards.", "...", "(25) An accreditation system for tissue establishments and a system for notification of adverse events and reactions linked to the procurement, testing, processing, preservation, storage and distribution of human tissues and cells should be established in the Member States.", "...", "(28) An adequate system to ensure the traceability of human tissues and cells should be established. This would also make it possible to verify compliance with quality and safety standards. Traceability should be enforced through accurate substance, donor, recipient, tissue establishment and laboratory identification procedures as well as record maintenance and an appropriate labeling system.", "...", "Article 5 - Supervision of human tissue and cell procurement", "1. Member States shall ensure that tissue and cell procurement and testing are carried out by persons with appropriate training and experience and that they take place in conditions accredited, designated, authorised or licensed for that purpose by the competent authority or authorities.", "...", "Article 6 - Accreditation, designation, authorisation or licensing of tissue establishments and tissue and cell preparation processes", "1. Member States shall ensure that all tissue establishments where activities of testing, processing, preservation, storage or distribution of human tissues and cells intended for human applications are undertaken have been accredited, designated, authorised or licensed by a competent authority for the purpose of those activities.", "...", "4. The competent authority or authorities may suspend or revoke the accreditation, designation, authorisation or licensing of a tissue establishment or of a tissue or cell preparation process if inspections or control measures demonstrate that such an establishment or process does not comply with the requirements of this Directive.", "...", "Article 8 - Traceability", "1. Member States shall ensure that all tissues and cells procured, processed, stored or distributed on their territory can be traced from the donor to the recipient and vice versa. This traceability shall also apply to all relevant data relating to products and materials coming into contact with these tissues and cells.", "2. Member States shall ensure the implementation of a donor identification system which assigns a unique code to each donation and to each of the products associated with it.", "3. All tissues and cells must be identified with a label that contains the information or references allowing a link to the information referred to in Article 28(f) and (h).", "4. Tissue establishments shall keep the data necessary to ensure traceability at all stages.", "...", "Article 10 - Register of tissue establishments and reporting obligations", "1. Tissue establishments shall keep a record of their activities, including the types and quantities of tissues and/or cells procured, tested, preserved, processed, stored and distributed, or otherwise disposed of, and on the origin and destination of the tissues and cells intended for human applications, in accordance with the requirements referred to in Article 28(f). ...", "2. The competent authority or authorities shall establish and maintain a publicly accessible register of tissue establishments specifying the activities for which they have been accredited, designated, authorised or licensed.", "...", "CHAPTER III DONOR SELECTION AND EVALUATION", "Article 12 - Principles governing tissue and cell donation", "1. Member States shall endeavour to ensure voluntary and unpaid donations of tissues and cells.", "Donors may receive compensation, which is strictly limited to making good the expenses and inconveniences related to the donation. In that case, Member States define the conditions under which compensation may be granted.", "...", "Article 13 - Consent", "1. The procurement of human tissues or cells shall be authorised only after all mandatory consent or authorisation requirements in force in the Member State concerned have been met.", "...", "Article 15 - Selection, evaluation and procurement", "1. The activities related to tissue procurement shall be carried out in such a way as to ensure that donor evaluation and selection is carried out in accordance with the requirements referred to in Article 28(d) and (e) and that the tissues and cells are procured, packaged and transported in accordance with the requirements referred to in Article 28(f).", "...", "CHAPTER IV PROVISIONS ON THE QUALITY AND SAFETY OF TISSUES AND CELLS", "Article 16 - Quality management", "1. Member States shall take all necessary measures to ensure that each tissue establishment puts in place and updates a quality system based on the principles of good practice.", "...", "3. Tissue establishments shall take all necessary measures to ensure that the quality system includes at least the following documentation:", "- standard operating procedures,", "- guidelines,", "- training and reference manuals,", "- reporting forms,", "- donor records,", "- information on the final destination of tissues or cells.", "4. Tissue establishments shall take all necessary measures to ensure that this documentation is available for inspection by the competent authority or authorities.", "5. Tissue establishments shall keep the data necessary to ensure traceability in accordance with Article 8.", "Article 19 - Tissue and cell reception", "1. Tissue establishments shall ensure that all donations of human tissues and cells are subjected to tests in accordance with the requirements referred to Article 28(e) and that the selection and acceptance of tissues and cells comply with the requirements referred to in Article 28(f).", "...", "3. Tissue establishments shall verify and record the fact that the packaging of human tissue and cells received complies with the requirements referred to in Article 28(f). All tissues and cells that do not comply with those provisions shall be discarded.", "...", "5. Tissue establishments shall ensure that human tissues and cells are correctly identified at all times. Each delivery or batch of tissues or cells shall be assigned an identifying code, in accordance with Article 8.", "6. Tissue and cells shall be held in quarantine until such time as the requirements relating to donor testing and information have been met in accordance with Article 15.", "Article 21 - Tissue and cell storage conditions", "1. Tissue establishments shall ensure that all procedures associated with the storage of tissues and cells are documented in the standard operating procedures and that the storage conditions comply with the requirements referred to in Article 28(h).", "2. Tissue establishments shall ensure that all storage processes are carried out under controlled conditions.", "3. Tissue establishments shall establish and apply procedures for the control of packaging and storage areas, in order to prevent any situation arising that might adversely affect the functioning or integrity of tissues and cells.", "...", "5. Member States shall ensure that tissue establishments have agreements and procedures in place to ensure that, in the event of termination of activities for whatever reason, stored tissues and cells shall be transferred to other tissue establishment or establishments accredited, designated, authorised or licensed in accordance with Article 6, without prejudice to Member States ’ legislation concerning the disposal of donated tissues or cells, according to the consent pertaining to them.”", "44. The relevant provisions of the Charter of Fundamental Rights of the European Union (2007/C 303 /01 ) are worded as follows:", "Article 1 – Human dignity", "“Human dignity is inviolable. It must be respected and protected.”", "Article 7 – Respect for private and family life", "“Everyone has the right to respect for his or her private and family life, home and communications.”", "45. In a judgment of 18 October 2011 (C-34/10 Oliver Brüstle v. Greenpeace e.V .) the Court of Justice of the European Union (“the CJEU”) clarified the legal definition of the “human embryo”: “ any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted, and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis”. The CJEU further ruled that Article 6(2)(c) of Directive 98/44 excluded an invention from patentability where the technical teaching which is the subject-matter of the patent application would require the prior destruction of the human embryo. The Advocate General Yves Bot recalled in his opinion delivered on 10 March 2011 on that matter that “Directive 98/44 prohibits the patentability of the human body, at the various stages of its formation and development, including germ cells” and asserted that “human dignity is a principle which must be applied not only to an existing human person, to a child who has been born, but also to the human body from the first stage in its development, i.e. from fertilisation” (§ 96).", "V. OTHER INTERNATIONAL INSTRUMENTS", "46. The relevant parts of the Universal Declaration on Bioethics and Human Rights adopted by UNESCO ’ s General Conference on 19 October 2005 provide as follows:", "“The General Conference,", "...", "Recognizing that, based on the freedom of science and research, scientific and technological developments have been, and can be, of great benefit to humankind in increasing, inter alia, life expectancy and improving the quality of life, and emphasizing that such developments should always seek to promote the welfare of individuals, families, groups or communities and humankind as a whole in the recognition of the dignity of the human person and universal respect for, and observance of, human rights and fundamental freedoms,", "...", "Also recognizing that decisions regarding ethical issues in medicine, life sciences and associated technologies may have an impact on individuals, families, groups or communities and humankind as a whole,", "...", "Proclaims the principles that follow and adopts the present Declaration.", "...", "Principles", "Within the scope of this Declaration, in decisions or practices taken or carried out by those to whom it is addressed, the following principles are to be respected.", "Article 3 – Human dignity and human rights", "1. Human dignity, human rights and fundamental freedoms are to be fully respected.", "2. The interests and welfare of the individual should have priority over the sole interest of science or society.", "...”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Health Care Reform Act (Law no. 95/2006)", "34. The Act is divided into seventeen titles, covering a wide array of subjects specific to public health. Title VI contains provisions covering the procurement and transplant of organs, tissues and cells of human origin used for therapeutic purposes, the donors of organs, tissues and cells of human origin, the donation and transplant thereof and the financing of transplant activity. It transposes into national legislation Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards for the quality and safety of the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells.", "35. Section 143 provides that the National Transplant Agency is responsible for “the coordination, supervision, approval and implementation of any provisions regarding transplant activities”.", "36. The relevant subsections of section 148, which deals mainly with the procurement and transplant of tissues and cells from dead bodies, provide as follows:", "“(4) Procured tissue and cells of human origin can be used immediately for transplants or can be processed and deposited in tissue and cell banks, accredited with or approved by the National Transplant Agency.", "(5) Any transplant of tissue and cells of human origin may be processed only from banks accredited with or approved by the National Transplant Agency ...”", "According to subsection 9, the import or export of tissue and cells has to be specifically authorised by the National Transplant Agency in the manner referred to in Annex 7 (export of tissue and cells from dead bodies) and 9 (import), and must be carried out in accordance with the relevant customs legislation.", "B. Orders of the Minister of Public Health no. 1225 of 1 July 2008 and no. 1009 of 6 July 2010", "37. The Orders listed a number of establishments, including the P. Clinic in Sibiu, which were authorised to function as tissue and cell banks and users, but neither the S. Clinic nor the IFM were included.", "C. National Transplant Agency Decision no. 5 of 3 June 2011", "38. The decision reads as follows:", "Article 1", "“From the date of the current decision the transfer of biological material on the territory of Romania between clinics that are legally authorised and accredited must be performed in strict accordance with the following specifications:", "- the procedure for freezing and preserving the embryos;", "- the freezing method used: vitrifying or slow freezing;", "- the freezing kit used and the name of the manufacturer;", "- if a freezing kit was prepared, the components and exact proportions used in the preparation process;", "- the stage of development of the embryos at the time of freezing;", "- documents allowing for the identification of the embryos and their position inside the transport container;", "- documents proving ownership of the embryos;", "- documents proving that keeping the embryos in the cell bank does not present a danger of contamination (in other words, the results of medical tests of the couple during in vitro fertilisation treatment);", "- the conditions of storage of the embryos (with appropriate evidence, for instance temperature charts).", "Article 2", "“All private and public medical institutions shall implement the provisions of the current decision.”", "D. Romanian Criminal Code", "39. Article 118, in force until 2014, read as follows:", "“The following property can be subjected to special confiscation:", "(a) the proceeds of carrying out an act forbidden by the criminal law;", "(b) property which was used, in any way, in the commission of a crime, if it belongs to the criminal or, if it belongs to someone else, where that person knew what it would be used for ...;", "(c) property produced, modified or adapted for the purpose of committing a crime, if it has been used for the commission of the crime and if it belongs to the criminal. If the property belongs to someone else, confiscation is ordered if the creation, modification or adaptation was made by the owner or by the criminal with the owner ’ s knowledge;", "...", "(e) the proceeds of carrying out an act forbidden by the criminal law, if they are not returned to the victim or used to compensate the victim;", "(f) property which cannot be possessed by law.", "...”", "E. Romanian Criminal Procedure Code", "40. In its relevant parts concerning the procedure for the seizure of property during a criminal investigation, the code in force at the time of the events, in June 2009, reads as follows:", "Article 163", "“Precautionary measures are those measures taken during a criminal trial by the prosecutor or by the court and consist of freezing assets, by ordering the seizure of movable and immovable property with a view to a subsequent special confiscation, remedying damage suffered as a result of the crime and to guaranteeing the enforcement of a fine.", "Precautionary measures taken with a view to remedying damage can be ordered in respect of property belonging to the accused or the person facing civil liability.", "Precautionary measures taken with a view to guaranteeing the enforcement of a fine can be ordered in respect only of property belonging to the accused.", "...”", "Article 165", "“(1) The authority that enforces the seizure ( sechestru ) must identify and value the property in question; it may, if need be, have recourse to experts.", "(2) Perishable goods, objects made of precious metal or jewels ... works of art ... and money which have been seized shall in all cases be taken away.", "...", "(9) If there is a danger of alienation, the other movable items that have been seized will be sealed or also taken away, and a custodian can be appointed.”", "Article 166", "“(1) The body that carries out the seizure draws up an official report on all the acts performed under Section 165, including a detailed description of the property seized and specifying its value ... Objections to the seizure by the parties and other interested persons are also mentioned.", "...”", "Article 168", "“(1) The defendant, the party with civil liability, as well as any other interested person, may complain about the precautionary measure and the means of its enforcement to the prosecutor or to the court at any stage in the proceedings.", "(2) An appeal can be lodged separately against the decision of a court. An appeal does not suspend execution.", "(3) If after completion of a criminal trial no complaint has been lodged against the enforcement of the precautionary measure, it may be challenged under the civil law.”", "Article 169", "“(1) Where prosecutors or courts finds that property taken from a defendant, or from any other person who received them in his or her custody, is the property of the victim or has been wrongly taken away from him/her, they order the return of those items to the victim. Any other person who claims a right over the confiscated property can ask under Article 168 for enforcement of that right and the return of the property.", "(2) Confiscated property is only returned if it does not impede the search for the truth and the just settlement of the case, and it imposes on the person to whom it is returned an obligation to retain it until the issuing of a final decision.”", "THE LAW", "I. SCOPE OF THE APPLICATION", "47. The applicants stated in their application that they reserved the right to raise a complaint under Article 2 of the Convention over an infringement of the right to life if their embryos became unviable owing to the acts of the authorities.", "48. The Court notes that the applicants did not eventually complain about a breach of the right to life under Article 2 of the Convention, did not provide any information about the viability of their embryos and made no further submissions in that respect.", "49. The Court will accordingly examine the application solely from the standpoint of the rights provided for by Article 8.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "50. The applicants complained that, as a whole, the authorities ’ behaviour had amounted to a disproportionate interference with their private and family life because for more than six years they had not been allowed to use their embryos for a new assisted reproduction procedure and had thus lost the possibility to have another child. They relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "51. The Government argued at the outset that the State could not be held responsible for acts committed by private persons, such as the S. Clinic, and relied in that regard on Borghi v. Italy (dec., no. 54767/00, ECHR 2002 ‑ V (extracts)) and Kiratli v. Turkey (dec., no. 6497/04, 2 September 2008). They submitted that the applicants and the S. Clinic alone had been responsible for the fate of the embryos and the fact that it had been impossible to use them.", "They further argued that, as had been pointed out in the interlocutory judgment of 29 November 2010, the applicants could have lodged a separate civil action against the doctors from the S. Clinic to seek damages under the tort liability provisions of the Civil Code, but had failed to do so.", "52. The Court notes that the applicants ’ complaint concerned the refusal of the various institutions involved in the custody of the embryos after their seizure to return them at all, even though that had been allowed by the judicial authorities.", "The Government ’ s preliminary objections that the application is incompatible ratione personae and its objection as to the non-exhaustion of domestic remedies must therefore be dismissed.", "53. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "54. The applicants complained that since 2010 they had been unable to use their embryos, deposited successively with the IFM and P.S. Hospital following their seizure by DIICOT, which had prevented them from attempting to have another child and had amounted to an interference with their right to respect for their private and family life. That interference had been neither lawful nor proportionate to the aim pursued.", "55. They stressed that they had lawfully stored their embryos at the S. Clinic with a view to a future transfer to the mother. They had chosen that clinic because their doctor had been using its facilities. They had not been aware at the time, and could not have been aware, that the S. Clinic had not had the necessary authorisation, as later alleged. The S. Clinic had been well established. It had been operating for almost a decade, had been located near the Transplant Agency in the city centre, less than 800 metres from the main Government building. It had had a huge banner and clear signs outside, and had worked in partnership with other well-established and well-known authorised medical facilities and doctors. Moreover, the S. Clinic had obtained the required authorisation to store genetic material.", "56. The authorities ’ interference with their private and family life had not been provided for by law. First of all, DIICOT ’ s decision to deposit the confiscated embryos with the IFM, which had not possessed the required authorisation to store genetic material, had been unlawful.", "In addition, the Transplant Agency ’ s refusal to implement the prosecutor ’ s decision ordering the return of the embryos had had no legal basis, nor had the Transplant Agency ’ s refusal to obey the decision of the Supreme Court of Justice allowing the applicants to arrange the transfer of the embryos to a clinic of their choice by setting conditions that had been impossible to fulfil.", "57. The applicants also complained that DIICOT ’ s decision to transfer their embryos from the IFM to P.S. Hospital had been made without informing them beforehand or consulting them.", "58. Moreover, the requirements laid down by the new legal custodian, P.S. Hospital, for allowing the applicants to retrieve their embryos had been impossible to meet in practice and had in any event been unlawful.", "59. The applicants also submitted that they had never received an official reply from DIICOT to their request to be appointed custodians of their own embryos. They could easily be transferred to them without harming other embryos as they were stored in separate vials.", "60. The applicants submitted that all the above acts had shown a lack of consistency in respect both of domestic legislation and its implementation by the relevant State authorities.", "61. As a result of those acts the applicants had been put in a situation where they could neither remove their embryos nor use them.", "The situation also had to be looked at in the light of the fact that Mrs Nedescu ’ s health did not allow her to undergo new stimulation treatment in order to obtain new embryos. If their embryos became unviable or were damaged, their chances of having another child would be irretrievably lost.", "Overall, the matters complained of constituted an interference which was disproportionate to the aim pursued.", "62. Lastly, the applicants stressed that their case was of general importance since there were hundreds of other families in a similar situation as they had deposited their embryos at the S. Clinic and were unable to use them on account of the authorities ’ behaviour.", "(b) The Government", "63. The Government referred at the outset to Knecht v. Romania (no. 10048/10, 2 October 2012), which had concerned a similar complaint. The case had been lodged by Ms Knecht, whose embryos had been stored in the same container as those of the applicants. The Court had found that although there had been an interference with the applicant ’ s right to respect for their private life that interference had been in compliance with the requirements of paragraph 2 of Article 8. The Government argued that the same reasoning should be applied in the present case.", "64. The measures taken by the authorities had pursued the aim of preventing crime and protecting the health and the rights and freedoms of others. In the present case, the Romanian authorities had not exceeded the wide margin of appreciation enjoyed by the State in the matter of assisted reproduction.", "First of all, the prosecution authorities ’ seizure of the genetic material found at the S. Clinic had been justified and devoid of any arbitrariness. The applicants had been able to ask for the return of their embryos from the IFM. In addition, its refusal to return the embryos without the consent of the Transplant Agency had been in compliance with domestic regulations.", "Secondly, the High Court of Cassation and Justice had on 20 December 2011 allowed the transfer of the embryos to P.S. Hospital, which had been authorised to function as a genetic material bank. The conditions set by P.S. Hospital for allowing the applicants to withdraw their embryos did not appear to be unreasonable, bearing in mind that the applicants could only use their embryos in a way which did not breach domestic legislation or the administrative regulations of the competent authorities.", "In addition, the applicants had failed to substantiate their statement that Mrs Nedescu ’ s health had prevented her from undergoing another IVF procedure in P.S. Hospital.", "2. The Court ’ s assessment", "(a) Whether there was an interference with the applicants ’ rights under Article 8", "65. The Court is called to determine in the first place whether the facts of the present case fall within the scope of the applicants ’ rights under Article 8 of the Convention.", "(i) The principles established in the Court ’ s case-law", "66. Court recalls the principles laid-down in its case-law on Article 8 of the Convention, particularly as they were restated in its recent judgment of Paradiso and Campanelli v. Italy [GC] (no. 25358/12, §§ 159-160), ECHR 2017):", "“159. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91) and, to a certain degree, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B). It can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). The concept of private life also encompasses the right to “personal development” or the right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III), and the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-I, and A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010).", "160. In its judgment in the case of Dickson v. the United Kingdom ([GC], no. 44362/04, § 66, ECHR 2007-V), concerning the refusal to grant the applicants – a prisoner and his wife – artificial insemination facilities, the Court concluded that Article 8 was applicable, in that the refusal of artificial insemination facilities at issue concerned their private and family lives, specifying that those notions incorporate the right to respect for their decision to become genetic parents. In the case of S.H. and Others v. Austria ([GC], no. 57813/00, § 82, ECHR 2011) – which concerned couples wishing to have a child using gametes from donors – the Court held that the right of a couple to conceive a child and to make use of medically assisted reproduction for that purpose is also protected by Article 8, as such a choice is an expression of private and family life.”", "67. In that case the Court further held that a genuine intention on behalf of the applicants to become parents, which implied that a major part of their lives was focused on realising their plan to become parents, in order to love and bring up a child, was relevant both for their right to respect for their decision to become parents, and for their personal development through the role of parents that they wished to assume vis-à-vis the child; it concluded that the facts of the case fell within the scope of the applicants ’ private life ( Paradiso and Campanelli, cited above, §§ 163-164).", "68. The Court had also held that an applicant ’ s ability to exercise a conscious and considered choice regarding the fate of her embryos concerned an intimate aspect of her personal life and triggered the application of Article 8 of the Convention from the standpoint of the right to respect for private life ( Parrillo v. Italy [GC], no. 46470/11, § 159, ECHR 2015.", "69. Finally, in the case of Vo v. France [GC] (no. 53924/00, ECHR 2004 ‑ VIII) the Court held as follows, in respect of the nature and degree of protection due to a human embryo:", "“84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus (see paragraphs 39-40 above), although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person [...] require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2.", "...”", "(ii) Application of the above-mentioned principles to the instant case", "70. In the present case the Court considers that the joint parental project of the applicants, who wish to have a child by making use of assisted procreation using their own embryos is an intimate aspect of their private life (see also Knecht, cited above, § 54).", "71. Unlike the applicant in Knecht, the Court notes that the complaint in this case was neither about the seizure of embryos nor the refusal of a court to return embryos to a clinic of the applicants ’ choice as the judicial authorities had allowed such a return (compare and contrast Knecht, cited above, §§ 57-62).", "72. The applicants ’ complaint concerned the refusal by the various administrative authorities to actually carry out the return of the remaining embryos that had been created at the S. Clinic, despite orders from the judicial authorities, which in turn prevented them from the possibility of having another child (see paragraphs 8 and 50 above).", "73. The Court notes in particular that following the seizure of their embryos and their being deposited with the IFM, the applicants attempted on numerous occasions to recover them, but failed each time. On 21 July 2010 the IFM, where the embryos had been deposited first of all, refused to allow the applicants to retrieve them (see paragraph 14 above). On 13 December 2010 the Transplant Agency notified the applicants of its refusal to allow recovery of the embryos (paragraph 21 above). On 22 March 2011 the Bucharest Court of Appeal refused to allow the recovery of the embryos by way of their transfer to a clinic of the applicants ’ choice (paragraph 23 above). Finally, P.S. Hospital, the new custodian appointed on 26 March 2011, refused to allow the retrieval ordered by DIICOT, which would have implemented the High Court of Cassation ’ s decision of 20 December 2011 (see paragraph 26 above), as it on each occasion set different conditions for such a retrieval and for a transfer to Mrs Nedescu. On 27 September 2012 the condition set by the hospital was the presence of a representative from the Transplant Agency and of the embryologist from S. Clinic; on 1 November 2012 the hospital said it required an authorisation document from the Transplant Agency and the presence of a certified embryologist and a special container; on 12 November 2012 it told the applicants that it refused to transfer the embryos to Mrs Nedescu; and on 7 January 2013 it informed the Government that the embryos could only be retrieved if the Transplant Agency gave its prior approval and it also required the presence of an embryologist from the S. Clinic and a DIICOT representative (see paragraphs 26 - 29 above).", "74. A request by the applicants to be appointed custodians of their own embryos was likewise rejected on 18 April 2013 (see paragraph 32 above).", "75. In view of the above considerations, the Court finds that preventing the applicants from retrieving their embryos as ordered by the High Court of Cassation constituted an interference with their right to respect for their private life.", "(b) Compliance with Article 8 § 2", "76. Such an interference will be contrary to Article 8 unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, among many other authorities, Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, § 34; Enea v. Italy [GC], no. 74912/01, § 140, ECHR 2009; and Roman Zakharov v. Russia [GC], no. 47143/06, § 227, ECHR 2015).", "77. The Court reiterates that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008). The foreseeability requirement also means giving individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)).", "78. The Court must therefore determine whether the various institutions ’ actions or omissions that interfered with the applicants ’ private life were in line with the lawfulness requirement of Article 8 § 2, as set out above.", "79. In that regard, it notes at the outset that the Government have not relied on any specific legal provisions in support of their submission that the interference was provided for by law.", "The Court will therefore assess the lawfulness of the interference having regard to the information at its disposal, notably the reasoning of the domestic courts and other institutions involved.", "80. The return of the embryos or their transfer to a clinic of the applicants ’ choice was allowed in straightforward fashion by the judicial authorities: on 30 March 2010 by DIICOT, which had taken the seizure measure in the first place (see paragraph 13 above), and on 20 December 2011 by the High Court of Cassation and Justice (see paragraph 26 above). While the seizure of the embryos, which is not a grievance in the current case, appears to have been based on Article 163 of the Criminal Procedure Code because of the criminal proceedings against the S. Clinic (see paragraph 40 above), neither the subsequent deposit of the embryos with the IFM within the framework of the criminal proceedings nor the conditions for their retrieval from either the IFM or the new custodian appear to have had a clear basis in domestic law.", "81. The Court takes note of the provisions which regulate the storage and use of genetic material (see paragraphs 34 to 36 and 38 above), which were relied on directly or indirectly by some of the authorities and institutions when they refused to implement the judicial authorities ’ decisions to put an end to the seizure measure and order the return of the embryos, and also when they set additional conditions for implementing those decisions (see paragraphs 21, 23 and 31 ).", "82. It further notes that despite those provisions, the various institutions involved disagreed on the conditions under which the DIICOT order to return the embryos could be carried out. One disagreement was on the need for prior approval by the Transplant Authority: the IFM, the Court of Appeal and P.S. Hospital considered that the Transplant Agency ’ s approval was required (see paragraphs 14, 23, 29 and 31 above), while DIICOT did not. The High Court, in turn, found that the requirement for such approval was unlawful (see paragraphs 13, 26 and 27 above).", "Moreover, the new custodian, P.S. Hospital, repeatedly argued that DIICOT ’ s depositing of the embryos with the IFM had been unlawful as the IFM had not been authorised to function as a genetic material bank. It also considered that moving the embryos from the IFM to the Hospital had been carried out in violation of the lawful requirements for such a transfer.", "83. Lastly, the Court cannot ignore the fact that P.S. Hospital considered that the flaws in the legal procedures related to the depositing, moving and handling of the embryos had been such that it seemed to be impossible to identify with certainty which embryos belonged to the applicants. It also stated that it could only store the embryos and could not perform any other operations with them (see paragraph 31 above).", "84. In the light of the above, the Court finds that the manner in which the judicial and administrative authorities involved implemented and interpreted the relevant legal provisions concerning the seizure, the storage following such a seizure and the return of the applicants ’ embryos was incoherent and thus lacked the required foreseeability.", "85. In conclusion, the Court finds that the interference with the applicants ’ right to respect for their private life was not provided for by law within the meaning of Article 8 § 2 of the Convention.", "86. That being so, the Court is not required to determine whether the interference pursued a legitimate aim and, if so, whether it was proportionate to the aim pursued.", "87. There has accordingly been a violation of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "88. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "89. The applicants claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage. They submitted that as a result of the authorities ’ interference with their right to respect for their private life they had lost the chance to have a second child and had thus suffered distress, humiliation and frustration, which had been exacerbated by the unlawful nature of the interference.", "90. The Government contested the claim.", "91. The Court considers that the applicants must have sustained non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found (see paragraph 84 above), and making its assessment on an equitable basis, the Court awards the applicants jointly EUR 7,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "92. The applicants also claimed EUR 5,580 for legal costs and expenses incurred both at the domestic level and during the proceedings before the Court, which they wished to be paid directly to their representative. A contract of legal assistance and a detailed document were submitted indicating a fee of EUR 80 per hour and the precise dates and the overall number of hours worked in preparing the case.", "93. The applicants ’ representative argued that the number of hours spent on the case was not excessive and was justified by its complexity and detailed nature. The time was also justified by repeated attempts to obtain information on developments at the domestic level, on the background of a lack of coherence in the authorities ’ reactions. As to the hourly fees, the representative argued that they were well below the average normally charged by law firms in Bucharest, that is EUR 200 per hour.", "94. The Government objected and argued that the amount claimed was excessive. They also pointed out that the applicants had already been granted RON 4,000 (some EUR 880), covering costs for the proceedings before the domestic courts (see paragraph 26 above).", "95. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part.", "96. In the present case, the Court notes that the applicants have set out their claims in an itemised and precise manner. Regard being had to the documents in its possession and the above criteria, which it deems to have been satisfied in the present case, the Court considers it reasonable to award EUR 4,700 for costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicants, to be paid to the applicants ’ representative.", "C. Default interest", "97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicants were born in 1980 and 1971 respectively and live in Attard. The applicants were initially represented by Dr H. Mula and later by Dr M. Paris, both lawyers practising in Pieta`.", "3. The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate.", "4. The facts of the case may be summarised as follows.", "THE CIRCUMSTANCES OF THE CASE", "Background to the case", "5. The applicants were married on 20 May 2012. After unsuccessful attempts at having children, they were given medical advice that the only remedy to have children was by means of assisted procreation in vitro fertilisation (“IVF”).", "6. On 27 September 2014 the second applicant, aged forty-two years, underwent Intracytoplasmic Sperm Injection (“ICSI”), using her own ova, at a private hospital, at the State’s expense. The treatment was provided by the Government of Malta free of charge to subjects satisfying the Maltese Embryo Protection Authority’s (hereinafter referred to as “the Authority”) protocol (hereinafter “the protocol”) established by Chapter 524 of the Laws of Malta, namely the Embryo Protection Act (see Relevant Legal Framework below).", "7. The treatment was not successful and consequently the applicants requested another cycle of treatment on 31 August 2015. After a thorough medical assessment of the potential mother, Dr J.M., on behalf of the applicants, requested the treatment to be carried out in November 2015 when the second applicant would have been forty-three years and eleven months old.", "8. On 14 September 2015 the Authority refused the request stating inter alia that:", "“With reference to the attached scan and the below communication, EPA [the Authority] discussed your case as presented. However, EPA is still bound by the present law as it is today, whilst [it] also cannot deviate further from the protocol terms as stated in Chapter 6 of the said protocol. In respect of this, EPA unanimously decided that the request cannot be approved.”", "9. At the time of the second applicant’s request for a second cycle, the age bracket endorsed by the Parliament of Malta on an annual basis was that between twenty-five and forty-two years, a requisite which in the applicants’ opinion was in breach of their right to family life and the right not to be discriminated against. They also considered that they had fulfilled the other two criteria required, namely, being married and that according to medical advice they had reasonable prospects of success.", "10. Following the refusal by the Authority, the applicants communicated on various occasions with the Authority in order to have an explanation which was never tendered.", "11. Consequently, on 4 April 2016 the applicants filed a judicial letter in the Civil Court (First Hall) in its constitutional competence addressed to the Authority pointing out the breach of the fundamental right to family life. The Authority replied that it was guided by the protocol as established by law and approved by medical experts in the field.", "Constitutional redress proceedingsFirst-instance", "First-instance", "First-instance", "12. On 9 March 2017 the applicants instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence (hereinafter “the court”). They considered, firstly, that the concession, granted by Section 6 of Chapter 524 of the Laws of Malta, to have a protocol outlining guidelines in the sector had to be in line with the law and fundamental human rights and that secondly, the failure to fulfil these standards meant that the Government had to intervene to rectify such a breach within the protocol. They noted that the Government had been informed every year about the applicable age bracket and that, this notwithstanding, the Government failed to stop what the applicants believed to be discriminatory treatment arising from the protocol adopted by the Authority. They thus considered that the refusal of the authorities in their case, and the fact that the protocol only allowed access to IVF procedures between the age of twenty-five and forty-two constituted a breach of their right to private and family life and their right not to be discriminated against, and asked the court to declare these breaches accordingly. They relied on Articles 8 and 14 of the Convention, and the Maltese Constitution. They further asked the court to declare the refusal decision null, to order the medical examination of the second applicant to assert whether there existed any supplementary risks, in the absence of which, that she be authorised to undergo treatment, and to liquidate damage.", "13. During these proceedings the following testimony was produced:", "The second applicant declared that the couple had tried to make the requested cycle in Spain, which would have been approved, but it was too expensive and they could not afford it. She insisted that if the couple were on a better financial footing they could have become parents, but as a result of their financial situation (which did not allow them to pursue treatment abroad) and the age-limit set in Malta she had been discriminated against.", "14. The first applicant confirmed the above, noting that in the first month they had already disbursed five thousand euro and could not afford it. He insisted that the medical assessment of his wife should have determined whether she was eligible or not, and not her age. He considered that they had been discriminated against because no other law set an age-limit for people to have children, and because they were not in a financial position to travel abroad to obtain treatment.", "15. Dr J.M. testified that, when examined, the second applicant was in good health conditions for a pregnancy, having a good quality reserve of ova, and that she was still able to bear children. He explained that although no specific reason for the refusal was given by the Authority, it was clear that the reason was because of her age since this was the only requisite which was not satisfied. He emphasized that the second applicant had been perfectly healthy for another cycle of IVF but was obstructed by what was spelled out in the protocol.", "16. S.A., in representation of the Authority, confirmed that: every application of persons over the age of forty-two (four applications in all) had always been refused; the first cycle was given to the applicant by way of priority since she was almost forty-three years of age; she was also allowed to fertilise three ova as opposed to two; the Authority adhered strictly to the protocol with regard to the age of the applicants; in this case the second cycle, which the applicants were going to pay for themselves, could not be acceded to, solely, because the second applicant was above the maximum age, this was irrespective of the fact that the protocol indicated the age bracket as being “desirable”. She further explained that the protocol was drafted after lengthy discussions with the association of paediatrics and the association of gynaecologists and obstetricians and other stake holders, including others who already operated IVF in the private sector, it had then been presented in Parliament in 2013. She also presented a list of criteria which had to be fulfilled for authorisation to be granted, which had been drawn up by Drs M.S. and M.F. in representation of the Malta College of Obstetricians and Gynaecologists and Drs P.S. and J.M. in representation of the Malta Paediatric Association, who had been consulted on the matter.", "17. Prof M.B. (the clinical director of the gynaecology and maternity department, who had been consulted on the drafting of the law) considered that the crux of the case was one of ageism. Although he had various issues with the law – in so far as it had not allowed sperm donation or surrogacy – he had not been very critical of the age-limit. He considered that not all persons of the same age were in the same situation and thus disagreed with a mandatory age-limit, noting that in fact the protocol referred to the word “desirable”. Thus, he could agree with the protocol which referred to the age bracket being desirable, in the context of the laws in force at the time. However, he conceded that the chances were that the ova gathered from a woman aged forty-three would be of a of lesser quality, resulting in a poor success rate (4-5%). Such harvesting could have allowed an element of exploitation which the law sought to avoid so to protect women from such exploitation and the negative psychological impact that came with it. He nevertheless was of the view that a woman of forty-three years of age, who had a good reserve of ova, should have a right to decide (following consultation with her doctor and subsequent informed consent regarding the prospects of success) on whether to proceed or not with the procedure – but only in the absence of exploitation. He further noted that procedures had been authorised and made available to women under twenty-five years of age when there were problems with the male partner’s sperm.", "18. Dr M.S. and Dr M.F., both medical consultants specialising in Obstetrics and Gynaecology, who had not been involved in drafting the protocol, stated that such treatment could have negative effects on a woman, such as hyper stimulation syndrome, which could cause various serious complications such as loss of blood from the ovarian puncture sites, damage to the bowel and infections; since the law did not provide for donor gametes, and thus only the woman’s ova could be used, an age-limit had to be set; the maximum age of forty-two years indicated in the protocol was dictated by the very low chance of success (less than 10%) when performed on women having that age using their own ova. Apart from that, there was a high risk of miscarriage – meaning that these women would need more cycles of stimulation with all the risks that they carry. There was also a high probability that they would require interventions such as dilation and curettage in the case of a miscarriage. They further explained that in certain countries the maximum age [for a woman to undergo treatment] could extend to fifty years or more because of the opportunity of donor gametes. They also mentioned a 73% chance of abnormal birth when a woman was older than forty and used her own ova.", "19. Dr P.S. specialised in paediatrics, who had also been consulted in the drafting of the protocol, averred that women in advanced age during pregnancy can suffer complications for them and the child. He referred to multiple pregnancies and hyper stimulation syndrome and the life-threatening consequences it could have (such as fluid in the lungs or kidney failure). He noted that the protocol had been drafted based on the English model and explained that the cut-off date of forty-two years was chosen since, after such age, the risks outweighed the benefits. He mentioned that at that age the risks for both the mother and the child existed both in assisted as well as natural procreation. As to the word “desirable” used in the protocol, he explained that it aspired to the optimum, but it did not mean that one could not go beyond. The protocol provided guidelines and was not to be interpreted restrictively. In his view, the ability of a women to undergo the procedure was to be established by a medical examination and relevant tests, which would provide a comprehensive and objective picture of any problems the couple may have, and not on the woman’s identity card details.", "20. By a judgment of 28 September 2018, the court rejected the defendants’ plea of non-exhaustion of ordinary remedies and on the merits found against the applicants.", "21. It considered that the crux of the issue was the interpretation of the protocol by the Authority exercising its powers under the Embryo Protection Act. It was clear, from the testimony brought forward, that despite the word “desirable” the Authority interpreted the age-limit as a mandatory condition. In the court’s view, the protocol had been adopted after serious consideration and discussion with relevant stakeholders, including four experts. The guidelines were set out so that IVF would be of least peril to the mother and the embryo, and so that it would be successful. The majority of the experts agreed about the problems involved in relation to women aged over forty ‑ two, both in respect to natural procreation and even more in respect of medically assisted procreation (where a woman was induced to produce more than one ovum in each cycle). The risks involved were not negligible. One could not ignore that the embryo’s health depended on that of the mother, and that an abnormal foetus could also be a result.", "22. The court agreed that the reason why an age-limit had to be fixed was that the law, at the time, had not allowed the use of donor gametes. This was no longer the case. However, the court considered that the State had the right to regulate the procedures which i) it was not obliged to provide and ii) it was providing free of charge. It was the State’s duty to protect state coffers and it was not in doubt that the expenses related to such treatments were high. Thus, bearing in mind the statistics and the fact that the State was offering such a service, as well as the risks involved after a certain age and the negative impact both on the success of the procedure and the embryo, later foetus or child, it considered that by means of the protocol, the State had provided a fair and proportionate balance between the applicants’ right to respect for private and family life and that of society in general, also considering that any future health problems of the mother and child would also be covered by state coffers. However, it sympathised with the applicants’ argument concerning the word “desirable” which could lead to a certain uncertainty and considered that any maximum age should be explicitly provided for, save determined exceptions (as provided, for example, in the amended law where donor gametes were now allowed and the age of collection of ova was limited to thirty-six, save listed exceptions).", "23. In addition, the court considered the applicants’ discrimination complaint being two-pronged, based on age and financial situation. It found that the protocol did not give rise to discriminatory treatment on the basis of age since all the persons of the same age had been treated the same, and people below the relevant age group had also been excluded from the procedure. Neither had there been any discriminatory treatment vis-à-vis other individuals of the same age who could have children without assistance (and thus were not in an analogous position to the applicants), nor wealthier individuals who could travel abroad to obtain such treatment (as anyone in the same financial bracket as the applicant faced the same impediment). Thus, neither the promulgation of the protocol nor its interpretation could give rise to discrimination.", "24. The applicants were ordered to pay court expenses amounting to 2,149 euros (EUR).", "Appeal", "25. The applicants appealed against the entirety of the judgment. They argued, in particular, i) that the first-instance court had made a wrong assessment of the facts in so far as it considered that the applicants were seeking the financial aid of the State which was not the case, ii) the authority had a discretion to decide whether to authorise the procedure as the term “desirable” in the protocol meant that the maximum age-limit had not been mandatory as applied by the Authority – thus their wrong interpretation had rendered the applicants’ hopes of having children nugatory and iii) it was untrue that the protocol had been put in place after proper consultation – M.F. and M.S. had not been involved in the drafting of the protocol, M.B. disapproved of the interpretation given by the Authority as to the age-limit being mandatory, and P.S. had only testified that the Government adopted the system in place in the United Kingdom.", "26. By a judgment of 27 September 2019 the Constitutional Court confirmed the first-instance judgment.", "27. The Constitutional Court considered that what was important in the case was not who had been consulted in the drafting of the protocol but whether in the medical sphere there was justification for imposing such time ‑ limits. It observed that, while it was true that the protocol did not make the age bracket mandatory, such limitation was nevertheless justified, and the Authority was entitled to apply such a limitation in all the cases before it. The State had a duty to protect public health and limit risks to individuals so that a balance could be reached between the interest of private citizens to procreate and the State’s duty to ensure a healthy society, as well as avoiding the exploitation of women. The State was so conscious of its duty to safeguard public health that health care was, for the most part, free of charge in Malta.", "28. The fact that the age-limit indicated was not mandatory did not mean that the Authority, using its discretion, and on the basis of medical findings, could not decide to apply that age-limit. While the Authority had the discretion to decide to go beyond the age bracket, it also had the discretion to apply it. Even the applicants’ doctor testified that the offspring had more chances of complications ( xi ħaġa ), but that it was then based on the woman’s decision once the situation would have been explained and her having given informed consent. However, according to the Constitutional Court, this could not be left solely to the discretion of the parents. The Authority’s decision and that of the first-instance court were supported by the experts who testified and thus the appeal could not be upheld, and it was unnecessary to examine the other grounds of appeal. Costs were to be borne by the applicants." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "29. IVF became available in Malta, in a restricted measure, as of 2012 by means of the Embryo Protection Act, Chapter 524 of the Laws of Malta (hereinafter ‘the Act’). At the time the law only allowed for homologous techniques (i.e. having recourse to the gametes of the couple) as opposed to heterologous techniques (i.e. having recourse to gametes external to the couple) which were not provided for.", "30. Section 2 of the Act, at the relevant time, provided a requisite that the candidate had to be a prospective parent. For the candidates to qualify as prospective parents they had to be either legally married or obtained the age of majority and having a stable relationship.", "31. Section 5 of the Act, in so far as relevant, read as follows:", "“Any prospective parent shall have access to medically assisted procreation procedures:", "Provided that these procedures may only be resorted to where there is a reasonable chance of success and the procedures do not entail any known undue risk to the health of the woman or child, beyond those already well known as inherently associated with the procedure itself.”", "32. Section 6 of the Act in so far as relevant, read as follows:", "“Whosoever –", "...", "(b) intentionally fertilizes more than two egg cells from one woman within one treatment cycle:", "Provided that in exceptional cases the medical practitioner in charge of the medically assisted procreation may decide to transfer up to a maximum of three fertilized egg cells from one woman within one treatment cycle provided that this is done in accordance with a protocol established in writing by the Authority after consulting the associations which, according to law, represent the medical practitioners who exercise their profession in the fields of obstetrics and paediatrics. Such a protocol shall include, without prejudice to other criteria, clear criteria regarding the age of the woman who will be participating in such a procedure and after how many cycles in accordance with paragraph (b) may the medical practitioner decide to fertilize up to a maximum of three egg cells:", "Provided further that the above-mentioned Protocol may be substituted by a Protocol agreed upon by the Authority and the associations which, according to law, represent the medical practitioners who exercise their profession in the fields of obstetrics and paediatrics which specifies in a detailed manner the best medical practice in the field of medically assisted procreation. If such an agreement on a Protocol between the Authority and the associations cannot be agreed upon, then the Protocol established in writing by the Authority under the first proviso shall apply:", "Provided further that authenticated copies shall be sent within two days to the Minister responsible for Health and the Speaker of the House of Representatives. The Speaker of the House of Representatives, or in his absence the Deputy Speaker, shall put the authorised copy of the document on the Table of the House on the next first Parliamentary sitting:", "Provided further that where the person is a medical practitioner, no criminal proceedings can be undertaken against that medical practitioner if the medical practitioner is strictly acting in good faith and according to the Protocol mentioned;", "...", "shall be guilty of an offence and, on conviction, shall be liable to the punishment of a fine ( multa ) of not less than five thousand euro (€5,000) and not exceeding fifteen thousand euro (€15,000) or to imprisonment not exceeding three years or to both such fine and imprisonment ...”", "33. The protocol at the relevant time provided:", "“ For the purpose of this Protocol, the EPA [Embryo Protection Authority] feels that it is desirable that the woman, who is entitled to treatment should be between the age of 25 and 42 years ...”", "34. Subsequently, in 2018, it was amended to reflect changes in the Act which came into force on 1 October 2018 and introduced heterologous techniques. The amended protocol included the following:", "“... 6.3 it further establishes that the woman whose own oocytes have been retrieved after the woman reached the age of 36 years will only be allowed to undergo treatment up to the maximum age of 42 years ...", "6.4 It further establishes that the woman referred in Guidance Note 6.3 above, if after undergoing treatment up to the maximum age of 42 years will still have cryopreserved embryos, then the maximum age of that woman will be extended to 48 years.", "6.5 It further establishes that the woman who is entitled to treatment should be between the age of 18 and 48 years if using donated oocytes.", "6.6 Prospective parent / parents referred in Guidance Notes 6.2 to 6.5 above are referred to treatment if they have one of the following:", "(a) identified causes of infertility amenable to treatment by IVF e.g. bilateral tubal occlusion, azoospermia, and", "(b) unexplained infertility for two years (this includes mild endometriosis or mild male factor infertility)", "6.7 The maximum permissible age of the prospective parent for implantation of embryos shall be 48 years in all cases ...”", "35. According to the witness testimony of the chief executive officer of the Authority, the procedure to apply for authorisation to pursue IVF was, at the relevant time, as follows. It was the consultant medical practitioner of the clinic where the procedure would take place, chosen by the couple, who would seek authorisation via an application with the Authority, not the couple themselves. The authority would receive a list of couples who were to pursue IVF; in the case of the second cycle, the Authority would also receive a separate list. The latter would include the names of the couples, who, in their consultant’s view should benefit from an authorisation to have three ova fertilised instead of two. Only the Authority could give such permission, as the law only provided for the fertilisation of two ova. Requests concerning specific cases would also reach the Authority, such as preservation of gametes due to oncology. Everything that was brought before the Authority, including situations falling squarely within the law and the protocol, would be discussed by the Authority, and the relevant clinic would then be informed of the reply. In the case of refusal, the couple would be informed.", "RELEVANT INTERNATIONAL MATERIAL", "36. According to the information compiled by Ordo Iuris, on the basis of information collected and published by the European Society of Human Reproduction and Embryology, and not challenged by the parties, the situation in the member States of the Council of Europe in relation to IVF accessibility and limitations is as follows [1] :", "Albania: The age-limit for women is 50 years. The egg donor’s age-limit is 35 years. The procedure is available to infertile heterosexual couples. Limitations concern both private and public funded treatment.", "Austria: The age-limit for women is their natural cycle. The egg/sperm donor’s age-limit is 35 years. This limitation applies both to private and the public-funded procedure. The public funded procedure is limited to four cycles.", "Belgium: The general age-limit for women is 45 years for oocyte retrieval, and 47 years-old for embryo transfer. Access to the public-funded procedure is limited to women under the age of 43.", "Bosnia and Herzegovina: No age-limit. The public-funded treatment is limited to two cycles.", "Bulgaria: The age-limit for women is 51 years. For the public-funded procedure, the age-limit for women is 43 years. The egg donor’s age-limit is 35 years for non-relatives and 37 years for relatives. The procedure is available to infertile heterosexual couples, lesbian couples, and single women.", "Croatia: The age-limit for women is 42 years. The public-funded procedure is limited to four cycles.", "Cyprus: The age-limit for women is 50 years, but the public-funded treatment is limited to women under the age of 45.", "Czech Republic: The age-limit for women is 49 years. The public-funded procedure is limited to four cycles.", "Denmark: The age-limit for women is 45 years. For the public-funded procedure the age-limit is 40 years.", "Estonia: The age-limit for women is 50 years. For the public-funded treatment the age-limit is 40 years.", "France: For the public-funded procedure the age-limit is 43 years, otherwise it is the normal reproductive age as assessed by specialists.", "Germany: Access to the public-funded procedure is limited to women between the age of 25 and 39. The public ‑ funded procedure is also limited to three cycles per woman.", "Greece: The age-limit for women is 50 years.", "Hungary: For the public-funded procedure, the age-limit for women is 45 years. The public-funded procedure is limited to five cycles and five additional ones, if a child was born within the first four cycles.", "Iceland: There is no age-limit. There can be a maximum of four public ‑ funded cycles performed.", "Ireland: No public-funded treatment centres or age-limit exist.", "Italy: The age-limit for women is 50 years, for the public-funded procedure the age-limit is 46 years. There can be a maximum of six public-funded cycles.", "Latvia: No age-limit. The public-funded procedure is limited to women between the age of 18 and 38. All clinics are completely private, but they may perform the procedure under public funds.", "Lithuania: There is no general age-limit, apart from the one for the public-funded procedure, which is 42 years. The public-funded procedures are limited to two cycles.", "Republic of Moldova: There is no general age-limit, but the public-funded procedure is limited to women under 40 years of age. The limit for the public ‑ funded procedure is one cycle.", "Montenegro: The age-limit for the public-funded procedure is 44 years. No age-limit otherwise. The public-funded procedure is limited to three cycles.", "Netherlands: The age-limit for women is 49 years, but for the public ‑ funded procedure the limit is 42 years.", "North Macedonia: No age-limit. The procedure is limited to three cycles for the first child, three cycles for the second child, and three cycles for the third child.", "Norway: No age-limit.", "Poland: No age-limit. However, the public-funded IVF at local level in several regions is available only for women of a certain age, usually no more than 40-43 years.", "Portugal: The age-limit for women is 50 years, but for the public-funded treatment the limit is 40 years of age.", "Romania: The general age-limit for women is 48 years, but for the public ‑ funded procedure the limit is 40 years of age.", "Russian Federation: No age-limit.", "Serbia: No general age-limit, but for the public-funded treatment the age-limit for women is 42 years.", "Slovak Republic: The general age-limit for women is 50 years.", "Slovenia: The general age-limit for women is her natural reproductive age, but for the public funded treatment, the limit is 42 years. The public-funded treatment is limited to six cycles for the first child and four cycles for the next one.", "Spain: The general age-limit for women is her natural reproductive age, but accessibility to public funding is limited to women under 40 years old. The public-funded treatment is limited to three cycles.", "Sweden: No limitation for private treatment, but the age-limit for public-funded treatment is 40 years.", "Switzerland: No age-limit.", "Turkey: No general age-limit, but for the public-funded treatment, the age-limit for women is 39 years old. The public-funded treatment is limited to three cycles.", "Ukraine: The age-limit for public-funded procedures is 39 years old, there is no general age-limit otherwise.", "United Kingdom: No general age-limit for women, but public-funded treatment is available to women up to the age of 42 years.", "37. According to the Council of Europe Principles set out in the report of the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI), 1989, techniques of human artificial procreation may be used only where there is a reasonable chance of success and there is no significant risk of adversely affecting the health of the mother or the child.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "38. The applicants complained that they had suffered a breach of Article 8 of the Convention as a result of the refusal of their request for the second IVF cycle.", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "39. The Court notes that it is not disputed between the parties that Article 8 is applicable. Indeed “private life”, is a broad term, encompassing, inter alia, elements such as the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ IV; A, B and C v. Ireland [GC], no. 25579/05, § 212, 16 December 2010; and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 163, 24 January 2017). The Court has also held that the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is protected by Article 8, as such a choice is an expression of private and family life (see S.H. and Others v. Austria [GC], no. 57813/00, § 82, ECHR 2011, and Knecht v. Romania, no. 10048/10, § 54, 2 October 2012).", "40. The Court further notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe submissions of the parties", "The submissions of the parties", "The submissions of the parties", "(a) The applicants", "41. The applicants complained under Article 8 of the Convention that by refusing their request for the second IVF cycle, the Authority did not provide a fair balance between the competing public and private interests. They noted that given the word “desirable” in the protocol in relation to the age bracket, the authorities should have assessed the second applicant on her situation and not in the abstract, solely on her age. The noted, in particular, that the term “desirable” was intended to provide a flexible discretion to the Authority which according to the same protocol should have provided a case-by-case assessment. Nevertheless, the authority had failed to act accordingly.", "42. The Authority’s refusal had not been in accordance with the law as it had not been in line with the definition of prospective parent as defined in Section 2 of Chapter 524 of the Laws of Malta, nor was it within the parameters of Section 6 of the protocol which did not forbid procedures for women under twenty-five or over forty-two years of age. The first-instance constitutional jurisdiction had itself noted that the word “desirable” created uncertainty (see paragraph 22 in fine above). Relying on the testimony of S.A. (see paragraph 16 above) the applicants noted that it had solely been the Authority’s wrong interpretation of the protocol which led to the impugned refusal.", "43. The applicants also questioned the Government’s reliance on the consultation process behind the making of the protocol and whether the Authority had really consulted with the associations which, according to law, represented the medical practitioners who exercised their profession in the fields of obstetrics and pediatrics, as it had been mandated to do by Section 6 of the Act. They noted that experts in obstetrics and pediatrics, namely, M.F. and M.S., who testified before the constitutional jurisdictions, had not been consulted in the drafting of the protocol and M.B. and P.S., who had been consulted, confirmed that the age-limit had not been mandatory.", "44. Relying on the maxim ubi lex voluit dixit, the applicants also noted that Sections 10-12 of the Act listed prohibitions related to medically assisted procreation and included prohibitions on: the selection of sex; cloning; unauthorised fertilisation, unauthorised embryo transfer; and unauthorised fertilisation after death; but the Act didn’t list any prohibition on age, other than in relation to the age of majority. Moreover, in line with Section 5 of the Act and the testimony of P.S. (see paragraph 19, in fine, above) only a medical examination could ascertain the second applicant’s eligibility. This had not been done, thus, the refusal could not be considered lawful.", "45. The applicants also considered that the age-limit being set by Government at forty-two was not a measure necessary in a democratic society, as it was not based on any risk but solely on success-rate statistics. They noted that the mere fact that Malta did not sign or ratify the Council of Europe Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS. No. 164) did not mean it could disregard human rights standards.", "46. In their case, in particular, the refusal had not been necessary, given that, as testified by the only practitioner who examined the second applicant, she had been totally able to bare children at the time (see paragraph 15 above). It was thus incomprehensible why a blanket refusal, as opposed to a medically determined decision, fulfilled any pressing social need. By adopting a general stance based on age and ignoring the experts’ considerations as well as medical advice concerning the applicant specifically, the Authority had unilaterally destroyed the applicants’ possibilities of becoming natural parents.", "(b) The Government", "47. The Government questioned whether the applicants were challenging the lawfulness of the measure - which they considered had not been done at the domestic level. In any event, in the Government’s view the refusal decision of the Authority had been in accordance with the law, namely the protocol, which established an age bracket of between twenty-five and forty ‑ two years of age. In other words, a woman would be allowed to undergo IVF procedures until the age of forty-three minus one day, thus making the law clear, foreseeable and accessible, as also shown by the constant strict adherence to the protocol in practice. The Government submitted that lawfulness did not require the law to provide absolute certainty, but rather foreseeability that was sufficient to allow a person to regulate their conduct.", "48. According to the Government, the protocol had been drawn up following consultation with members of the medical profession in the fields of obstetrics and paediatrics, as confirmed by the first ‑ instance constitutional jurisdiction, and the age-limit set had been based on purely medical reasons. The stipulated age-limit was set in order to protect the health of the nation and the rights and freedoms of others, and the Authority’s decision to reject the applicants’ request for authorisation for a second IVF cycle was in furtherance of the same legitimate aim. There were many risks associated with carrying out such a procedure, and the older the woman, the greater the risks not just for herself, but also for the foetus and the child that she would eventually give birth to. They referred to the expert testimony obtained during the domestic proceedings (see paragraphs 18 and 19 above).", "49. The Government emphasised that the State had a responsibility to ensure, in introducing such procedures and making them available to the public, that it maintained a balance and a sense of proportionality between the rights of the individual and the public interest. Bearing in mind the risk after forty-two years of age, the protocol had achieved this balance. While the applicant argued that the Authority should have subjected the second applicant to further medical tests, none of the experts who testified in the proceedings suggested that there was a level of physical fitness above the age of forty ‑ two that would bring the risk of ovarian hyper stimulation syndrome to an acceptably low level. None of them had suggested that the risk of excess fluid in the lungs, or kidney failure, or the risk of miscarriage once pregnant, depended on the physical fitness of the woman. Indeed, the health status of the woman undergoing IVF, particularly the process of ovarian stimulation and egg retrieval, did not lower to any considerably appreciable amount the life-threatening risks that came with it above a certain age. The State had to therefore impose a limit of forty ‑ two years of age to protect the health of the persons involved in this procedure. According to the Government, that age-limit also protected women from exploitation and all persons from having an undue and false hope that IVF could work and be effective at any age. The Government denied that the success rate was the sole reason for determining whether a person should be allowed to carry out an IVF procedure.", "50. In the light of the wide margin available to States to legislate in the field, the Maltese State had certainly reached the right balance in determining eligibility. Moreover, in relation to the present case, the Government noted that the State had done all that was in its power to do in order to assist the applicants. In fact, when the applicants requested authorisation from the Authority for the first cycle of IVF treatment, the Authority authorised the fertilisation of three eggs, as opposed to the two, in order to give the applicants a greater chance of success. They also placed the applicants at the top of the list of patients, giving them priority, in the next IVF cycle. Apart from that, given that the national hospital had not yet been licensed to carry out IVF procedures, the Authority allowed the applicants to carry out the procedure at a private hospital at the expense of the Government.", "51. Lastly, they noted that more recent amendments to the law referring to an age-limit of forty-eight years (which came to be once Malta opened up to gamete donation, see paragraph 34 above), had not changed the eligibility conditions of persons in her situation. Nor had they changed generally as regards persons who were over forty-three years of age, unless they either i) had cryopreserved eggs which would have been extracted before reaching the age of thirty-six, or ii) they used donated eggs (extracted from a women aged between eighteen and thirty-six). In both these situations the risks associated with ovarian stimulation and egg retrieval remained low.", "(c) The third-party intervener", "52. Ordo Iuris were under the impression that the present case dealt with prerequisites for the reimbursement of IVF expenses from public funds and considered that there was no right to free of charge IVF under the Convention. They noted that virtually everywhere limitations were imposed with regard to access to public-funded IVF. The age-limit for women seeking public funding varied between thirty ‑ eight years old in Latvia, to forty-six years old in Italy (see paragraph 36 above). These regulations were often connected with the assumption that the efficiency of the IVF depended on the age of the woman undergoing the treatment. Indeed, in light of the medical research, success rates in IVF procedure declined with women’s age, specifically after the mid-thirties. Part of this decline was due to a lower chance of getting pregnant from artificial insemination, and part was due to a higher risk of miscarriage with increasing age, especially over the age of forty.", "53. In their opinion, since the case touched on an area where there was no common ground between the member States, the State should have a wide margin of appreciation. One of the obvious procedural limitations to public ‑ funded IVF should be defining the health conditions that must be met by a woman who wants to access such procedures as acknowledged by Council of Europe soft-law standards (see paragraph 37 above). Relying on the Court’s case-law, they noted that it was not contrary to Article 8 for a State to adopt rules of an absolute nature which serve to promote legal certainty and, in their view, publicly funded IVF was one of the areas where this should be possible.", "The Court’s assessment", "(a) General principles", "54. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life, even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Evans, cited above, § 75, and S.H. and Others, cited above, § 87).", "55. An interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned (ibid. § 88).", "56. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned – who must moreover be able to foresee its consequences – and compatible with the rule of law. The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts), and Nedescu v. Romania, no. 70035/10, § 77, 16 January 2018). Moreover, domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see, for example, Radu v. the Republic of Moldova, no. 50073/07, § 28, 15 April 2014, and Unifaun Theatre Productions Limited and Others v. Malta, no. 37326/13, § 78, 15 May 2018).", "57. The Court also reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. However, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court’s case-law (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 81 and 82, ECHR 2006 ‑ V, and Benedik v. Slovenia, no. 62357/14, § 123, 24 April 2018).", "58. In order to determine whether an impugned measure was “necessary in a democratic society” the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of Article 8 § 2 (see Knecht, cited above, § 58, and Parrillo v. Italy [GC], no. 46470/11, § 168, ECHR 2015).", "59. A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans, cited above, § 77, and the cases cited therein). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Evans, cited above, § 77; Fretté v. France, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002 VI; and A, B and C v. Ireland, cited above, § 232).", "60. The Court has previously held that the use of IVF treatment gave rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments. It is why in such a context, in the absence of clear common ground among the member States, the Court has previously held that the margin of appreciation to be afforded to the respondent States is a wide one (see S.H. and Others, cited above, § 97, and Paradiso and Campanelli, cited above, § 194). The State’s margin in principle extends both to its decision to intervene in the area and, once it has intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests (ibid; Knecht, cited above, § 59, and Evans, cited above, § 82).", "61. However, this does not mean that the solutions reached by the legislature are beyond the scrutiny of the Court. It falls to the Court to examine carefully the arguments taken into consideration during the legislative process and leading to the choices that have been made by the legislature and to determine whether a fair balance has been struck between the competing interests of the State and those directly affected by those legislative choices (see S.H. and Others, cited above, § 97, and Parrillo, cited above, § 170).", "(b) Application of the general principles to the present case", "62. The Court will approach the case as one involving an interference (see S.H. and Others, cited above, § 88, and Knecht, cited above, § 58) as it concerns the State’s decision to deny the applicants’ access to IVF procedures which were available to the population and which they sought to pay for themselves.", "63. The Court reiterates that, first and foremost, for an interference to be justified under Article 8 § 2, it must be in accordance with the law (see paragraph 55 above).", "64. In so far as the Government argued that the lawfulness of the measure was not disputed before the domestic courts, the Court observes that both at first-instance and on appeal the applicants asserted that while the law referred to the word “desirable” the authority incorrectly applied the criterion as a mandatory one (see, for example, paragraph 25 above). Further, the first ‑ instance court considered that the crux of the case was precisely the interpretation given to the protocol and considered that the word “desirable” could lead to some uncertainty (see paragraphs 21 in primis and 22 in fine above), and the Constitutional Court agreed with the applicants’ argument that the age-limit was not mandatory noting, however, that the authority had the discretion as to whether to apply it or not (see paragraphs 27 and 28 above). It follows that the applicants’ arguments concerning the lawfulness of the measure were raised at the domestic level and dealt with by the domestic courts. There is therefore no reason for this Court not to delve into the matter.", "65. It is not disputed that the decision to reject the applicants’ application was based on the impugned provision of the protocol. The Court will firstly examine the quality of that law. The Court observes that there is no ad hoc enabling provision for the protocol in the principal Act. Rather, the enabling provision, allowing for the creation of the protocol, in the Embryo Protection Act (as stood in 2013) lies in its Section 6 which deals with unlawful procedures and creates criminal offences (see paragraph 32 above). However, in the absence of any arguments in this respect before the Court, it is not necessary to examine the matter or question the validity of the protocol on that basis. It also notes that the applicants have not claimed that the protocol had not been accessible.", "66. As to whether the law (the protocol) was foreseeable, the Court considers that as argued by the applicants, the age-limit was not mandatory as the protocol clearly stated that it was only “desirable” for the eligible candidate to be below forty-three years of age (see paragraph 33 above). Indeed, both constitutional jurisdictions agreed with this evident interpretation and considered that the age limitation was not mandatory, and the Constitutional Court precisely held that the Authority could, in their discretion and on the basis of medical findings, decide to apply it or not (see paragraphs 27 and 28 above). The latter interpretation was also supported by the two experts who testified in the proceedings and had been involved in the drafting of the protocol (see paragraph 17 and 19). The protocol therefore provided for a certain flexibility. Nevertheless, it is not disputed that the Authority interpreted the age-limit as being mandatory and applied it accordingly (see, for example, S.A.’s testimony and the findings of the constitutional jurisdictions to this effect), without any considerations related to the medical situation of the candidates, or reference to any other pertinent reasoning. As a result, the administrative and judicial authorities gave different interpretations of the same legal provision. Furthermore, the Court cannot but note that the interpretation applied to the applicants – which left no room for flexibility – was the less favourable one to them, and the one most at odds with the clear wording of the law, as supported by its drafters as well as the highest courts of the land.", "67. It follows that, at the relevant time, the way in which the judicial and administrative authorities involved interpreted and applied the impugned legal provision (which was not referred to in any other law) was incoherent and thus lacked the required foreseeability (see, mutatis mutandis, Nedescu, cited above, § 84). In this connection, the Court notes that the first-instance constitutional jurisdiction had explicitly sympathised with the applicants about the uncertainty caused by the word “desirable” (see paragraph 22 above) and the Court observes the new formulation following relevant amendments, whereby the protocol, now unequivocally reads “will only be allowed to undergo treatment up to the maximum age of 42 years” (see paragraph 34 above).", "68. In conclusion, the interference suffered by the applicants had not been in accordance with a law of sufficient quality. That being so, the Court is not required to examine further aspects of the lawfulness requirement, or to determine whether the interference pursued a legitimate aim and, if so, whether it was proportionate to the aim pursued.", "69. There has accordingly been a violation of Article 8 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION taken in conjunction with article 8", "70. The applicants complained that they suffered discrimination contrary to that provided in Article 14 of the Convention, which reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "71. Bearing in mind the conclusion at paragraph 69 above the Court does not consider it necessary to examine separately the admissibility and merits of this complaint.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "72. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "73. The applicants claimed 4,296.43 euros (EUR) in respect of pecuniary damage representing costs undertaken in medical tests and medicine in relation to the second attempted IVF procedure and EUR 60,000 in non ‑ pecuniary damage. The legal representative indicated the firm’s bank account to receive payment of all the sums awarded by the Court.", "74. The Government challenged the pecuniary claim as being unconnected to any violation, and the non-pecuniary claim as being excessive.", "75. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicants EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "76. As requested, the amount awarded is to be paid directly into the bank account designated by the applicants’ representative (see, for example, Denisov v. Ukraine [GC], no. 76639/11, § 148, 25 September 2018 and the Practice Direction to the Rules of Court concerning just satisfaction claims, under the heading payment information).", "Costs and expenses", "77. The applicants also claimed EUR 3,406.67 for the costs and expenses incurred before the domestic courts and EUR 2,000 for those incurred before the Court.", "78. The Government did not contest the domestic court costs but noted that the applicants had not substantiated their costs before this Court.", "79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants, jointly, the sum of EUR 2,500, plus any tax that may be chargeable to the applicants, for the proceedings before the domestic courts and to reject the claim for costs in relation to the proceedings before this Court. As requested, the amount awarded is to be paid directly into the bank account designated by the applicants’ representative.", "Default interest", "80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1977 and 2007 respectively and live in Svinaře.", "A. Circumstances surrounding the second applicant ’ s birth", "6. The first applicant is the mother of the second applicant. During her pregnancy she had regular check-ups with a doctor and attended ante-natal classes at Hořovice Hospital. Prior to giving birth she had expressed, among other things, her wish to leave the maternity ward as soon as possible provided that there were no complications.", "7. On 24 October 2007 the first applicant contacted a pediatrician, S., who agreed to take charge of her future child and to come and see them both at their home as soon as they were discharged from the maternity ward. She informed the first applicant that she would, however, be away the following weekend. The applicant then told her that she intended to leave the hospital “ earlier ”, without enlarging on that statement. S. subsequently stated that it had not been her understanding that the applicant wanted to leave the hospital a few hours after the birth.", "8. The second applicant was born on Friday 26 October 2007 at Hořovice Hospital. It was a natural and spontaneous delivery with no complications. The applicants were found to have no health problems, the Apgar score for newborns ( recording the pulse rate, respiration, complexion, muscular activity and reflex irritability ) was the highest possible, according to the medical team ’ s assessment. In these circumstances, the first applicant decided to leave the hospital the same day, which she did at about noon despite meeting opposition from the medical team.", "9. According to a statement issued by the hospital on 29 October 2007 following extensive media coverage of the case, the hospital staff had suggested that the applicants remain at the hospital for at least 48 hours and had warned the first applicant of the possible risks to the child ’ s health, but the first applicant had indicated that a pediatrician would be taking charge of the child. After the applicants had left, the hospital staff informed the police, which was standard practice in situations where a patient left hospital prematurely without the doctor ’ s consent and this could have repercussions on his or her health. The social welfare authority was not informed until after the pediatrician S. had contacted the hospital ( see below ). The hospital found it regrettable that the first applicant had not expressed her wish to leave the hospital only hours after the birth during the ante-natal classes. Had she done so, the staff would have recommended that she obtain a personal care plan for the newborn baby and secure written agreement from the pediatrician ( who would thus have had proper advance notice ), whereupon her decision would have been accepted. The first applicant had accepted, moreover, that the events in question might have arisen as a result of a misunderstanding regarding the care arrangements for her newborn baby.", "10. According to the explanations given by the pediatrician S., on 26 October 2007 at about 2 p.m. she had been informed by the nurse from her surgery, who had received a call from the first applicant, that the latter had given birth that very morning and returned home. As it was an unusual situation, the pediatrician, who had been preparing to leave for the weekend and could not visit the applicants until Monday afternoon, informed the staff at Hořovice Hospital accordingly. D., the hospital doctor, decided to contact the social welfare authority, namely, the Černošice municipal office. In the meantime S. had informed the first applicant by telephone that she would be able to see her and her child until Monday afternoon, which the applicant had accepted. Shortly afterwards the pediatrician was contacted by a social worker. She told her about the situation and gave her the first applicant ’ s telephone number.", "11. According to the note sent by the Černošice Municipal Office to the Beroun Municipal Office ( hereafter “ the social welfare authority ” ), on 26 October 2007 the first applicant had left the hospital at noon on that day without informing the doctors; she had not been living at the address she had given the hospital for three years and the village where she was staying and her telephone number had been provided by the pediatrician contacted by the Černošice authority. The social worker had succeeded in contacting the child ’ s father on that number. Although he had been informed that an interim measure under Article 76a of the Code of Civil Procedure might be applied, he had stated that the applicants would not return to the hospital and had refused to provide the family ’ s exact address.", "12. At the request of the social welfare authority, Dr D. drew up a note observing that “ given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care”.", "13. Also on 26 October 2007 the social welfare authority requested the Beroun District Court to apply an interim measure pursuant to Article 76a of the Code of Civil Procedure, with a view to entrusting the second applicant to the care of the gynaecology - obstetrics department of Hořovice Hospital. The above-mentioned notes drawn up by the Černošice Municipal Office and Dr D. were annexed to the request.", "14. On the same day the court granted the request, reiterating the terms of the note drawn up by Dr D. The decision stated that any interim measure was served on the parties at the time of execution, which had to be immediate.", "15. At 4.30 p.m. on 26 October 2007 a court bailiff and a social worker, accompanied by police officers, went to the applicants ’ house. Although they explained to the child ’ s father that the first applicant could go to the hospital with the second applicant, he refused to take them to there of his own free will. An emergency medical team was therefore summoned. After examining the newborn baby, the doctor present observed that he had no health problems but agreed with the others that for the purposes of implementing the interim measure the mother and child would be taken back to the hospital in the ambulance. The father, police officers, social worker and court bailiff followed the ambulance. Once at the hospital, the second applicant was examined again and found not to have any health problems.", "16. The applicants were made to remain at the hospital for two days and allege that no medical act was carried out during that time. According to the hospital report, the first applicant had refused neonatal screening and vaccination of the second applicant. At the express request of the first applicant, who accordingly signed the form refusing further medical treatment (negativní revers), the applicants were discharged from the hospital on 28 October 2007, approximately 50 hours after the birth.", "..." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "...", "E. Ministry of Health bulletins", "37. Bulletin no. 7/2005 published in July 2005 sets out guidelines issued by the Ministry to doctors with a view to minimising their doubts and harmonising their approach. According to the bulletin, newborn babies could usually leave hospital where, inter alia, more than 72 hours had elapsed since the delivery.", "...", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "42. The applicants complained of a violation of the right to respect for their private and family life guaranteed by Article 8 of the Convention, alleging that the measure ordering the second applicant ’ s return to hospital a few hours after his birth had been neither lawful nor necessary. They also complained that the interim measure, which had had the effect of a decision on the merits in the present case, had been applied in violation of the principles of fairness enshrined in Article 6 § 1 of the Convention. In particular, the court had not examined whether the statutory conditions for application of the measure in question had been satisfied and neither the first applicant nor her partner had in any way been included in the decision ‑ making process.", "43. The Court, as master of the characterisation to be given in law to the facts of the case, considers it appropriate to examine these complaints solely from the standpoint of Article 8, which requires that the decision-making process involved in measures of interference be fair and such as to afford due respect to the interests safeguarded by this provision ( see Wallová and Walla v. the Czech Republic, no. 23848/04, § 47, 26 October 2006 ). The relevant parts of Article 8 provide :", "“1. Everyone has the right to respect for his private and family life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "...", "B. Merits", "1. The parties ’ submissions", "a) The applicants", "56. According to the applicants, their case illustrated a general problem of obstetrical practice in the Czech Republic – which placed the emphasis on hospital care – and the prevalence of an authoritarian attitude on the part of doctors. They noted that whilst there was no statutory requirement that newborn babies or their parents remain in hospital for a certain period of time after the birth, the guideline issued by the Ministry of Health in 2005 – which the applicants deemed obsolete and ill-founded as it had not been shown that the risks run by newborn babies decreased when they were placed in hospital – had indicated at the time that newborn babies could usually leave the hospital 72 hours after the birth. In their view, the problem lay in the fact that, like Doctor D. in the present case, doctors regarded the fact of remaining in hospital for 72 hours after the birth as an obligation, and not a recommendation.", "57. The applicants stated that the main objective of the measure in question had been to impose the 72 -hour rule on them. The authorities had thus twisted the real purpose of Article 76a of the Code of Civil Procedure in order to settle a conflict of opinion between parents and doctors, which could not be deemed to be in conformity with the law. Accordingly, the second applicant ’ s return to the hospital had been ordered unnecessarily and without the conditions of Article 76a having been met since he had been in good health and in no danger. Doctor D. ’ s note appeared too vague in that respect and could not be regarded as prima facie credible. The applicants argued that had there been an imminent danger in the present case, the doctor could have acted without the court ’ s authorisation. As that had not been the case, the court should have taken a critical view of the doctor ’ s observation in order to prevent unjustified and unnecessary interference in their rights. In their submission, the measure of 26 October 2007 had been based on a general supposition and the court had not examined whether there was any actual risk to the life or health of the second applicant. Furthermore, neither the first applicant nor her partner had in any way been involved in the decision-making process.", "58. The applicants observed that at the relevant time the only situation in which doctors could act against the parents ’ wishes had been pursuant to section 23 ( 3 ) of Law no. 20/1966, in a situation where emergency examination or medical intervention were necessary to save the life or protect the health of the child. That had not been the case here since the second applicant had not had any health problem either at the time or subsequently. They also pointed out, referring to section 23 ( 2 ) of Law no. 20/1966, that where a person did not sign a form refusing treatment this did not mean that he or she could be compulsorily admitted to hospital. The first applicant had also submitted before the national courts that she had wanted to sign the form refusing treatment but the hospital had not wanted to get her to sign it on the day she gave birth. The hospital had, moreover, conceded in its statement that where a form refusing treatment was signed a few hours after the birth complications could arise because the mother ’ s faculties might be affected at that time.", "59. Referring to Glass v. the United Kingdom ( no. 61827/00, ECHR 2004 ‑ II ), the applicants also submitted that their situation unquestionably fell within Article 8, given that the second applicant had been admitted to hospital against the wishes of his legal representatives and that, accordingly, the first applicant had had to return to the hospital at a critical time in their lives. Although they had not therefore been physically separated, this had been because the first applicant had decided to follow the second applicant, and not because of any positive action on the part of the State. Furthermore, admission to hospital could in itself be regarded as medical intervention even though they had not undergone any medical act since they had nonetheless been subject to supervision by the medical staff. Moreover, the right to respect for private life included the right to respect for both the decisions to become and not to become a parent and the right concerning the decision to become a parent included the right of choosing the circumstances of becoming a parent ( Ternovszky v. Hungary, no. 67545/09, § 22, 14 December 2010 ), including the place of giving birth and the medical treatment administered to the newborn baby. Newborns were also entitled to benefit from the presence and care of their father and wider family.", "60. Lastly, the applicants disputed the proportionality of the measure and criticised the authorities for failing to envisage alternative, less intrusive, measures or to take into account treatment available outside hospital. They considered absurd the argument that they had been treated with respect and submitted that the interests of the second applicant had been sufficiently protected even if they had left hospital quickly. As the second applicant had not been found to have any health problem after the birth, he had not required medical treatment prior to the visit by the paediatrician S. on Monday 29 October 2007. Had there been an urgent problem an emergency doctor would have been on hand. Lastly, the first applicant had followed standard practice when she had given two addresses, one being her permanent residence and the other her current residence. In any event the court bailiff and the police had been able to find her.", "b) The Government", "61. The Government observed that the Czech legal system did not impose an obligation on mothers and their newborn babies to remain in hospital for 72 hours after the birth. That was merely a recommendation expressed, on the basis of expert opinion, in a guideline issued by the Ministry of Health for the protection of the health and lives of citizens. It followed that women who had given birth always had the possibility of signing a statement refusing treatment. Like many hospitals in the Czech Republic, Hořovice Hospital allowed women who had given birth to leave the hospital earlier if they wished, on condition that they had signed the form refusing treatment and had been informed of the attendant risks. It was customary for the medical staff to enquire as to arrangements for the child ’ s care after he or she left hospital. The Government observed in that regard, citing statistics, that the Czech Republic had a very low perinatal mortality rate.", "62. Examining the case from the standpoint of negative obligations, the Government submitted first of all that the situation complained of did not fall within Article 8 and was therefore incompatible ratione materiae with that provision. Indeed the applicants had never been physically separated, had been treated with respect, had not been subjected to any medical intervention after returning to the hospital, and nothing had prevented their relatives from visiting them.", "63. The Government submitted that Doctor D. ’ s note had clearly indicated that the child was at risk, that the circumstances appeared plausible and that the court had had no reason to doubt the matter. The social welfare authority had accordingly acted in conformity with section 16 of Law no. 359/1999 and all the conditions for application of the interim measure under Article 76a § 1 of the Code of Civil Procedure had been satisfied. Accordingly, the interference had pursued the legitimate aim of protecting the health and rights of the applicants. With regard to proportionality, the Government argued that regard had to be had to the fact that it had been an emergency measure in the present case ( K. and T. v. Finland [GC], no. 25702/94, § 165, ECHR 2001 ‑ VII ), which gave the State a wide margin of appreciation ( Haase v. Germany, no. 11057/02, § 90, ECHR 2004 ‑ III (extracts) ); that the second applicant had not been separated from the first applicant ( they cited, by converse implication, Kutzner v. Germany, no. 46544/99, ECHR 2002 ‑ I ) and that he had not even been in a position to know whether he was at his parents ’ house or at hospital; and that the general interest called for particular protection of the health of children, who had only limited means of protecting their rights ( no. 22398/93, dec. 5.4.95, DR 81, p. 61). Furthermore, while there had been possible alternatives in the present case, such as signing a statement refusing treatment, the possibility of finding a paediatrician outside the hospital able to take immediate charge of the child or prior consultation at the hospital, the first applicant had deprived herself of those possibilities by her failure to act. Lastly, the measure in question had been a temporary one in that the applicants had left the hospital two days after it had been applied and it had been lifted the day after they had left the hospital.", "64. With regard to the fairness of the decision-making process leading to the measure in question, the Government pointed out that questions of emergency care were, by their nature, decided on a highly provisional basis and on an assessment of risk to the child reached on the basis of inevitably incomplete information ( they referred to the case of P., C. and S. v. the United Kingdom, no. 56547/00, § 128, ECHR 2002 ‑ VI ). Furthermore, regard should be had to the problems facing the national authorities in such situations ( Haase, cited above, § 101); moreover, their decisions could only be examined in the light of the situation such as it presented itself to the domestic authorities at the time those decisions were taken ( B.B. and F.B. v. Germany, nos. 18734/09 and 9424/11, § 48, 14 March 2013). The Court had also accepted that, when an emergency care order had to be made, it might not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. It had to be satisfied, however, that the national authorities were entitled to consider that there existed circumstances justifying the removal of the children from the care of the parents without any prior contact or consultation ( K. and T., cited above, § 166).", "65. In the present case Dr D. ’ s note had clearly indicated the existence of an imminent risk to the life and health of the second applicant, which was why the District Court had deemed it necessary and justified to apply the requested measure urgently. In the Government ’ s submission, the court could not be criticised for basing its decision on the prima facie credible statement of the doctor, whose expertise was not in doubt, and not taking further evidence. Even if the doctor ’ s opinion had turned out to be mistaken, that would not per se have rendered the court ’ s decision incompatible with Article 8 ( R.K. and A.K. v. the United Kingdom, no. 38000/05, § 36, 30 September 2008 ). Furthermore, the social welfare authority had endeavoured to contact the first applicant but had only been able to reach her partner, who had refused to disclose the family ’ s address. Given the urgent nature of the situation, it had been impossible to involve the parents further. Moreover, they could have put forward their arguments by bringing proceedings for the protection of their personality rights.", "2. The Court ’ s assessment", "a) Whether there was an interference", "66. The Court observes that, in the Government ’ s submission, the applicants had not suffered any interference with their rights guaranteed under Article 8 particularly as they had never been physically separated and had not been subjected to any medical intervention. The applicants disputed this, alleging that they had been admitted to hospital against their will at a critical time in their lives and that the first applicant had thus been prevented from choosing her post-natal conditions and treatment. Furthermore, the fact that they had not been separated had not been the result of positive action by the State.", "67. The Court is of the view that the facts of which the applicants complain fall within Article 8 in that the decision to admit the second applicant to hospital against the express will of his parents, resulting in the admission to hospital of the first applicant, who did not want to leave her baby alone, concerns their private and family life. These concepts also include a mother ’ s right to decide which medical treatment her child should receive and, accordingly, whether the child should be admitted to hospital ( see Glass v. the United Kingdom, no. 61827/00, § 70, ECHR 2004 ‑ II ). The Court considers that neither the brief length of the stay in hospital nor the fact that the applicants were not subjected to any medical intervention there should affect its finding that the situation of which they complain amounted to an interference with their right to respect for their private and family life.", "68. Such interference will infringe Article 8 unless it is “in accordance with the law ”, pursues one or more legitimate aims under the second paragraph of that provision and is “ necessary in a democratic society ”, to achieve those aims. The notion of “ necessity ” implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued ( see, for example, Couillard Maugery v. France, no. 64796/01, § 237, 1 July 2004 ).", "b) Justification for the interference", "i. In accordance with the law", "69. The Court observes that the applicants were brought back to the hospital in implementation of an interim measure applied by the Beroun District Court under Article 76a of the Code of Civil Procedure. According to the applicants, that provision had been wrongfully applied in the present case and its purpose twisted because the second applicant had not been suffering from a health problem and had been in the safe hands of his parents. The Government submitted that the court had not had any reason to consider that the conditions of Article 76a § 1 were not met because the note signed by Dr D. clearly indicated that the child was at risk.", "70. The Court observes that Article 76a of the Czech Code of Civil Procedure refers to emergency situations in which a child is deprived of care or where its life or healthy development is at risk. Since it is not for the Court to substitute its own opinion for that of the domestic authorities in assessing the risk incurred by the second applicant in the present case and accordingly to decider whether the situation in question fell within the above-mentioned provision, the Court considers that the condition of a legal basis can be regarded as having been met in the present case.", "ii. Legitimate aim", "71. In the Court ’ s opinion, the interference in question can in principle be deemed to have been guided by a legitimate aim within the meaning of Article 8 § 2 of the Convention, namely, the protection of the health and rights of others, in the instant case the second applicant as a newborn baby.", "iii. Necessary in a democratic society", "72. The Court reiterates that, in order to be justified, any interference must be based on relevant and sufficient reasons. According to the case-law, while the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, the Court must still be satisfied in the particular case that there existed circumstances justifying the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking the child into care, was carried out prior to implementation of such a measure ( see Kutzner, cited above, § 67; P., C. and S., cited above, § 116; and Covezzi and Morselli v. Italy, no. 52763/99, § 108, 9 May 200 3 ). Furthermore, the taking of a newborn baby into care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved ( see K. and T., cited above, § 168, and Haase, cited above, § 91).", "73. The Court has accepted that questions of emergency care are, by their nature, decided on a highly provisional basis and on an assessment of risk to the child reached on the basis of the information, inevitably incomplete, available to the authorities at the time ( see P., C. and S., cited above, § 128). Nevertheless, before public authorities have recourse to emergency measures in connection with such delicate matters, the imminent danger should be actually established. In obvious cases of danger no involvement in the decision-making process of those having custody of the child is called for. However, if it is still possible to hear the parents of the children and to discuss with them the necessity of the measure, there should be no room for an emergency action ( see Haase, cited above, § 99).", "74. It should be noted that this is not a classic case of taking a child into care in so far as the measure complained of lasted only three days and the applicants were not separated because the first applicant was able to accompany her son, who was the only one concerned by the measure, to the hospital. In the Court ’ s view, that did not however relieve the authorities, and in particular the court, of their obligation to seek to establish the risks actually incurred by the child and determine whether his health could be protected by less intrusive measures.", "75. The Court acknowledges that in the present case the conduct of the first applicant – who does not appear to have clearly indicated her desire to leave the hospital very quickly or to have attempted to follow the recommended procedure by signing a statement refusing treatment or providing a paediatrician ’ s written agreement to take charge of her child, and who did not clearly indicate her address to the hospital – could have aroused concern among the hospital staff responsible. Accordingly, Doctor D., who had been informed by the paediatrician S. that she was away for the weekend, cannot be criticised for having alerted the social welfare authority, which in turn brought the matter before the court. The Court must, however, be satisfied that in the present case the court was entitled to consider that there were circumstances justifying an order for the second applicant ’ s immediate return to the hospital without a real and concrete risk to the child ’ s health being established by a health professional. In particular, it is incumbent on the respondent State to establish that the court carefully assessed the effect of the planned measure on the applicants, and considered alternative possibilities to taking the second applicant into care, before implementing it.", "76. The Court observes in that connection that the reasoning set out in the interim measure of 26 October 2007 is very brief and merely refers to the short note drafted by Doctor D. , which simply stated, without any further details, that “ given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care ” (see paragraph 12 above ). In the light of that finding, the Court cannot but observe that the recommendation made by the Ministry of Health in July 2005 ( see paragraph 37 above ) was interpreted as a binding rule by the doctor concerned. The doctor thus alluded to a general risk, without referring to concrete factors specific to the applicants ’ situation. However, it does not appear from the interim measure that the court sought to ascertain further details about the case in question by, for example, ordering that the child be examined by an expert or carefully assessing all the relevant circumstances, or that he considered the possibility of less intrusive interference in the applicants ’ family life.", "77. It also transpires from the notes on which the court based its decision ( see paragraphs 11 - 13 above ) that it was not informed of the fact that the first applicant had contacted a paediatrician before giving birth and that at the time of its decision an appointment had already been made with that paediatrician. The Court considers that it has not been established in the present case that the parents could not have been consulted beforehand, if only of the possible risks or to obtain a signed statement from the first applicant refusing treatment. Furthermore, it would appear that when the court bailiff and the social worker went to the applicants ’ home accompanied by police officers and an emergency doctor and the latter was able to establish that the child had no health problems, it was then no longer possible to reassess the situation.", "78. In the present case the Court is not satisfied that there were extraordinarily compelling reasons justifying the physical removal of the baby from his mother ’ s care, against her will ( see paragraph 72 above ). Admittedly, it is not the Court ’ s task to take the place of the national authorities and speculate as to the most appropriate child - care measures in the particular case. However, it is satisfied that where such a drastic measure as to admit the second applicant to hospital with the assistance of the police and a court bailiff – which was of automatic application – was contemplated, the court should have examined whether some less intrusive interference in the applicants ’ family life, at such a critical point in their lives, was not possible.", "79. Accordingly, the Court considers that this serious intervention in the family life of the applicants and the methods used in implementing it exceeded the national margin of appreciation afforded to the respondent State and were disproportionate in their effects on the applicants ’ potential for enjoying a family life as from the birth of the second applicant. Whilst there may have been a “necessity” to take some precautionary measures to protect the newborn child ’ s health, the interference in the applicants ’ family life entailed by the interim measure ordering the second applicant ’ s return to hospital cannot be regarded as having been “necessary” in a democratic society.", "80. Accordingly, there has been a violation of Article 8 of the Convention in the present case.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "12. The applicants were born in 1961 and 1962 respectively and live in Rosny-sous-Bois.", "13. In the spring of 1996 Mrs Draon began her first pregnancy. The second ultrasound scan, carried out in the fifth month of pregnancy, revealed an anomaly in the development of the foetus.", "14. On 20 August 1996 an amniocentesis was carried out at Saint ‑ Antoine hospital, run by Assistance Publique - Hôpitaux de Paris (AP ‑ HP). The amniotic fluid sample was sent for analysis to the establishment ’ s cytogenetics laboratory (headed by Professor T.) with a request for karyotype and digestive enzyme analysis. In September 1996 T. informed the applicants that the amniocentesis showed the foetus had “a male chromosomal pattern with no anomaly detected”.", "15. R. was born on 10 December 1996. Very soon, multiple anomalies were observed, particularly defective psychomotor development. The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a “chromosomal anomaly”.", "16. When informed of this T. admitted that his service had made the wrong diagnosis, the anomaly having already been entirely detectable at the time of the amniocentesis. He stated: “Concerning the child Draon R., ... we regret to have to say that there was indeed an asymmetry between the foetus ’ s two copies of chromosome 11; that anomaly or peculiarity escaped our attention”.", "17. According to the medical reports, R. presents cerebral malformations causing grave disorders, severe impairment and permanent total invalidity, together with arrested weight gain. This means that it is necessary to make material arrangements for his everyday care, supervision and education, including ongoing specialist and non-specialist treatment.", "18. On 10 December 1998 the applicants sent a claim to AP-HP seeking compensation for the damage suffered as a result of R. ’ s disability.", "19. In a letter dated 8 February 1999 AP-HP replied that it “[did] not intend to deny liability in this case” but invited the applicants to “submit an application to the Paris Administrative Court which, in its wisdom, will assess the damage for which compensation should be paid”.", "20. On 29 March 1999 the applicants submitted to the Paris Administrative Court a statement of their claim against AP-HP, requesting an assessment of the damage suffered.", "21. At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award.", "22. In a decision of 10 May 1999 the urgent applications judge of the Paris Administrative Court made a first interim award of FRF 250,000 (EUR 38,112.25) and appointed an expert. He made the following points, among other observations:", "“ [ AP-HP ] does not deny liability for the failure to diagnose the chromosomal anomaly which the boy R. is suffering from; ... having regard to the non-pecuniary damage, the disruption in the conditions of their lives and the special burdens arising for Mr and Mrs Draon from their child ’ s infirmity, AP-HP ’ s liability towards them in the sum of 250,000 francs may be considered, at the current stage of the investigation, not seriously open to challenge”.", "23. The expert filed his report on 16 July 1999 and confirmed the seriousness of R. ’ s state of health.", "24. On 14 December 1999, in a supplementary memorial on the merits, the applicants requested the Administrative Court to assess the amount of the compensation which AP-HP should be required to pay.", "25. AP - HP ’ s memorial in reply was registered on 19 July 2000. The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by R. ’ s state of health.", "26. In addition, the applicants again asked the urgent applications judge to make an interim award. In a decision of 11 August 2001 the urgent applications judge of the Paris Administrative Court made an additional interim award of FRF 750,000 (EUR 114,336.76) to the applicants “in view of the severity of the disorders from which the boy R. continues to suffer and the high costs of bringing him up and caring for him since 1996”.", "27. After being prompted several times, verbally and in writing, by the applicants, the Paris Administrative Court informed them that the case had been set down for hearing on 19 March 2002.", "28. On 5 March 2002 Law no. 2002-303 of 4 March 2002 was published in the Official Gazette of the French Republic. Section 1 of that Law, being applicable to pending proceedings, affected those brought by the applicants.", "29. In a letter of 15 March 2002 the Paris Administrative Court informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion, since it applied to their claim by virtue of section 1 of the Law of 4 March 2002.", "30. In a judgment of 3 September 2002 the Paris Administrative Court, acting on a proposal made by the Government Commissioner, deferred its decision and submitted to the Conseil d ’ Etat a request for an opinion on interpretation of the provisions of the Law of 4 March 2002 and their compatibility with international conventions.", "31. On 6 December 2002 the Conseil d ’ Etat gave an opinion in the context of the litigation in progress ( avis contentieux ) which is reproduced below (see paragraph 51).", "32. On the basis of that opinion, the Paris Administrative Court ruled on the merits of the case on 2 September 2003. It began with the following observations:", "“Liability", "The provisions of section 1 of the Law of 4 March 2002, in the absence of provisions therein deferring their entry into force, are applicable under the conditions of ordinary law following publication of that Law in the Official Gazette of the French Republic. Since the rules the Law lays down were framed by Parliament on general - interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, they are not incompatible with the requirements of Article 6 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention] or with those of Article 1 of Protocol No. 1 [to the Convention]. The general - interest grounds which Parliament took into consideration when framing the rules set out in the first three paragraphs of section 1 justify their application to situations which arose prior to the commencement of pending proceedings. It follows that those provisions are applicable to the present action, brought on 29 March 1999;", "The administrative courts do not have jurisdiction to rule on the constitutionality of legislation; [the applicants ’ ] request that this court review the constitutionality of the Law of 4 March 2002 must therefore be refused;", "It appears from the investigation that in the fifth month of Mrs Draon ’ s pregnancy, after an ultrasound scan had shown a manifest problem affecting the growth of the foetus, she and Mr Draon were advised to consider the option of an abortion if karyotype analysis after an amniocentesis revealed a chromosomal abnormality. Mr and Mrs Draon then decided to have that test performed at Saint-Antoine Hospital. They were informed by the hospital on 13 September 1996 that no anomaly of the foetus ’ s male chromosomal pattern had been detected. However, very soon after the baby ’ s birth on 10 December 1996 magnetic resonance imaging revealed a serious malformation of the brain due to a karyotypic anomaly;", "The report of the expert appointed by the court states that this anomaly was entirely detectable; failure to detect it therefore constituted gross negligence on AP-HP ’ s part which deprived Mr and Mrs Draon of the possibility of seeking an abortion on therapeutic grounds and entitles them to compensation under section 1 of the Law of 4 March 2002 ”.", "33. The court then assessed the damage sustained by the applicants as follows:", "“ ... firstly, ... the amounts requested in respect of non-specialist care, the specific costs not borne by social security, the costs of building a house suited to the child ’ s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and cannot therefore be sums for which [AP-HP] is liable;", "... secondly, ... Mr and Mrs Draon are suffering non-pecuniary damage and major disruption in their lives, particularly their work, regard being had to the profound and lasting change to their lives brought about by the birth of a seriously disabled child; ... these two heads of damage must be assessed, in the circumstances of the case, at 180,000 euros;", "... lastly ..., although Mr and Mrs Draon submitted that they could no longer holiday in a property they had purchased in Spain, they are not deprived of the right to use that property; consequently their claim for compensation for loss of enjoyment of real property must be rejected; ... ”", "34. The court concluded by ordering AP-HP to pay the applicants the sum of EUR 180,000, less the amount of the interim awards, interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on 14 December 1998, the interest due being capitalised on 14 December 1999 and subsequently on each anniversary from that date onwards. AP-HP was also ordered to pay the applicants the sum of EUR 3,000 in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court.", "35. On 3 September 2003 the applicants appealed against the judgment. Their appeal is currently pending before the Paris Administrative Court of Appeal.", "II. Every disabled person shall be entitled, whatever the cause of his or her disability, to the solidarity of the national community as a whole.", "III. The National Advisory Council for Disabled Persons shall be charged, in a manner laid down by decree, with assessing the material, financial and non-material situation of disabled persons in France, and of disabled persons of French nationality living outside France and receiving assistance by virtue of national solidarity, and with presenting all proposals deemed necessary to Parliament, with the aim of ensuring, through an ongoing pluri-annual programme, that assistance is provided to such persons ... ”", "50. These provisions entered into force “under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic ” (see paragraph 51 below) [1]. Law no. 2002-303 was published in the Official Gazette on 5 March 2002 and it therefore came into force on 7 March 2002.", "C. The opinion given by the Judicial Assembly of the Conseil d ’ Etat on 6 December 2002 under the Administrative Disputes (Reform) Act (the Law of 31 December 1987 ) (extracts)", "51. The Conseil d ’ Etat observed in particular:", "“ ... II. The date of the Law ’ s entry into force:", "The liability criteria set out in the second sub-paragraph of paragraph I of section 1 were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability, aggravated it or made it impossible to take steps to attenuate it. They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope.", "The different liability criteria defined in the third sub-paragraph of paragraph I of section 1 were enacted in favour of the parents of children born with a disability which, on account of gross negligence on the part of a medical practitioner or health ‑ care establishment, was not detected during pregnancy. They are sufficiently precise to be applied without the need for further legislative provisions or regulations. Admittedly, they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child ’ s life in the damage for which the parents can obtain compensation, and provide that such damage is to be made good through reliance on national solidarity. But the very terms of the Law, interpreted with the aid of its drafting history, show that Parliament intended to exclude compensation for that head of damage on the ground that, although there was a causal link between negligence and damage, that link was not such as to justify making the person who committed the negligent act liable for the resulting damage. In providing that this type of damage should be made good by reliance on national solidarity, Parliament did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons.", "It follows that, since the Law does not contain provisions for the deferred entry into force of section 1, and since in addition Parliament ’ s intention, as revealed by the Law ’ s drafting history, was to make it applicable immediately, the provisions of section 1 came into force under the conditions of ordinary law following the Law ’ s publication in the Official Gazette of the French Republic.", "III. – The element of the benefit mentioned in point 3 of Article L. 245-3 [of the Social Action and Family Code] may also be claimed, under conditions to be laid down by decree, by beneficiaries of the [disabled child ’ s education] allowance [formerly the AES], where on account of their child ’ s disability they are likely to bear burdens of the type covered by that paragraph. ...", "Article L. 245-3 [of the Social Action and Family Code] – Compensatory benefit may be used, under conditions to be laid down by decree, for", "1. burdens arising from the need for human assistance, including, where necessary, the assistance provided by family helpers;", "2. burdens arising from the need for technical assistance, particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point 1 of Article 321-1 of the Social Security Code;", "3. burdens arising from adaptation of the home or vehicle of the disabled person, and any extra expenditure needed for his or her transport;", "4. specific or exceptional burdens, such as those arising from the purchase or maintenance of products needed on account of the disability; ...", "... – The element of the benefit mentioned in point 1 of Article L. 245-3 shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence, or requires regular supervision, or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office.”", "56. The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the AES (renamed “ disabled child ’ s allowance ” by the new legislation – see section 12 above) begins. With regard to children, section 13 of the Law of 11 February 2005 provides:", "“Within three years from the entry into force of the present Law compensatory benefit shall be extended to disabled children. Within a maximum of five years those provisions of the present Law which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico -social establishments shall be repealed.”", "57. The entry into force of the Law of 11 February 2005 is subject to publication of the implementing decrees. Section 101 provides:", "“The regulations implementing the present Law shall be published within six months of its publication, after being referred for opinion to the National Advisory Council for Disabled Persons. ... ”", "58. According to the information supplied by the Government, the new compensatory benefit should come into force on 1 January 2006. It is expected that it will be payable in full to disabled children by 12 February 2008. In the meantime, children will apparently receive only part of the benefit: only the costs of adapting a disabled child ’ s home or vehicle, or his or her additional transport costs, can already be financed by the new system." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "36. Before enactment of the Law of 4 March 2002 the legal position was established by the relevant case-law.", "A. Relevant case-law before the Law of 4 March 2002", "37. An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts, depending on the identity of the defendant. If the defendant is a private doctor or a private medical laboratory, the dispute is referred to the ordinary courts. Where, on the other hand, as in the instant case, a public hospital service is involved, the dispute falls within the jurisdiction of the administrative courts.", "1. The Conseil d ’ Etat", "38. The Conseil d ’ Etat gave judgment on 14 February 1997 (C.E., Sect., 14 February 1997, Centre hospitalier de Nice v. Quarez, Rec. p.44). Mrs Quarez, then aged 42 years, had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying. Although the result of that examination revealed no anomaly, she gave birth to a child suffering from trisomy 21, a condition detectable through the chromosome test carried out. The Conseil d ’ Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence, since Mrs Quarez had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place.", "39. Secondly, a distinction was drawn between the disabled child ’ s entitlement to compensation and that of its parents.", "With regard to the disabled child ’ s right to compensation, the Conseil d ’ Etat ruled: “In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child M. from the trisomy from which he suffers, when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make-up was the consequence of an amniocentesis, the Lyon Administrative Court of Appeal made an error of law”.", "On the other hand, with regard to the parents ’ right to compensation, the Conseil d ’ Etat noted: “By asking for an amniocentesis, Mrs Quarez had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived, whose probability, given her age at the time, was relatively high.” It went on to say that in those conditions the hospital ’ s negligence had “wrongly led Mr and Mrs Quarez to the certainty that the child conceived was not trisomic and that Mrs Quarez ’ s pregnancy could be taken normally to term” and that “this negligence, as a result of which Mrs Quarez had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under Article L.162-12 of the Public Health Code, [should] be regarded as the direct cause of the prejudice caused to Mr and Mrs Quarez by their child ’ s infirmity”.", "40. With regard to compensation, the Conseil d ’ Etat took into account, under the head of pecuniary damage, the “special burdens, particularly in terms of specialist treatment and education” made necessary by the child ’ s infirmity, and awarded the parents an annuity to be paid throughout the child ’ s life. It also ordered the hospital to pay compensation for their non ‑ pecuniary damage and the disruption to their lives.", "41. Thus the Conseil d ’ Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother ’ s pregnancy. It did accept on the other hand that the parents of the child born with a disability were entitled to compensation and made an award not only in respect of their non-pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage, specifying that the latter included the special burdens which would arise for the parents from their child ’ s infirmity (expenditure linked to specialist treatment and education, assistance from a helper, removal to a suitable home or conversion of their present home, etc. ).", "42. The judgment did not attract particular comment and led to a line of case-law followed thereafter by the administrative courts.", "2. The Court of Cassation", "43. The case-law of the ordinary courts was laid down by the Court of Cassation on 17 November 2000 (Cass, Ass. Plén., 17 November 2000, Bull. Ass. Plén ., no. 9) in a judgment which was widely commented on (the Perruche judgment). In the Perruche case a woman had been taken ill with rubella at the start of her pregnancy. Having decided to terminate the pregnancy if the foetus was affected, she took tests to establish whether she was immunised against the disease. Because of negligence on the part of both her doctor and the laboratory, she was wrongly informed that she was immunised. She therefore decided not to terminate the pregnancy and gave birth to a child which suffered from grave disabilities resulting from infection with rubella in the womb. The Court of Cassation held: “Since the negligence on the part of the doctor and the laboratory in performing the services for which they had contracted with Mrs X. prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child, the child may claim compensation for the damage resulting from that disability and caused by the negligence found.”", "Thus, contrary to the Conseil d ’ Etat, the Court of Cassation accepted that a child born disabled could himself claim compensation for the prejudice resulting from his disability.", "In this case therefore account was taken of the pecuniary and non-pecuniary damage suffered by both the child and the parents, including the special burdens arising from the disability throughout the child ’ s life.", "44. It thus appears that in the same circumstances both the Court of Cassation and the Conseil d ’ Etat base their approach on a system of liability for negligence. However, the Court of Cassation recognises a direct causal link between the medical negligence and the child ’ s disability, and the prejudice resulting from that disability for the child itself. The Conseil d ’ Etat does not recognise that link but considers that the negligence makes the hospital liable vis-à-vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained.", "Both lines of case-law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child ’ s life. However, since the Conseil d ’ Etat considers that damage to have been sustained by the parents, whereas the Court of Cassation considers that it is sustained by the child, there may be significant differences in the nature and amount of such compensation, depending on whether the case-law of the former or the latter court is being followed.", "45. The judgment of 17 November 2000 was upheld several times by the Court of Cassation, which reaffirmed the principle of compensation for the child born disabled, subject to proof, where appropriate, that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied (Cass., Ass. plén., three judgments of 13 July 2001, BICC, no. 542, 1 October 2001; see also Cass., Ass. plén., two judgments of 28 November 2001, BICC, 1 February 2002).", "46. The Perruche judgment drew numerous reactions from legal theorists, but also from politicians and from associations of disabled persons and practitioners (doctors, obstetrical gynaecologists and echographers). The last-mentioned group interpreted the judgment as obliging them to provide a guarantee, and the insurance companies raised medical insurance premiums.", "3. Liability for negligence", "47. Both the Conseil d ’ Etat and the Court of Cassation took as their starting point a system of liability for negligence. In French law, under the general rules on the question, the right to compensation for damage can be upheld only if the conditions for liability are first satisfied. That means that there must be prejudice (or damage), negligence and a causal link between the damage and the negligence.", "More particularly, with regard to the liability of a public authority, for compensation to be payable the prejudice, which it is for the victim to prove, must be certain. Loss of opportunity constitutes certain prejudice, provided that the opportunity was a serious one.", "In the present case the prejudice resulted from a lack of information, or inadequate or incorrect information, about the results of an examination or analysis. In such a case, before the Law of 4 March 2002 was enacted, negligence falling short of gross negligence was sufficient. As to the relation between cause and effect, a direct causal link was established between the hospital ’ s negligence and the parents ’ prejudice (see the above ‑ mentioned Quarez judgment).", "48. Still in the sphere of administrative law, the amount of compensation is governed by the general principle of full compensation for damage (neither impoverishment nor enrichment of the victim). Compensation may take the form of a capital sum or an annuity. According to the principle of the equal validity of claims for all heads of damage, both pecuniary damage and non- pecuniary damage confer entitlement to compensation.", "B. Law no. 2002-303 of 4 March 2002 on patients ’ rights and the quality of the health service, published in the Official Gazette of the French Republic on 5 March 2002", "49. The Law of 4 March 2002 put an end to the position established by the case-law mentioned above, of both the Conseil d ’ Etat and the Court of Cassation alike. Its relevant parts provide as follows:", "Section 1", "“I. No one may claim to have suffered damage by the mere fact of his or her birth.", "A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it.", "Where the liability of a health -care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence ( faute caractérisée ), the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child. Compensation for the latter is a matter for national solidarity.", "The provisions of the present sub-section I shall be applicable to proceedings in progress, except for those in which an irrevocable decision has been taken on the principle of compensation.", "III. Law no. 2002-303 ’ s compatibility with international law", "(1) ...", "The object of section 1 of the Law of 4 March 2002 is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents, differing from the system which had emerged from the case-law of the administrative and ordinary courts. The new system provides for compensation, by means of an award to be assessed by the courts alone, for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of the child born with a disability which, on account of gross medical negligence, was not detected during pregnancy. It prevents children born with a disability which, on account of medical negligence, was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives, whereas such compensation had previously been possible under the case-law of the ordinary courts. It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child ’ s disability throughout its life, whereas such compensation had previously been possible under the case-law of the administrative courts. Lastly, it makes compensation for other heads of damage suffered by the child ’ s parents subject to the existence of gross negligence, whereas the case-law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence.", "This new system, which was put in place by Parliament on general - interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, is not incompatible with the requirements of Article 6 § 1 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention], with those of Article 1 of Protocol No. 1 [to the Convention] or with those of Articles 14 and 26 of the Covenant on Civil and Political Rights.", "(2) The last sub-paragraph of paragraph I of section 1 makes the provisions of paragraph I applicable to pending proceedings “except for those in which an irrevocable decision has been taken on the principle of compensation”.", "The general - interest grounds taken into account by Parliament when it laid down the rules in the first three sub-paragraphs of paragraph I show, in relation to the points raised in the request for an opinion, that the intention behind the last sub-paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings, while rightly reserving final judicial decisions.”", "D. French national solidarity towards disabled persons", "1. Situation before February 2005", "52. French legislation (see Law no. 75-534 of 30 June 1975 on orientation in favour of disabled persons, which set up the basic framework, and later legislation) provides compensatory advantages to disabled persons based on national solidarity in a number of fields (such as the right to education for disabled children and adults, technical and human assistance, financial assistance, etc.).", "In particular, the families of disabled persons are entitled to a special education allowance ( Allocation d ’ éducation spéciale – “ the AES” ). This is a family benefit paid from the family allowance funds, provided both the child and its parents are resident in France. The AES is granted by decision of the Special Education Board of the département in which the claimant lives, after the file has been studied by a multidisciplinary technical team. First the Special Education Board takes formal note of the child ’ s disability and assesses it. For entitlement to the AES, the level of disability found must at least exceed 50%. Where the disability exceeds 80%, entitlement to the AES is automatic; if the disability is assessed at between 50% and 80%, payment of the allowance is not automatic. It is subject to the child ’ s need for pedagogical, psychological, medical, paramedical and other forms of assistance.", "The AES is a two-level benefit: the basic allowance plus top-up payments. The first level is automatically payable where the conditions mentioned above are satisfied. The basic rate of AES is EUR 115 per month (the figure supplied by the Government on 16 March 2003 ). Where the child ’ s state of health requires substantial expenditure or the assistance of a third person, this may then confer entitlement to one of the six levels of AES top-up payments, which are added to the basic rate.", "The first five top-up payments depend on the level of expenditure required by the child ’ s state of health, the time for which the assistance of a third person is necessary, or a combination of both. The sixth level of top-up payment is for the most severe cases, where the child ’ s state of health requires the assistance of a third person all through the day and the families have to provide constant supervision and treatment.", "2. Changes made by Law no. 2005-102 of 11 February 2005 on equal rights and opportunities, participation and citizenship for disabled persons, published in the Official Gazette of the French Republic on 12 February 2005", "53. The Law of 11 February 2005 emerged from a legislative process launched as far back as July 2002 with the intention of reforming the system of disability compensation in France. It was pointed out in particular that following the enactment of the Law of 4 March 2002 it was necessary to legislate again “to give effective substance to national solidarity” (see the Information Report produced on behalf of the Senate ’ s Social Affairs Committee by Senator P. Blanc, containing 75 proposals for amending the Law of 30 June 1975, appended to the record of the Senate ’ s sitting on 24 July 2002, p. 13).", "54. The new law makes a number of substantial changes. In particular, it includes for the first time in French law a definition of disability and introduces a new “compensatory benefit” to be added to existing forms of assistance.", "55. To that end, the Law of 11 February 2005 amends the Social Action and Family Code. Its relevant provisions are worded as follows:", "Title I: General provisions", "Section 2", "“I. ... A disability, within the meaning of the present Law, is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial, lasting or permanent impairment of one or more physical, sensory, mental, cognitive or psychological functions, a multiple disability, or a disabling health disorder. ...", "Every disabled person shall be entitled to solidarity from the whole national community, which, by virtue of that obligation, shall guarantee him or her access to the fundamental rights of all citizens, and the full exercise of citizenship.", "The State shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans. ...", "II. – 1. The first three sub-paragraphs of the first paragraph of section 1 of Law no. 2002-303 of 4 March 2002 on patients ’ rights and the quality of the health service shall become Article L. 114-5 of the Social Action and Family Code.", "2. The provisions of Article L. 114-5 of the Social Action and Family Code, as amended by sub-paragraph 1 of the present paragraph II, shall be applicable to proceedings in progress on the date of the entry into force of the above-mentioned Law no. 2002-303 of 4 March 2002, except for those in which an irrevocable decision has been taken on the principle of compensation.” ...", "Title III: Compensation and resources", "Chapter 1: Compensation for the consequences of disability", "Section 11", "“ ... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment, or his or her age or lifestyle.", "That compensation shall consist in meeting his or her needs, including nursery care in early childhood, schooling, teaching, education, vocational insertion, adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy, developing or improving the supply of services, in particular to enable those around the disabled person to enjoy respite breaks, developing mutual support groups or places in special establishments, assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment, or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by Title XI of Book 1 of the Civil Code. The above responses, adapted as required, shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone.", "The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan, written by himself or herself or, failing that, where he or she is unable to express an opinion, with or for him or her by his or her legal representative.”", "Section 12 Compensatory benefit", "“ ... I. – Every disabled person stably and regularly resident in metropolitan France ... above the age at which entitlement to the disabled child ’ s education allowance [formerly the AES] begins ..., whose age is below the cut-off point to be laid down by decree and whose disability matches the criteria to be laid down by decree, taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan, shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable, at the wishes of the beneficiary, either in kind or in money. ...", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION", "59. The applicants complained of section 1 of Law no. 2002-303 of 4 March 2002 on patients ’ rights and the quality of the health service (see paragraph 49 above). They submitted that that provision had infringed their right to the peaceful enjoyment of their possessions and breached Article 1 of Protocol No. 1 to the Convention, which provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Arguments of the parties", "1. The applicants", "60. The applicants observed that before the enactment of the Law of 4 March 2002 they had brought proceedings seeking full compensation for the damage they had sustained, and in particular for the damage consisting in the special burdens arising from their child ’ s disability throughout his life. They submitted that since the conditions for declaring AP-HP liable on the basis of the above-mentioned Quarez judgment (see paragraphs 38 to 42) were satisfied, their claims should have been met in full. They therefore had a possession within the meaning of Article 1 of Protocol No. 1 to the Convention, namely a compensation claim against AP-HP, in respect of which they had a legitimate expectation of obtaining judgment in their favour (see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332). Since the Law of 4 March 2002 was applicable to pending proceedings, including their case, its effect had been to deprive them of their claim. Its enactment therefore constituted “interference” with their right to the peaceful enjoyment of their possessions, as indeed the Government acknowledged.", "As regards the legitimacy of the interference, the applicants submitted that it had not struck a fair balance between the demands of the general interest (regard being had in particular to the reasons for the legislation ’ s enactment, which could not justify making it retrospective) and protection of their fundamental rights, since the effect of the law concerned had been to deprive them of their claim without effective compensation.", "They further stressed the enormous and disproportionate impact of the decision to make the new legislation immediately applicable to pending proceedings, bearing in mind in particular the fact that it referred to arrangements for assisting disabled persons through reliance on national solidarity, which they considered inadequate, vague and imprecise. In that connection, they submitted that although the recently enacted Law of 11 February 2005 (see paragraphs 53 to 58 above) had brought in a new benefit to compensate for disability, it could not cancel out the disproportion given the form that this compensatory benefit system was to take, and it still left the applicants to bear an excessive burden.", "2. The Government", "61. Relying likewise on the Court ’ s above-mentioned Pressos Compania Naviera S.A. and Others judgment, the Government submitted that it was not possible to establish as a general rule that before enactment of the Law of 4 March 2002 and in the light of the case-law then applicable the parents of children born with disabilities as a result of a medical error were certain to receive compensation as a matter of course. They did not therefore systematically have a “legitimate expectation” of having their claims met which could have been frustrated by the Law ’ s enactment.", "The Government acknowledged, however, that it was a different matter in the present case in so far as AP-HP had explicitly and unreservedly admitted liability towards the applicants. When the new legislation came into force there had therefore been no doubt about the principle of compensation, which, in accordance with the settled case-law established since the time of the above-mentioned Quarez judgment, covered the special burdens arising for the parents from their child ’ s infirmity. Before the entry into force of the Law of 4 March 2002 the applicants could therefore legitimately expect to be compensated for those “special burdens”, a head of damage which had been excluded by the new legislation. The Government accordingly accepted that there had been interference with the right to the peaceful enjoyment of a “possession”.", "62. As regards, on the other hand, the legitimacy of that interference, the Government argued that the partial deprivation of possessions the applicants had suffered could not be declared contrary to Article 1 of Protocol No. 1 to the Convention, given, inter alia, the aim of the Law of 4 March 2002, the main object of which had been to clarify a system of liability for medical acts which had been raising legal and ethical problems and which, as the Government stressed at the hearing, had been established by a recent judgment (the Quarez judgment not having been delivered until 1997, whereas the applicants ’ child had been born in 1996). The new legislation had not really been retrospective; after modifying the existing legal situation it had merely made the new rules immediately applicable to pending proceedings – a common practice.", "Referring to the opinion given by the Conseil d ’ Etat on 6 December 2002, still with the aim of establishing the legitimacy of the interference, the Government next referred to the general-interest considerations which, they submitted, had justified the enactment of the legislation complained of and its applicability to pending proceedings.", "These included, in the first place, ethical reasons, reflected mainly in paragraph I of section 1. In the light of the reactions to the above-mentioned Perruche judgment (see paragraphs 43 to 46), Parliament had intervened to provide a coherent solution to a problem that had been the subject of national debate and had raised crucial ethical issues concerning, inter alia, human dignity and the status of the unborn child. The main aim had been to exclude recognition of a child ’ s right to complain of being brought into the world with a congenital disability, a matter on which society had been required to make a fundamental decision. That was why there could be no difference in treatment between pending proceedings depending on whether they had been brought before or after the Law ’ s promulgation.", "Secondly, there were questions of natural justice. It was argued that the legislation in issue reflected the need to ensure fair treatment for all disabled persons whatever the severity and cause of their disability. Such intervention had been all the more necessary because, following the Quarez and Perruche judgments, the system of compensation for disabled persons had become unsatisfactory. That concern for fair treatment, it was submitted, was the reason why the legislation had been made immediately applicable, so that no distinction would be drawn between disabled persons in accordance with the date on which their applications had been lodged, whether before or after the Law ’ s promulgation. Natural justice had also prompted the decision to abolish the rule requiring health-care workers and establishments to pay compensation for disabilities not detected during pregnancy, which was perceived as deeply unfair by obstetricians and doctors performing prenatal ultrasound scans.", "Lastly and above all, Parliament had intervened for reasons having to do with the proper organisation of the health service, which was under threat as a result of the discontent expressed by health-care practitioners in the wake of the above-mentioned Perruche judgment. In the face of strikes, resignations and refusals to carry out ultrasound scans, the legislature had acted to ensure that there would continue to be sufficiently well-staffed medical services in the fields of obstetrics and ultrasound scanning and that pregnant women and unborn children would receive medical attention in satisfactory conditions.", "63. The Government further argued that there had been a fair balance between the objective pursued by the legislature and the means it had employed. They submitted in that connection that neither the parents of disabled children nor the children themselves had been deprived of all forms of assistance and that there was still statutory liability for negligence by health-care workers. Parliament had been obliged to give the need to preserve the health service priority over the hopes of a few parents for additional compensation. In view of the large number of doctors on strike, the immediate application of the new legislation had been necessary in order to limit the flight of private practitioners out of the prenatal diagnosis sector. The Government further emphasised that at first instance, after the entry into force of the legislation in issue, the applicants had obtained compensation which, while it might not have been as much as they had hoped to receive, was far from a token payment, since it amounted to EUR 180,000. That amount had equalled the compensation paid in the above-mentioned Quarez case. Consequently, although the applicants had not obtained compensation for all the heads of damage they claimed, they had received a considerable sum of money.", "64. In addition, the Government contended, the level of assistance provided by way of national solidarity should not be disregarded. Measures had already been in place before the Law of 4 March 2002 and these had been supplemented by those provided for in the recently enacted Law of 11 February 2005. Thus disabled persons and their families had not suffered excessive consequences as a result of application of the Law of 4 March 2002. They had not been deprived of financial support, the difference being that this would no longer be provided by health-care workers only but also by the State.", "B. The Court ’ s assessment", "1. Whether there was a “possession” and interference with the right to peaceful enjoyment of that “possession”", "65. The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions relate to his “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an “asset” falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it. Where that has been done, the concept of “legitimate expectation” can come into play.", "66. As regards the concept of “legitimate expectation”, one aspect of this was illustrated in the above-mentioned case of Pressos Companía Naviera S.A. and Others, which concerned claims for damages arising from accidents to shipping allegedly caused by the negligence of Belgian pilots. Under the Belgian law of tort, claims came into being as soon as damage had occurred. The Court classified these claims as “assets” attracting the protection of Article 1 of Protocol No. 1. It went on to note that, on the basis of a series of judgments of the Court of Cassation, the applicants could argue that they had a “legitimate expectation” that their claims deriving from the accidents in question would be determined in accordance with the general law of tort.", "67. The Court did not expressly state in the Pressos Companía Naviera S.A. and Others case that the “legitimate expectation” was a component of, or attached to, the property right claimed. However, it was implicit in the judgment that no such expectation could come into play in the absence of an “asset” falling within the ambit of Article 1 of Protocol No. 1, which in that case was a compensation claim. The “legitimate expectation” identified in the Pressos Companía Naviera S.A. and Others case did not in itself constitute a proprietary interest; it related to the way in which the claim qualifying as an “asset” would be treated under domestic law, and in particular to the reliance on the fact that the established case-law of the national courts would continue to be applied in respect of damage which had already occurred.", "68. In a line of cases the Court has found that the applicants did not have a “legitimate expectation” where it could not be said that they had a currently enforceable claim that was reasonably established. ... The Court ’ s case-law does not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there is a “legitimate expectation” protected by Article 1 of Protocol No. 1. ... The Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 35 and 48 to 52, ECHR 2004-IX).", "69. Moreover, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see, among other authorities, Pressos Compania Naviera S.A. and Others, cited above, § 33).", "70. In the present case it is not disputed that there was an interference with the right to peaceful enjoyment of a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. The parties accept that, regard being had to the position regarding liability which obtained under French law at the time of the enactment of the Law of 4 March 2002, and particularly to the settled case-law of the administrative courts, which had been established by the Quarez judgment mentioned above, the applicants had suffered prejudice caused directly by negligence on the part of AP-HP and had a claim in respect of which they could legitimately expect to obtain compensation for damage, including the special burdens arising from their child ’ s disability.", "71. The Law of 4 March 2002, which came into force on 7 March 2002, deprived the applicants of the possibility of obtaining compensation in respect of those special burdens by virtue of the precedent set by the Quarez judgment of 14 February 1997, whereas they had lodged their claim with the Paris Administrative Court as early as 29 March 1999, and the domestic courts, in two orders made by the judge responsible for urgent applications, on 10 May 1999 and 11 August 2001, had made interim awards which together amounted to a substantial sum, the liability of AP-HP towards them not being seriously contestable. The law complained of therefore entailed interference with the exercise of the right to compensation which could have been asserted under the domestic law applicable until then, and consequently of the applicants ’ right to peaceful enjoyment of their possessions.", "72. The Court notes that in the present case, in so far as the impugned law applied to proceedings brought before 7 March 2002 which were still pending on that date, such as those brought by the applicants, the interference amounted to a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. It must therefore determine whether the interference complained of was justified under that provision.", "2. Whether the interference was justified", "(a) “Provided for by law”", "73. It is not disputed that the interference complained of was “provided for by law”, as required by Article 1 of Protocol No. 1 to the Convention.", "74. On the other hand, the parties disagreed about the legitimacy of that interference. The Court must accordingly determine whether it pursued a legitimate aim, in other words whether there was a “public interest”, and whether it complied with the principle of proportionality for the purposes of the second rule laid down in Article 1 of Protocol No. 1 to the Convention.", "(b) “In the public interest”", "75. The Court considers that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities, accordingly, enjoy a certain margin of appreciation.", "76. Furthermore, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature ’ s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see Pressos Compania Naviera S.A. and Others, cited above, § 37, and Broniowski v. Poland [GC], no. 31443/96, § 149, ECHR 2004- V ).", "77. In the present case the Government submitted that section 1 of the Law of 4 March 2002 was prompted by general-interest considerations of three kinds: ethical concerns, and in particular the need to legislate on a fundamental choice of society; fairness; and the proper organisation of the health service (see paragraph 62 above). In that connection, the Court has no reason to doubt that the French parliament ’ s determination to put an end to a line of case-law of which it disapproved and to change the legal position on medical liability, even by making the new rules applicable to existing cases, was “in the public interest”. Whether this public-interest aim was of sufficient weight for the Court to be able to find the interference proportionate is another matter.", "(c) Proportionality of the interference", "78. An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others, cited above, § 38 ).", "79. Compensation terms under the relevant domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71; The Former King of Greece and Others v. Greece, [GC], no. 25701/94, § 89, ECHR 2000-XII; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005).", "80. The Court observes that the Conseil d ’ Etat acknowledged in its Quarez judgment of 14 February 1997 that the State and public-law bodies such as AP-HP, a public health institution providing the public hospital service, were subject to the rules of ordinary law on liability for negligence. It notes that that case-law, although relatively recent, was settled and consistently applied by the administrative courts. As the Quarez judgment antedated the discovery of R. ’ s disability and above all the commencement of the applicants ’ action in the French courts, the latter could legitimately expect to rely on it to their advantage.", "81. By cancelling the effects of the Quarez judgment, and those of the Court of Cassation ’ s Perruche judgment, on pending proceedings, the law complained of applied a new liability rule to facts forming the basis for an actionable claim which had occurred before its entry into force and which had given rise to legal proceedings which were still pending at that time, so that it had retrospective scope. Admittedly, the applicability of legislation to pending proceedings does not necessarily in itself upset the requisite fair balance, since the legislature is not in principle precluded in civil matters from intervening to alter the current legal position through a statute which is immediately applicable (see, mutatis mutandis, Zielinski and Pradal & Gonzalez and Others v. France [GC], nos. 24864/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII).", "82. In the present case, however, section 1 of the Law of 4 March 2002 abolished purely and simply, with retrospective effect, one of the essential heads of damage, relating to very large sums of money, in respect of which the parents of children whose disabilities had not been detected before birth, like the applicants, could have claimed compensation from the hospital held to be liable. The French legislature thereby deprived the applicants of an existing “ asset ” which they previously possessed, namely an established claim to recovery of damages which they could legitimately expect to be determined in accordance with the decided case-law of the highest courts of the land.", "83. The Court cannot accept the Government ’ s argument that the principle of proportionality was respected, provision having been made for an appropriate amount of compensation, which would thus constitute a satisfactory alternative, to be paid to the applicants. It does not consider that what the applicants could receive by virtue of the Law of 4 March 2002 as the sole form of compensation for the special burdens arising from the disability of their child was, or is, capable of providing them with payment of an amount reasonably related to the value of their lost asset. The applicants are admittedly entitled to benefits under the system now in force, but the amount concerned is considerably less than the sum payable under the previous liability rules and is clearly inadequate, as the Government and the legislature themselves admit, since these benefits were extended recently by new provisions introduced for that purpose by the Law of 11 February 2005. Moreover, neither the sums to be paid to the applicants under that law nor the date of its entry into force for disabled children have been definitively fixed (see paragraphs 56 to 58 above). That situation leaves the applicants, even now, in considerable uncertainty, and in any event prevents them from obtaining sufficient compensation for the damage they have already sustained since the birth of their child.", "Thus, both the very limited nature of the existing compensation payable by way of national solidarity and the uncertainty surrounding the compensation which might result from application of the 2005 Act rule out the conclusion that this important head of damage may be regarded as having been reasonably compensated in the period since enactment of the Law of 4 March 2002.", "84. As regards the compensation awarded to the applicants by the Paris Administrative Court to date, the Court notes that it covers non-pecuniary damage and disruption to the applicants ’ lives, but not the special burdens arising from the child ’ s disability throughout his life. On this point, the Court is led to the inescapable conclusion that the amount of compensation awarded by the Paris Administrative Court was very much lower than the applicants could legitimately have expected and that, in any case, it cannot be considered to have been definitively secured, since the award was made in a first-instance judgment against which an appeal is pending. The compensation thus awarded to the applicants cannot therefore compensate for the claims now lost.", "85. Lastly, the Court considers that the grounds relating to ethical considerations, equitable treatment and the proper organisation of the health service mentioned by the Conseil d ’ Etat in its opinion of 6 December 2002 and relied on by the Government could not, in the instant case, legitimise retrospective action whose result was to deprive the applicants, without sufficient compensation, of a substantial portion of the damages they had claimed, thus making them bear an individual and excessive burden.", "Such a radical interference with the applicants ’ rights upset the fair balance to be maintained between the demands of the general interest on the one hand and protection of the right to peaceful enjoyment of possessions on the other.", "86. In so far as it concerned proceedings pending on 7 March 2002, the date of its entry into force, section 1 of the Law of 4 March 2002 therefore breached Article 1 of Protocol No. 1 to the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION", "87. The applicants complained that the Law of 4 March 2002, by setting up a specific liability system, had created an unjustified inequality of treatment between the parents of children whose disabilities were not detected before birth on account of negligence and the parents of children disabled on account of some other form of negligence, to whom the principles of ordinary law would continue to apply. They relied on Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Arguments of the parties", "1. The applicants", "88. The applicants complained that the Law of 4 March 2002 had created an unjustified inequality of treatment between the parents of children whose disabilities had not been detected before birth on account of negligence, for whom compensation for the special burdens arising from the disability throughout the child ’ s life was a matter of national solidarity alone, and the victims of other negligent acts which had caused disability, to whom the principles of the ordinary law of tort would continue to apply. They pointed out that there was no longer any dispute as to whether they had a “possession”. The Law of 4 March 2002 had infringed their right to the peaceful enjoyment of their possessions by creating inequality of treatment between them and the other category of parents, whereas, in their submission, the two situations were essentially similar, both being concerned with compensation for prejudice resulting from a disability caused by negligence. In addition, the applicants submitted that no general ‑ interest or public-interest considerations could justify the discriminatory treatment resulting from the new legislation.", "2. The Government", "89. The Government submitted, as their main argument, that the two categories were not in the same situation. Where the disability had been directly caused by medical negligence, the negligence preceded the disability, was the cause of it and was therefore the original source of the prejudice sustained by the parents through the birth of a disabled child. In the applicants ’ case, the negligence had not been the direct cause of the disability, which already existed. The only prejudice it had occasioned lay in not having an abortion, or in not having the possibility of aborting. As the causal links between the medical negligence and the disability were different in the two cases, they – rightly, in the Government ’ s opinion – formed the rationale for two different sets of liability rules. It could not therefore be concluded that there had been discrimination since the situations were not the same.", "90. In the alternative, the Government argued that reliance on national solidarity to provide assistance with the special burdens arising from the disability of children in R. ’ s situation was not discriminatory since, like the others, they had the benefit of extensive support measures. In addition, the Government considered that the difference in treatment between the two situations was reasonably proportionate to the legitimate objectives of the Law of 4 March 2002.", "B. The Court ’ s assessment", "91. Regard being had to its finding of a violation concerning the applicants ’ right to the peaceful enjoyment of their possessions (see paragraph 8 6 above), the Court does not consider it necessary to examine the applicants ’ complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "92. The applicants alleged that the immediate applicability of the Law of 4 March 2002 to pending proceedings, including their case, infringed their right to a fair trial. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "A. Arguments of the parties", "1. The applicants", "93. Relying on the Court ’ s case-law (particularly Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, and Zielinski and Pradal and Gonzalez and Others, cited above), the applicants alleged that the provisions of the Law of 4 March 2002 disregarded the rule that the principle of the rule of law and the notion of fair trial (in particular the principle of the equality of arms) precluded any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute, save on compelling grounds of the general interest. They argued that no compelling grounds of the general interest justified the retrospective provisions complained of. They submitted that there was no need to define the precise nature of the Law of 4 March 2002 since it did constitute retrospective legislative intervention of the type regularly criticised by the Court in its case-law. The presence of the State as a party in the dispute was not required for that case-law to apply. In any event, in the present case, the State was a party at one remove, since AP-HP was a public administrative establishment under State control. Lastly, the applicants contested the argument that national solidarity made good the prejudice for which they had not been compensated, since the existing provisions for the assistance of disabled persons were inadequate and future measures uncertain, and in any case belated and ineffective as regards compensating for the special burdens arising from their child ’ s disability.", "2. The Government", "94. The Government submitted that the present case was to be distinguished from those previously examined by the Court in connection with the question of “legislative validations”, and particularly from the cases of Stran Greek Refineries and Stratis Andreadis and Zielinski and Pradal & Gonzalez and Others, cited above. The law complained of was different in nature and could not be classified as “validating” legislation nor be compared to those previously criticised by the Court. The object of the Law of 4 March 2002 had not been to frustrate actions going through the courts but rather, following the debate on the Perruche judgment, to clarify liability rules which were causing difficulties. Intervening independently of any particular dispute, in a field which was appropriate for legislative intervention, and without interfering either in pre-existing contractual relations or with the proper administration of justice, Parliament had enacted a law which was not really retrospective but essentially interpretative. Moreover, the State was not in any way a party in the dispute which had given rise to the present case, nor was it defending its own interests. It followed that the legislature ’ s intervention did not amount to interference and had not been intended to influence the outcome of the dispute. Furthermore, even if it were accepted that there had been such interference, it was justified since the Law of 4 March 2002 pursued several legitimate objectives, to which the Conseil d ’ Etat had drawn attention in its opinion of 6 December 2002 (set out in paragraph 62 above). Lastly, the Government repeated their argument that there was a “reasonable relationship of proportionality” between the objective pursued by the legislature and the means it had employed. It emphasised the level of assistance provided by way of national solidarity, referring not only to the measures already taken domestically but also to those planned for the future.", "B. The Court ’ s assessment", "95. Regard being had to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 1 of Protocol No. 1 to the Convention (see paragraphs 65 to 8 6 above), the Court does not consider it necessary to examine separately the applicants ’ complaint under Article 6 § 1 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "96. The applicants further alleged that the immediate applicability of the Law of 4 March 2002 to pending proceedings deprived them of an effective remedy, since they could no longer obtain compensation, from the person responsible, for the special burdens arising from their child ’ s disability. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "97. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of an “arguable” complaint under the Convention and to grant appropriate relief (see, among other authorities, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95).", "98. As the Court concluded above that there has been a violation of Article 1 of Protocol No. 1 to the Convention, there is no doubt that the complaint relating to that provision is arguable for the purposes of Article 13 of the Convention. However, according to the Court ’ s case-law, Article 13 does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority (see, for example, Gustafsson v. Sweden, judgment of 25 April 1996, Reports 1996 ‑ II, § 70). Consequently, the applicants ’ complaint falls foul of that principle in so far as they complained of the lack of a remedy after 7 March 2002, the date of the entry into force of section 1 of the Law of 4 March 2002 on patients ’ rights and the quality of the health service ( see, mutatis mutandis, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002 ‑ VI ).", "99. Accordingly, the Court finds no violation of Article 13 of the Convention in the present case.", "V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, AND OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8", "100. The applicants submitted that the fact that section 1 of the Law of 4 March 2002 was applied in their case while it was still pending constituted arbitrary interference by the State which infringed their right to respect for their family life. They relied on Article 8 of the Convention, the relevant parts of which provide as follows:", "“ 1. Everyone has the right to respect for his private and family life...", "2. There shall be no interference by a public authority with the exercise of this right except as such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicants", "101. At the hearing before the Court the applicants asserted that Article 8 of the Convention was applicable to the present case in that it proclaimed the right to a normal family life. They argued that the Law of 4 March 2002 had infringed that right and constituted interference with its exercise. But none of the conditions required for such interference to be compatible with the Convention, namely that it should be in accordance with the law, in pursuit of a legitimate aim and necessary, had been satisfied. In the first place, the legislation was neither clear nor precise, contrary to the requirements established by the Court ’ s case-law, in that the reference to national solidarity remained vague and imprecise. Secondly, and above all, the interference did not pursue a legitimate and compelling objective. In that connection, the applicants submitted, among other arguments, that the considerations linked to improving the organisation of the health service, chief among which was the concern to avoid increases in insurance premiums for doctors and health-care establishments, could not justify giving these immunity in respect of their negligent acts or omissions. Moreover, the State had not guaranteed the exercise of the applicants ’ right to a family life, since by depriving them of a remedy whereby they might seek compensation for the prejudice consisting in the special burdens arising from their child ’ s disability the legislature had blocked protection of the family ’ s interests.", "102. At the hearing the applicants also invoked, for the first time, Article 14 of the Convention taken together with Article 8, in connection with the right to a normal family life. They asserted that the law complained of introduced unjustified discrimination between the parents of children born disabled as a result of negligence by a doctor who had failed to detect the disability during the mother ’ s pregnancy, who could not obtain full reparation for the consequences of such negligence, like the applicants, and the parents of disabled children who were able to impute the damage to a third party and obtain full reparation.", "2. The Government", "103. As their main argument, the Government contested the applicability of Article 8 of the Convention. Relying on the Court ’ s case-law (citing Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31 ), they distinguished between patrimonial rights which, by their nature, had a connection with family life (such as successions and voluntary dispositions) and those which had only an indirect link with family life, like the right to compensation for medical negligence. Accepting that Article 8 applied to the latter, and in particular to the present case, would bring within the scope of that provision any material claim a family might have, even one having nothing to do with the family structure. Even though, as the Government accepted, the question whether or not the costs arising from R. ’ s disability would be reimbursed was likely to affect the life of the applicants ’ family, it did not have any bearing on the patrimonial relations between parents and children.", "104. Even if the Court were to take the view that Article 8 was applicable in the case, the Government further submitted that no interference had been established. Even if that were so, the interference would be in pursuit of a legitimate aim and necessary in a democratic society, regard being had in particular to the legitimate objectives pursued by the Law of 4 March 2002.", "B. The Court ’ s assessment", "1. General principles", "105. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely require the State to abstain from such interference: there may in addition be positive obligations inherent in effective “respect” for family life. The boundaries between the State ’ s positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see, for example, Nuutinen v. Finland, no. 32842/96, 27 June 2000, § 127, and Kutzner v. Germany, no. 46544/99, 26 February 2002, §§ 61 and 62). Furthermore, even in relation to the positive obligations flowing from the first paragraph, “in striking [the required] balance the aims mentioned in the second paragraph may be of a certain relevance” ( see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 41).", "106. “Respect” for family life ... implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally (see Marckx, cited above, § 45). The Court has held that a State is under this type of obligation where it has found a direct and immediate link between the measures requested by an applicant, on the one hand, and his private and/or family life on the other (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 32; X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55; Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 227, § 58; Botta v. Italy, judgment of 24 February 1998, Reports 1998-I, § 35; and Zehnalova and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V).", "107. However, since the concept of respect is not precisely defined, States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 67, and Zehnalova and Zehnal, cited above).", "108. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII ). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that “ the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one”).", "2. Application of the above principles", "109. In the present case, in so far as the complaints submitted to the Court may be distinguished from those already examined under Article 1 of Protocol No. 1 to the Convention, the applicants complained of an unjustified interference, but also, in substance, of inaction by the State, which had not set up an effective system to provide compensation for the special burdens arising from their child ’ s disability.", "110. The first question to arise is whether Article 8 of the Convention is applicable, that is to say whether the measures taken by the respondent State in relation to disabled persons have anything to do with the applicants ’ right to lead a normal family life.", "111. However, the Court does not consider it necessary in the present case to determine that issue since, even supposing that Article 8 of the Convention may be considered applicable, it considers that the situation complained of by the applicants did not constitute a breach of that provision.", "112. It notes that section 1 of the Law of 4 March 2002 altered the existing legal position on the question of medical liability. In response to the Perruche judgment and the stormy nation-wide debate which ensued, reflecting the major differences of opinion on the question within French society, the French parliament, after consulting the various persons and interest groups concerned, decided to intervene to establish a new system of compensation for the prejudice sustained by children born with disabilities and their parents, different from the one resulting from the case-law of the administrative and civil courts. One of the main effects of the new rules established in consequence, spelled out by the Conseil d ’ Etat in its opinion of 6 December 2002, is that parents may no longer obtain compensation from the negligent party for damage in the form of the special burdens arising from their children ’ s disabilities throughout their lives. These rules were the result of comprehensive debate in Parliament, in the course of which account was taken of legal, ethical and social considerations, and concerns relating to the proper organisation of the health service and the need for fair treatment for all disabled persons. As the Conseil d ’ Etat pointed out in the opinion already mentioned, Parliament based its decision on general-interest grounds, and the validity of those grounds cannot be called into question by the Court (see paragraph 7 7 above). In doing so it was pursuing at least one of the legitimate aims set out in the second paragraph of Article 8 of the Convention, namely protection of health or morals.", "113. Admittedly, being immediately applicable, the provisions in issue retrospectively deprived the applicants of an essential part of the compensation to which they could lay claim, and the Court can only repeat that finding (see paragraphs 7 8 to 8 6 above).", "114. However, in deciding that the costs of caring for disabled children should be borne by reliance on national solidarity, the French legislature took the view that it was better to deal with the matter through the legislation laying down the conditions for obtaining compensation for disability than to leave to the courts the task of ruling on actions under the ordinary law of liability. Moreover, the Court notes that the previous legal dispensation, which had obtained since 1975, was thoroughly overhauled by the Law of 11 February 2005 (see paragraphs 53 to 58 above). It is certainly not for the Court to take the place of the national authorities in assessing the advisability of such a system or in determining what might be the best policy in this difficult social sphere. This is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation (see, mutatis mutandis, Powell and Rayner v. the United Kingdom, cited above, § 44).", "115. Consequently, there is no serious reason for the Court to declare contrary to Article 8, in either its positive or its negative aspect, the way in which the French legislature dealt with the problem or the content of the specific measures taken to that end. It cannot reasonably be claimed that the French parliament, by deciding to reorganise the system of compensation for disability in France, overstepped the wide margin of appreciation left to it on the question or upset the fair balance that must be maintained.", "116. There has accordingly been no violation of Article 8 of the Convention.", "117. As regards the complaint under Article 14 of the Convention taken together with Article 8, the Court notes that it was raised for the first time before it at the hearing on 23 March 2005 (see paragraph 102 above). It is therefore not covered by the decision on admissibility of 6 July 2004 which delimits the scope of the Court ’ s jurisdiction (see, among other authorities, Göç v. Turkey [GC], no. 36590/97, § 36, ECHR 2002-V, and Assanidze v. Georgia [GC], no. 71503/01, § 162, ECHR 2004 ). It follows that this complaint falls outside the scope of the case as submitted to the Grand Chamber.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "118. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary and non-pecuniary damage", "119. The applicants alleged that they had sustained pecuniary damage corresponding to the sums they would have received if the legal situation prior to the Law of 4 March 2002 had continued to obtain. Supplying the relevant vouchers, they claimed the following sums :", "a. EUR 38, 701. 32 and EUR 6, 922. 40 for the disruption to their working lives suffered by Mrs and Mr Draon respectively;", "b. EUR 22, 867. 35 for the loss of enjoyment of a piece of real property;", "c. EUR 91, 469. 40 for their non-pecuniary damage;", "d. EUR 45, 734. 70 for disruption to their lives;", "e. EUR 365, 499 for the additional costs of constructing a purpose-built house;", "f. EUR 42, 779 for indispensable adaptations within the home;", "g. EUR 5, 092, 588 for non-specialist care (assistance of a third person);", "h. EUR 52, 567. 47 for specific outlays remaining at their expense (non ‑ reimbursable purchases);", "i. EUR 35, 940. 99 for a specially equipped motor vehicle.", "120. As regards in particular the sums corresponding to “special burdens” ( listed under e. to i. above ), the applicants emphasised that the law enacted on 11 February 2005 would not be immediately applicable to children and that it would not ensure compensation for the prejudice they had already sustained since R. ’ s birth. In addition, in their submission, the benefits provided for in that law were inadequate.", "From the amounts indicated above, the applicants deducted the sum of EUR 180, 000 awarded by the Paris Administrative Court. Their claim for pecuniary damage therefore amounted in total to EUR 5, 615, 069. 63.", "The applicants requested a further EUR 12, 000 as compensation for the non-pecuniary damage resulting from the violations of the Convention they complained of.", "121. The Government contested all of the above claims, considering them to be unreasonable. As regards the claims under the head of pecuniary damage, they submitted in particular that the sums claimed under a. to d. above related to damage already made good by the domestic courts. As to the sums corresponding to the “special burdens” arising from R. ’ s disability (itemised under e. to i. above), these were already partly covered by the allowances paid by way of national solidarity, which were later to be supplemented by the provisions of the Law of 11 February 2005. It followed, in the Government ’ s submission, that the applicants should not be awarded a specific sum for pecuniary damage.", "The Government likewise considered that, in respect of the alleged non-pecuniary damage, if the Court were to find a violation that finding would constitute sufficient just satisfaction.", "122. The Court considers that, in the circumstances of the case, and regard being had in particular to the state of the proceedings in the national courts, the question of the application of Article 41 is not yet ready for decision in respect of pecuniary and non-pecuniary damage. It should therefore be reserved, account being taken of the possibility of an agreement between the respondent State and the applicants ( Rule 75 §§ 1 and 4).", "B. Costs and expenses", "123. With supporting vouchers, the applicants claimed EUR 15, 244 for costs and expenses incurred before the Court.", "124. The Government acknowledged that the applicants had used the services of a lawyer and that the case was of a certain complexity. They left assessment of the amount to be awarded under this head to the Court ’ s discretion, while submitting that it should not exceed EUR 7, 500.", "125. The Court notes that the applicants supported their claims by supplying a bill of costs containing an itemised breakdown of work done. Considering that the amounts claimed are not excessive in the light of the nature of the dispute, which was incontestably of a certain complexity, the Court allows the applicants ’ claims in full and awards them the sum of EUR 15, 244, including all taxes.", "C. Default interest", "126. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "6. The applicant was born in 1961 and lives in Rīga Parish.", "A. The applicant ’ s pregnancy", "7. On 18 October 2001 the applicant, who was forty years old at the time, discovered that she was in the fifth or sixth week of pregnancy during a gynaecological examination at A. Hospital.", "8. On Tuesday 15 January 2002, in her eighteenth week of pregnancy according to her medical notes (medical record no. 43), the applicant had an appointment with her gynaecologist, Dr L., at A. Hospital. The medical record notes that, during the appointment Dr L. issued a referral for the applicant to undergo an alpha-fetoprotein (“AFP”) test on the following Monday, 21 January 2002. The test checks the level of AFP in a pregnant woman ’ s blood as an indicator of potential foetal abnormalities. The applicant disputes the authenticity of medical record no. 43 and denies that any referral was made.", "9. The applicant did not attend the appointment for the AFP test on 21 January 2002.", "10. From February to June 2002 the applicant regularly attended appointments with Dr L. and her general practitioner.", "11. On 5 June 2002 the applicant gave birth to a daughter with Down ’ s syndrome.", "12. The applicant was discharged from hospital on 18 June 2002. She claims that a few days later she went to A. Hospital to obtain a copy of her medical records. She was given her medical records and made a copy at the hospital, before returning them. According to the applicant, her copy of medical record no. 43 contained no reference to the 15 January 2002 referral for an AFP test.", "B. The domestic proceedings", "1. The complaint to the MADEKKI", "13. On 1 July 20 0 2 the applicant complained to the Inspectorate for Quality Control of Medical Treatment ( “the MADEKKI ” ) about the quality of the antenatal medical care provided by Dr L. In particular, she complained that Dr L. had failed to refer her for the AFP test, which would have indicated the risk of foetal abnormality.", "14. On 2 July 2002 the MADEKKI requested A. Hospital to forward the applicant ’ s medical records.", "15. On 15 July 2002 the MADEKKI interviewed Dr L. She explained that although the applicant had been referred for the AFP test on 15 January 2002, she had failed to attend because she had been hospitalised. Following her release from hospital there had been no point in carrying out an AFP test since she was by then in her twenty-first week of pregnancy. Dr L. referred to the fact that the applicant had been referred for a genetic consultation in her twenty-fifth week of pregnancy. Dr L. also explained that after the baby had been delivered, she had discovered that the applicant ’ s eldest son had a mental illness, a fact which the applicant had concealed during her pregnancy. The applicant had further concealed the excessive alcohol consumption of her partner and father of the child.", "16. On 25 July 2002, having examined the applicant ’ s medical records and interviewed relevant doctors, the MADEKKI issued its opinion. It found that although the applicant had been referred for the AFP test, Dr L. had failed to ensure that the test was carried out. This failure was, it said, contrary to Ordinance No. 324 concerning antenatal and prenatal care (see paragraph 48 below). Dr L. was given an administrative fine of twenty-five Latvian lati.", "17. On 29 July 2002 the MADEKKI informed the applicant of its finding that she had received antenatal medical care in accordance with national law, save that Dr L. had failed to ensure that she had undergone the AFP test. It noted that AFP screening results could neither confirm nor exclude a congenital foetus abnormality but would rather serve as an indicator for further examinations. It also explained that the applicant bore some responsibility herself as she had failed to inform Dr L. of her eldest son ’ s illness. Had Dr L. been aware of the illness, she would have arranged for a medical genetic consultation in the first months of the applicant ’ s pregnancy, thus ensuring a timely diagnosis. Finally, the MADEKKI informed the applicant of her right to apply to the law enforcement authorities within one month of its decision if she was not satisfied with it.", "2. The request for criminal proceedings", "18. On 20 February 2004 the applicant officially requested access to her medical records. An approved copy was issued to her on 23 February 2004. She claims that she subsequently formed the view that the 15 January 2002 entry in medical record no. 43 concerning her referral for an AFP test had been added at a later date.", "19. On 20 October 2004 the applicant asked the District Prosecutor ’ s Office to investigate whether the discrepancies in the two copies of medical record no. 43 amounted to falsification of documents. She also alleged negligence on the part of Dr L. In support of her allegation, she submitted the unapproved copy of her medical records which she claims to have made in June 2002 (see paragraph 12 above).", "20. On 16 November 2004 the police interviewed Dr L. She explained that in the seventeenth week of pregnancy she had referred the applicant for the AFP test but the test had not been carried out, for unknown reasons, because the applicant had failed to attend the appointment. Dr L. referred to the applicant ’ s right to refuse the test. She added that the applicant had concealed the genetic illness of her eldest son. Had his situation been disclosed, Dr L. said that she would have arranged an immediate consultation with diagnosis by the twelfth week of pregnancy. As regards medical record no. 43, Dr L. explained that the entries in the record were made over an extended period of time as examination results were received and further appointments and treatment instructed. She also explained that medical record no. 43 had disappeared in January 2002 and was only recovered at a later date, when it was placed in the reception at A. Hospital outside its working hours. She told the police that it was not in the interests of the medical staff to lose or conceal the record, since it meant that all the medical examinations would have to be carried out again.", "21. On 22 November 2004 the police refused to institute criminal proceedings for falsification of records or negligence. The investigators were satisfied that the applicant had been referred for the test but that she had not turned up for the appointment. The investigators also found that there were no technical means available to establish precisely the time when the contested data concerning the referral had been entered in the applicant ’ s medical file.", "22. On 9 December 2004 the applicant appealed the decision. She sought the institution of criminal proceedings for falsification of documents by a group of persons. On 28 December 2004 the District Prosecutor ’ s Office quashed the decision of 22 November 2004 and ordered further investigation into the disappearance of the applicant ’ s medical record and the making of the contested entry.", "23. In February 2005 further police investigations were carried out. The State Forensic Expertise Bureau confirmed that it did not have the ability to establish, by forensic methods, the date on which the contested entry was made. Dr L. was questioned again and confirmed the disappearance of the medical record in 2002. The applicant ’ s general practitioner and nurse were interviewed. The nurse told the police that in 2002 the applicant had frequently visited her general practitioner and brought medical record no. 43 with her, in order to record future appointments. The general practitioner had updated the record during her visits and returned it to her. Staff of A. Hospital were also interviewed and confirmed the temporary disappearance of the applicant ’ s medical record.", "24. On 4 April 2005 the police refused to institute criminal proceedings for falsification of documents by a group of persons.", "25. On 25 May 2004 the applicant appealed the decision. On 18 July 2005 the District Prosecutor ’ s Office quashed the decision of 4 April 2005 and again remitted the complaint for further investigation. It noted that the applicant had submitted a non-approved copy of medical record no. 43 and referred to the need to ascertain whether there were witnesses who could testify that the contested entry was missing in June 2002 when the copy was allegedly made.", "26. On 30 September 2005, after further interviews with Dr L. and the applicant ’ s general practitioner, the police again refused to institute criminal proceedings. They concluded that it was not possible to determine whether the information concerning the disputed referral for the AFP test had been missing from the applicant ’ s medical records in June 2002.", "27. The refusal to institute proceedings was upheld by the District Prosecutor ’ s Office on 19 December 2005. However, on 17 May 2006, following an appeal by the applicant to the Regional Prosecutor ’ s Office, the latter revoked the decision of 30 September 2005 and instituted criminal proceedings.", "28. On 8 June 2006 the police requested forensic tests on medical record no. 43. An expert report dated 7 July 2006 concluded that the medical records were not falsified but that they had been supplemented with new information over an extended period of time.", "29. On 12 September 2006 the applicant was informed that the criminal proceedings had been terminated owing to the expiry of the statutory limitation period.", "3. The civil proceedings", "(a) The proceedings before the Riga Regional Court", "30. Meanwhile, on 16 August 2005 the applicant lodged a claim for damages against A. Hospital. She contended that Dr L. had been negligent as she had not identified the applicant as belonging to a high-risk group and had not referred her for the AFP test. The applicant also alleged that Dr L. had subsequently modified the medical records in order to conceal the failure. She further claimed that Dr L. had not put in place a medical care plan in respect of her pregnancy and was therefore not in a position to provide the applicant with the necessary information on her treatment, in violation of sections 20 and 41 of the Medical Treatment Law (see paragraphs 44 and 47 below). As a result of these failings, the applicant had been prevented from availing herself of her right to agree to or decline the AFP test. She claimed that had she known that the child had a congenital disease, she would have chosen to undergo an abortion on medical grounds. She claimed compensation for pecuniary and non-pecuniary damage, including compensation for lost wages and a lump-sum maintenance award for her daughter.", "31. A hearing took place on 20 December 2005. The applicant ’ s legal representative asked the court to hear the applicant as a witness in order for her to give evidence on the facts of the case. The court rejected the application without providing reasons. However, it granted the defendant ’ s application for Dr L. to appear as a witness and give oral evidence.", "32. On 2 January 2006 the Riga Regional Court ( Rīgas Apgabaltiesa ) dismissed the applicant ’ s civil claim. The court held that, as it could not be proved that Dr L. had falsified the applicant ’ s medical records, the applicant had failed to turn up for the AFP test. It also noted that she had failed to inform Dr L. of her eldest child ’ s condition. It found that the applicant was not in a high-risk category merely on account of her age, and that the applicant was to blame for the fact that the AFP test was not carried out. It concluded that there was no causal link between the actions of Dr L. and the birth of the applicant ’ s child. Even though Dr L. had been given an administrative fine for her failure to ensure that the applicant had the AFP test, this was insufficient to prove that Dr L. had been at fault.", "(b) The appeal before the Civil Chamber of the Supreme Court", "33. The applicant appealed. She argued that Dr. L had been obliged to take all medical steps to establish whether her unborn child was healthy. Since she had not done everything required of her in order to discover the child ’ s genetic abnormality in a timely manner, it had not been possible for the applicant to prevent the birth of a child with a congenital disorder. The applicant argued that the court had erred in finding that she did not belong to a risk group due to her age, since Ordinance No. 324 indicated that pregnant women above the age of 35 should have the AFP test. She also contended that the court had erred in concluding that she had been referred for the test. She maintained that the court ’ s conclusion that she herself was to blame for the fact the test was not carried out was unfounded since the case file contained no evidence in that regard. Furthermore, she claimed that the court had given no reasons for relying on the medical records used by the MADEKKI instead of the earlier copy of the medical record that she had submitted. In any event, the applicant argued that even if she had been referred for the test, the referral was already too late as on the day allegedly fixed for the test she was already in her nineteenth or twentieth week of pregnancy. She further contended that had she refused to take the test, the doctor would have made a corresponding note in the medical record. As regards her eldest son, the applicant pointed out that Dr L. had never asked her about the health of her other children and explained that her son had developed schizophrenia at the age of twelve. She insisted that there was in her view a causal link between the Dr L. ’ s failures and the birth of her child and that damages ought to be paid.", "34. On 4 April 2007 a hearing took place on 4 April 2007 before the Civil Chamber of the Supreme Court ( Augstākās tiesas Civillietu tiesu palāta ). The applicant ’ s legal representatives were unable to attend but the applicant asked the court to proceed in their absence. The applicant made submissions on her own behalf, and answered questions posed by the court. The court heard evidence from a representative of A. Hospital, who explained the system of record-keeping at A. Hospital and the loss of the applicant ’ s medical record, and from Dr L. Dr L. testified that only an amniocentesis allowed an effective diagnosis of Down ’ s syndrome. Although the risk of congenital abnormalities increased with age, the fact that the applicant was forty years old was not as such an indicator that she ought to have an amniocentesis, which carried with it the risk of miscarriage. There were no objective medical indications to justify a referral for that procedure in the applicant ’ s case. Dr L. referred to the applicant ’ s failure to disclose the condition of her eldest son and to disclose her husband ’ s alcoholism.", "35. On 17 April 2007 the Civil Chamber rejected the applicant ’ s appeal. It agreed with the first-instance court ’ s conclusion that applicant ’ s allegations concerning the alteration of her medical record had not been proven, noting that the copy of the medical record submitted by her was not certified. The court also noted the MADEKKI ’ s conclusion concerning the applicant ’ s failure to inform Dr L. of her eldest son ’ s illness, observing that the “mother ’ s passport”, which the applicant had at all times, drew attention to the importance of informing the doctor of any diseases suffered by existing children. It referred to Dr L. ’ s evidence that, had she known of the illness, she would have ordered additional tests and examinations. The court also pointed out that the Medical Treatment Law set out a duty on patients to comply with doctors ’ instructions; the applicant was accordingly under a duty to undergo the AFP test which she had been referred. The fact that there was no record in writing of her refusal to take the test was not proof of the fact that she had never been referred for it.", "36. Finally, the Court held that Dr L. could not be held responsible for the child ’ s genetic condition since no causal link could be established between the actions of Dr L. and the child ’ s condition. It also noted that:", "“The result of the AFP test ... could neither confirm nor exclude genetic abnormality of a foetus, but would serve as an indication for further examination.", "Therefore the [applicant ’ s] allegations that the results of the AFP test would have provided her [with] an opportunity to choose whether to continue with or terminate the pregnancy could not in itself serve as a basis to uphold the claim.”", "37. The only shortcoming in the applicant ’ s medical care had been the failure to ensure that the AFP test was actually carried out. The court noted that the MADEKKI had already fined Dr L. for this omission.", "38. As regards the alleged falsification of medical record no. 43, it found that, since the applicant ’ s medical record was missing at the time of her January 2002 appointment with Dr L., the latter had made her notes on a separate sheet of paper which had been added to the medical record once it had been recovered. The court noted the finding of the MADEKKI that the applicant had been referred for the AFP test and further recorded that the applicant did not dispute that she had attended an appointment with Dr L. on 15 January 2002. It referred to the decision of the police of 30 September 2005 not to institute criminal proceedings because there was no evidence that the medical record had been falsified. It therefore found that the applicant ’ s account of the reason for the differences in the two copies of her medical records had not been proven to be true.", "39. On 7 May 2007 the applicant obtained a copy of the expert report of 7 July 2006 (see paragraph 28 above).", "(c) The appeal to the Senate of the Supreme Court", "40. The applicant subsequently filed an appeal on points of law. She argued that the Civil Chamber had not assessed correctly whether the failure of Dr L. to ensure that the AFP test was carried out had infringed the applicant ’ s right to find out about any foetal abnormality. Even though the court had concluded that she had been referred for the AFP test, the judgment did not address whether the referral complied with section 41 of the Medical Treatment Law, i.e. whether she had received all the necessary information about the test (see paragraph 47 below). Further, the applicant submitted that the court should have applied section 23 of the Medical Treatment Law and insisted that any refusal of the treatment should have been in writing (see paragraph 46 below). She also submitted that the court had wrongly interpreted section 25 of the Medical Treatment Law (see paragraph 46 below) by stating that she had been obliged to carry out the AFP, as it had not taken into account the need for free and informed consent before any medical intervention. Finally, she argued that in assessing whether Dr L. ’ s actions had been wrongful, such as to give rise to damages, the court should have assessed whether the doctor had complied with the applicable rules, including the Ordinance No. 324. The court ’ s conclusions as to the lack of a causal link were not compatible with the Ordinance, since had Dr L. complied with her legal obligations, the applicant could have found out that the foetus had a genetic disease and could have availed herself of her right to have an abortion on medical grounds, thereby preventing the birth of the child. Accordingly, she maintained, the necessary causal link existed between Dr L. ’ s wrongful actions and the birth of the child with Down ’ s syndrome.", "41. The applicant also contended that there had been a number of procedural failings before the appellate court. She alleged in particular that it had not assessed her claim for maintenance; and that it had breached the rules in relation to assessment of evidence as it had uncritically accepted the testimony given by the doctor, had attached greater weight to the copy of the medical records submitted by the hospital than to the copy submitted by her, and had relied on the conclusions of the MADEKKI without itself verifying the facts.", "42. On 26 September 2007 the Senate of the Supreme Court dismissed the applicant ’ s appeal. The full text of the judgment was made available on 22 October 2007. The Senate concluded that, contrary to the applicant ’ s allegations, the appellate court had come to its conclusions about the referral for the test and the applicant ’ s failure to attend the appointment with due regard for a patient ’ s right to receive information. Section 23 of the Medical Treatment Law was not applicable to this case as the applicant had simply not shown up for the test. The Senate further noted that applicant ’ s arguments were based on the premise that she had not been referred to the test whereas the appellate court had found that a referral had been made. Her complaints of procedural flaws were rejected as unfounded", "(d) The request for reopening", "43. Meanwhile, on 1 August 2007 the applicant asked the Senate of the Supreme Court to reopen the civil proceedings on the basis of newly discovered evidence, namely the expert report of 7 July 2006 which she had recently seen for the first time (see paragraphs 28 and 39 above). On 5 December 2007 the Senate dismissed the request." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Medical Treatment Law", "44. Pursuant to section 20 of the Medical Treatment Law, a patient has the right to receive from her doctor comprehensive information regarding her diagnosis, her examination, her treatment plan, other treatment methods and her prognosis.", "45. Section 22 provides that a patient has the right to receive an assessment of the quality of the health care given in accordance with a procedure provided by law.", "46. Section 23 provides that a patient has the right to refuse, in writing, to receive medical treatment. The patient ’ s doctor is responsible for providing information on the consequences of the refusal. If a patient has agreed to follow a medical treatment plan, she is responsible for following the instructions of medical practitioners. Pursuant to section 25, a patient is obliged during treatment to comply with the instructions of medical personnel.", "47. According to Section 41 of the Law, the patient ’ s doctor should explain the medical treatment plan to her and inform her of the possible complications of any prescribed treatment or medication.", "B. Rules concerning the care of pregnant women", "48. Pursuant to Paragraph II (3) of Ordinance No. 324 concerning antenatal and prenatal care, issued by the Ministry of Welfare on 20 October 1995, medical institutions must ensure antenatal care in accordance with the provisions set out in Annex No. 1, which approved the “Antenatal programme”. The Annex provides, inter alia, that for patients older than thirty-five years old an AFP test has to be done from the sixteenth to the eighteenth week of pregnancy.", "49. Cabinet of Ministers Regulation No. 611 of 25 July 2006 provides that all pregnant women in the increased group are to be offered a nuchal translucency ultrasound from the ninth to the eleventh week of pregnancy and an AFP test and ultrasound in the second trimester.", "50. In practice, if the AFP blood test result is abnormal or if the pregnant woman belongs to the increased risk group, the woman is referred to a geneticist for diagnostic test. Only an amniocentesis can predict with a high degree of accuracy the presence of Down ’ s syndrome. The test is generally only offered to those with a significant risk of genetic abnormality in the foetus, since amniocentesis itself carries risks to the baby and the mother. Pregnant women can request a referral to a geneticist or apply to one directly.", "C. The Statute of the MADEKKI", "51. Cabinet of Ministers Regulation No. 391 of 23 November 1999 sets out the MADEKKI ’ s statute. It provides, inter alia, that the main functions of the MADEKKI are to control and supervise the professional quality of healthcare in medical institutions; and to protect patients ’ interests by examining complaints. The MADEKKI has the right to sanction, by way of administrative fine, those at fault where violations of healthcare in medical institutions have been established.", "D. Ordinance No. 393 on keeping medical and registrations documentation records, issued by the Ministry of Welfare on 4 December 1997", "52. Ordinance No. 393 provided that entries in the medical record should be made as soon as possible after the patient ’ s examination.", "E. The right to claim compensation", "1. The Constitution", "53. Article 92 of the Constitution ( Satversme ) provides that everyone has a right to adequate compensation in the event of an unlawful interference with his or her rights.", "2. The Civil Law", "54. Article 1635 of the Civil Law ( Civillikums ) stipulates that any infringement of rights or unlawful activity per se shall give the person who has suffered damage the right to claim compensation from the wrongdoer, to the extent that she may be held liable for such act or failure. Under Article 1779 of the Civil Law, everyone has a duty to compensate for losses she has caused through his or her activities or failure to act.", "3. Relevant case-law", "55. In a judgment of 29 April 2009 in case no. SKC-12/2009, the Senate of the Supreme Court confirmed that Article 92 of the Constitution provided for a general entitlement to compensation in the case of an infringement of a person ’ s human rights. It was applicable directly in cases where Article 1635 of the Civil Law did not apply.", "56. In a judgment of 16 December 2010 the Civil Chamber found a violation of various provisions of the Medical Treatment Law and partly upheld the plaintiff ’ s claim for compensation for non-pecuniary damage on the basis of Article 92 of the Constitution.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "57. The applicant complained that, owing to the negligence of Dr L., she was denied adequate and timely medical care in the form of an antenatal screening test which would have indicated the risk of her foetus having a genetic disorder and which would have allowed her to choose whether to continue the pregnancy. She also complained that the national courts, by wrongly interpreting the Medical Treatment Law, failed to establish an infringement of her right to respect for her private life in this regard. She relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "58. The Government contested that argument.", "A. Admissibility", "1. Alleged failure to comply with the six-month time-limit", "59. The Government argued that the complaint should be declared inadmissible for failure to comply with the six-month time-limit set out in Article 35 § 1 of the Convention. They noted that the full judgment of the Senate of the Supreme Court had been provided on 22 October 2007 but that the application had not been received by the Court until 5 May 2008.", "60. It is clear from the postmark on the envelope that the application was posted on 21 April 2008. The applicant has further provided a postal receipt with the same date clearly marked. The Government ’ s objection is accordingly rejected.", "2. Applicability of Article 8", "61. The applicant referred to Ternovszky v. Hungary, no. 67545/09, § 22, 14 December 2010, and contended that reproductive rights formed part of her “private life” protected under Article 8. In her view, there was an issue in her case of respect and protection of her personal autonomy as well as an issue of whether she was able to exercise her right to become, or not to become, a parent.", "62. The Government accepted that the present application touched upon the applicant ’ s private life.", "63. “Private life” is a broad concept, encompassing the right to personal autonomy and personal development ( Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III; R.R. v. Poland, no. 27617/04, § 180, ECHR 2011 (extracts) ). Individuals ’ involvement in the choice of medical care provided to them and consent to such treatment fall within the scope of Article 8 of the Convention ( Trocellier v. France; and Spyra and Kranczkowski v. Poland, no. 19764/07, § 70, 25 September 2012 ). The Court has previously found that the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy and that, as a consequence, legislation regulating the interruption of pregnancy touches upon the sphere of private life (see R.R., cited above, § 181, and the references therein). However, the present case does not directly concern the applicant ’ s decision whether to continue or not her pregnancy but rather the questions whether the necessary information was provided to her and whether her medical care complied with domestic law. In this respect, the Court ’ s case-law confirms that where a complaint concerns the exercise of the right of effective access to information concerning health, it is linked to private and family life within the meaning of Article 8 ( see K.H. and Others v. Slovakia, no. 32881/04, § 44, ECHR 2009 (extracts), citing, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X. See also Guerra and Others v. Italy, 19 February 1998, § 60, Reports of Judgments and Decisions 1998 ‑ I ).", "64. The Court is accordingly satisfied that the provision to the applicant of appropriate information and medical care during her pregnancy as required under Latvian law by Ordinance No. 324 and the Medical Treatment Law fell within the scope of her “ private life ” within the meaning of Article 8 of the Convention.", "3. Conclusion on admissibility", "65. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "66. The applicant complained about the alleged negligence of Dr L. which she claimed had prevented her from undergoing an AFP test; and the failure of the national courts to uphold her civil claim.", "67. She emphasised that there was no dispute that under Latvian law, because of her age, she was to be treated as a patient with a high risk pregnancy but claimed that, contrary to the requirements of Ordinance No. 324, she was not registered in the high risk group. She argued that the medical professional responsible for prenatal care in her case had an obligation to identify the medical risks. She also contended that she had the right to be informed about the necessity and the possible advantages of the AFP test before the sixteenth week of pregnancy in order to enable her to decide whether to undergo the test between the sixteenth and eighteenth weeks. These requirements, she claimed, were set out in section 41 of the Medical Treatment Law and Ordinance No. 324. She contended that Dr L. should have informed her about the nature of the AFP test as well as other methods for detecting foetal abnormalities, including ultrasound and amniocentesis, and about the possible effects of these procedures. However, Dr L. had failed in these duties, preventing the applicant from enjoying her legal rights during her antenatal care and regulating her conduct accordingly. Although it was true that a patient could refuse treatment, there was no written signed record, as required by Article 23 of the Medical Treatment Law, of the applicant ’ s alleged refusal to undergo the AFP test. The applicant further emphasised that Dr L. was sanctioned by the national authorities, who found a breach of national law.", "68. In light of the expert evidence that medical record no. 43 had been supplemented over an extended period of time (see paragraph 28 above), the applicant invited the Court to conclude that the referral had been made in the nineteenth week of pregnancy, which was already outside the time ‑ period stipulated in Ordinance No. 324; that the note concerning the referral was not entered into the record on 15 January 2002; and that her claim that medical record no. 43 had been amended after she had first copied the file in June 2002 was made out.", "69. The applicant argued that where choices related to the exercise of a right to respect for private life occurred in a legally regulated area, the State was obliged to provide adequate legal protection in the regulatory scheme put in place, notably by ensuring that the law was accessible and foreseeable, enabling individuals to regulate their conduct accordingly (citing Ternovszky, cited above, § 24). However, she claimed that she had not been provided with adequate legal protection. Neither the MADEKKI nor the national courts had investigated the case properly in order to establish the relevant facts and determine whether Dr L. had fulfilled her duties according to national law. Further, while Dr L. had been invited to give evidence before the Regional Court and on appeal, the applicant ’ s request to give evidence had been denied. She had therefore not been questioned on the crucial facts of the case by the courts or by the MADEKKI.", "70. The applicant refuted any suggestion that she bore co-responsibility for not obtaining a geneticist consultation on the basis that she had failed to inform Dr L. of her eldest son ’ s illness or because she had failed to show up for the AFP test. She contested the statement that her eldest son had a congenital genetic disorder, arguing that schizophrenia was not genetic even though, for unknown reasons, the MADEKKI, the Civil Chamber and the Government had wrongly stated that it was. She had no reason to suspect that her eldest son ’ s condition was relevant to her pregnancy. Schizophrenia of existing children was not considered to be a prenatal genetic risk factor according to the factors published by the Ministry of Health and the State Centre of Medical Genetics. She had made this argument to the Civil Chamber but it had been rejected.", "71. Finally, she pointed out that the Civil Chamber had referred to the police decision of 30 September 2005 not to initiate criminal proceedings, and not the 12 September 2006 prescription decision. She argued that the civil judgment was therefore based on invalid grounds. Again, she had raised this argument before the Senate but it had been rejected.", "(b) The Government", "72. The Government noted that the applicant ’ s complaint consisted of two parts: the alleged denial of the right to have an AFP test and an abortion; and the misapplication by the domestic courts of the Medical Treatment Law.", "73. In respect of the first complaint, the Government emphasised that the Convention did not guarantee as such a right to specific medical services. It therefore could not be alleged that Article 8 conferred a right to a specific prenatal examination, in particular given the differing policies at European level concerning the screening for Down ’ s syndrome. However, the Government accepted that once a State provided an entitlement to a specific medical examination it was required to devise a legal framework which was coherent and allowed different interests to be taken into account. At the Government Agent ’ s request, the Ministry of Health provided a letter for the purposes of the Government ’ s submissions in this case which has been provided to the Court and confirms that any pregnant woman above the age of thirty-five is automatically considered to be in the pregnancy risk group. The Government pointed out that the applicant had not disputed that the domestic regulations in force at the relevant time entitled her to an AFP test. Further procedures were available depending on the results of the AFP test. It was also open to the applicant immediately to request a referral for any further examinations. However, none of the prenatal examinations were mandatory and the applicant had the right to reject any or all of them at any time. She did not allege that she had requested a referral for the AFP test or any other procedure and been refused. Nor did she claim that there was a lack of effective mechanisms enabling her to seek access to prenatal examinations. The Government emphasised that the circumstances of the applicant ’ s case were far removed from those in R.R., cited above, where the applicant had persistently but unsuccessfully sought access to prenatal tests and an abortion. They Government further argued that had the applicant had any complaints or concerns about her antenatal care, she could have complained to the MADEKKI at any time during her pregnancy. However, she had not exercised this right.", "74. The Government also submitted that the applicant had contributed to the fact that she had not been referred for genetic counselling or examinations to screen for Down ’ s syndrome. The results of the AFP test would have given no firm answers but would merely have served as an indicator of the need for further examination. Prior genetic problems were even stronger indicators for referral for risky genetic examinations. As the MADEKKI had found, had the applicant informed Dr L. of her eldest son ’ s illness, she would have been referred for further examination during her first trimester. She had therefore failed in the diligence expected of her. Since the applicant had been pregnant before, she should have recognised the risks and the consequences of non-disclosure.", "75. As regards the applicant ’ s claim that she was not referred for the AFP test and that her records had been falsified, the Government emphasised that this allegation had not been upheld by the investigative authorities or the national courts. According to the expert report of July 2006 (see paragraph 28 above), no falsification had been established. The report ’ s conclusion that the entries made in the medical records were recorded over an extended period of time confirmed the evidence of Dr L. that the record was continuously updated with new information. Although the expert report was not put before the Civil Chamber of the Supreme Court when it decided the applicant ’ s case in April 2007, the report did not contain any information that could overturn the conclusions reached by the appellate court since it did not establish that the entry had been falsified. No witness was able to testify to the authenticity of the copy of the medical record made by the applicant in June 2002. The domestic courts had concluded that there was no reason to doubt that the applicant had been referred for the AFP test by Dr L., as recorded in medical record no. 43. As a result, the applicant could not arguably claim that she had not been offered prenatal examinations as prescribed in national law.", "76. The Government further argued that any positive obligation could be satisfied if a civil, administrative or disciplinary remedy was available. The prosecution of those allegedly responsible was not required under Article 8. Dr L. had received an administrative punishment from the MADEKKI for failing to ensure that the applicant had the AFP test. This administrative sanction was adequate to satisfy any positive obligation to ensure effective respect for private life.", "77. In respect of the second part of the applicant ’ s Article 8 complaint, the Government emphasised that it was primarily for the national authorities to interpret and apply national law. In the applicant ’ s case, the first instance and appeal courts examined the applicant ’ s arguments in sufficient detail, by reference to the specific provisions of the Medical Treatment Law invoked by her. The matter was also examined by the Senate of the Supreme Court. There was no scope for criticism of the courts ’ approach or their conclusions.", "78. The Government invited the Court to find no violation of Article 8 in the applicant ’ s case.", "(c) The third parties", "(i) Association des Paralysés de France ( “ APF ” )", "79. The APF ’ s Comité d ’ animation de la Réflexion éthique invited the Court to consider the applicant ’ s case in light of the following realities: each human being has an equal right to life and an equal dignity; parents have the right to choose, within the framework of the law, an abortion on the basis of comprehensive information; society has an obligation towards its most fragile members; a court judgment cannot replace the obligations of society; and there should be no confusion or amalgamation of the ideas of a “medical error” and “the fact of being born”.", "80. The APF also emphasised that those living with disabilities wished to be seen not merely from the medical perspective but as people enjoying the right to full participation in society.", "(ii) European Centre for Law and Justice ( “ ECLJ ” )", "81. The ECLJ were of the view that the present case essentially concerned the question whether the Convention guaranteed a right to eugenics for parents as regards screening and elimination of sick or disabled foetuses and, if so, what was the extent of the State ’ s positive obligation in this regard. While the Convention had been interpreted to tolerate the practice of abortion, the ECLJ argued that certain limits had to be placed on this practice.", "82. The ECLJ pointed out that there was no right to abortion in the Convention and contended that tolerance of abortion should essentially be viewed as a limited derogation from the positive obligation to protect life. Even where a State allowed abortion, it remained subject to the positive obligation to protect life and to strike a fair balance between competing interests. Once a State permitted abortion, it was obliged to put in place a legal framework that was coherent and that allowed all the different legitimate interests to be adequately taken into account.", "83. According to the ECLJ, screening for genetic diseases in order to eliminate the foetus rather than cure the diseases constituted a systemic incitement to discrimination and violence on the grounds of disability. The resultant stigma was a violation of the rights of disabled people. There was social pressure and pressure from the medical profession systematically to eliminate disabled unborn children, and such pressures imposed a strong constraint on parents ’ freedom to choose to keep a disabled child. Since screening for Down ’ s syndrome had no therapeutic purpose, it would be wrong to apply the legal principles relevant to medical treatment which had a beneficial impact.", "2. The Court ’ s assessment", "84. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference must be justified in terms of Article 8 § 2, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. In addition, the Contracting States are under a positive obligation to secure to persons within their jurisdiction effective respect for their rights under Article 8. This positive obligation requires States to put in place domestic legislation that provides a measure of legal protection against arbitrary interferences by public authorities (see V.C. v. Slovakia, no. 18968/07, §§ 139-14 0, ECHR 2011 (extracts) ).", "85. The applicant did not argue before this Court that the domestic framework itself was inadequate to ensure an appropriate level of care and information during her pregnancy. It is noteworthy that Ordinance No. 324 clearly provides that all women over the age of thirty-five should have an AFP test and that the Medical Treatment Law imposes certain requirements concerning the provision of information (see paragraphs 44 - 48 and 73 above). Rather, the applicant complained that Dr L. had been negligent because she had failed to comply with the domestic regulations in place and that the civil courts had not properly examined her claim.", "86. With regard to the substantive aspect of the complaint, the Court reiterates that the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity. This is particularly important when the complaint concerns an area where the State enjoys a significant margin of appreciation (see Koch v. Germany, no. 497/09, § 69-70, 19 July 2012 ). In these circumstances, the Court considers it appropriate to address first the procedural aspect of the applicant ’ s complaint, namely the question whether her rights under Article 8 of the Convention were sufficiently respected in the context of the civil proceedings in which she sought compensation, inter alia, for the alleged failure of Dr L. to comply with domestic law (see paragraphs 63 - 64 above). The Government ’ s submission that the administrative sanction imposed by the MADEKKI was adequate to satisfy any positive obligation arising in respect of Dr L. ’ s alleged negligence (see paragraph 76 above) has no relevance to the Court ’ s examination of this procedural question.", "87. Before the Regional Court, the applicant argued that Dr L. had been negligent because she had failed to identify that the applicant belonged to a risk group on account of her age; had failed to make a referral for the AFP test; and had modified medical records to conceal the failure (see paragraph 30 above). Before the Civil Chamber and the Senate of the Supreme Court, she maintained her complaints and further alleged failings in the manner in which the Regional Court had examined her claim (see paragraphs 33 and 40 - 41 above). In the proceedings before the domestic courts she invoked a number of sections of the Medical Treatment Law. Several aspects of the domestic proceedings give rise to concern.", "88. First, the documents submitted to the Court in these proceedings, and in particular the judgments of the domestic courts, reveal a number of important factual discrepancies. Thus the Regional Court found that the applicant was not in a risk category solely on account of her age (see paragraph 32 above) but did not explain how this finding was to be reconciled with the provisions of Ordinance No. 324 (see paragraph 48 above) or refer to any other official document supporting its findings on this matter. The court ’ s finding is also at odds with the information provided by the Ministry of Health to the Government Agent for the purposes of the present proceedings (see paragraph 73 above). Although the applicant argued before the Civil Chamber that the Regional Court had erred, the Civil Chamber does not appear to have addressed the point in its judgment. It also appears from the parties ’ submissions that there is a lack of clarity as to the date of commencement of the applicant ’ s pregnancy (see paragraph 7 above). Although medical record no. 43 indicated that she had been referred for an AFP test in her eighteenth week (see paragraph 8 above), Dr L. later told the police that she had been referred in her seventeenth week (see paragraph 20 above), while the applicant now contends that she was actually in her nineteenth week at the time of the referral (see paragraph 68 above). Assuming that the medical record was correct, the applicant ’ s appointment for the AFP test, scheduled for six days after the referral, appears to have been in the nineteenth week, which was outside the period stipulated in Ordinance No. 324 (the Ordinance required the test to be undertaken between the sixteenth and eighteenth weeks – see paragraph 48 above). There is no evidence that this anomaly, or the inconsistent evidence of Dr L. to the police, was investigated by the domestic courts.", "89. It is also significant that, in the context of the criminal investigation, it had come to light that the applicant ’ s medical record had disappeared for a number of months (see paragraph 20 and 23 above). The disappearance of the medical record does not appear to have been investigated by Dr L. or A. Hospital at the time, even though the inability of Dr L. to make her notes promptly was arguably incompatible with the terms of Ordinance No. 393 on the keeping of medical records (see paragraph 52 above). There is also no evidence that the disappearance of the applicant ’ s medical record led to a review of her case and a decision to repeat all necessary examinations and tests, despite Dr L. ’ s evidence to the police that such steps had to be taken when a file went missing (see paragraph 20 above). Again, while it seems that there was some discussion of the loss of the records at the hearing before the Civil Chamber (see paragraph 34 above), the subsequent steps taken by Dr L. and A. Hospital do not appear to have been considered when assessing whether Dr L. had been negligent in the antenatal care accorded to the applicant.", "90. Further, even accepting the MADEKKI ’ s finding that the applicant was referred for an AFP test, the documents submitted to the Court show no explanation of why, following the applicant ’ s failure to attend the appointment, the matter of the AFP test and any potential risk of congenital abnormality on account of the applicant ’ s age were not later followed up by Dr L. The applicant attended subsequent appointments with Dr L. (see paragraph 10 above) and it appears logical that it would have come to light during the appointment following the missed AFP test that the test had not taken place. In these circumstances, one would expect to find a relevant reference in the applicant ’ s medical records to a discussion with her and the provision of information concerning possible further tests. However, neither the Government nor the domestic courts have drawn attention to any such entry in the applicant ’ s medical notes. It appears, therefore, that no such discussion ever took place.", "91. It is further noteworthy that Dr L. was sanctioned by the MADEKKI for her failure to ensure that the applicant had the AFP test (see paragraph 16 above). According to the MADEKKI statute, the MADEKKI can impose an administrative fine where it finds that a violation of healthcare has taken place (see paragraph 51 above). Pursuant to Article 92 of the Constitution and Article 1635 of the Civil Law, infringements of individuals ’ rights give rise to a right to adequate compensation (see paragraphs 53 - 54 above). Domestic case-law demonstrates that infringements of the Medical Treatment Law can lead to payment of compensation (see paragraph 55 - 56 above). However, there is no evidence in the applicant ’ s case that the civil courts considered whether, in light of the infringement of the applicant ’ s rights which had been established by the MADEKKI and in light of the alleged infringements of her right to information under the Medical Treatment Law (see paragraphs 30 and 40 above), she was entitled to payment of non-pecuniary damages. This is a wholly separate question to the one examined by the courts as to the existence of a causal link between the failure to ensure that the applicant had the test and the birth of the child from Down ’ s syndrome (see paragraphs 32 and 36 above).", "92. Finally, it appears from the applicant ’ s submissions, which were not contested by the Government, that the Regional Court refused to hear her as a witness, while at the same time it took evidence from Dr L. (see paragraphs 31 and 69 above). While the taking of evidence is generally a matter for domestic courts, it is nonetheless surprising that despite the various factual inconsistencies identified above (see paragraph 88 ) the applicant ’ s evidence was considered unnecessary. It appears that no reasons were provided for the court ’ s refusal to allow the applicant to give evidence.", "93. Having regard to the principle of subsidiarity, the Court considers that it was primarily for the domestic courts to investigate the inconsistencies identified above, in proceedings affording to the applicant the necessary procedural safeguards, and to decide whether the antenatal medical care offered to the applicant by Dr L. was compatible with her rights under Article 8 of the Convention in all the circumstances of the case. Accordingly, in the circumstances of the present case, it is appropriate for the Court to limit itself to examining the procedural aspect of Article 8 (see, mutatis mutandis, Koch, cited above, § 71).", "94. In conclusion, taking account of the matters outlined above, the domestic courts ’ approach to the applicant ’ s claim discloses the appearance of arbitrariness. The cumulative effect of the failings identified was that the domestic courts did not properly examine the applicant ’ s claim that she had not received medical care and information in accordance with domestic law in a manner sufficient to ensure the protection of her interests. There has accordingly been a violation of Article 8 of the Convention in its procedural aspect.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "95. The applicant also complained under Article 6 of the Convention that she suffered an inequality of arms during the civil proceedings because the courts, without sufficient reasoning, dismissed her request that they order a forensic assessment of a piece of evidence; that the decision of the Senate of the Supreme Court to dismiss her application to reopen the civil proceedings was not subject to appeal; that she was deprived of access to a court because she sustained considerable financial losses as a result of the obligation to pay the defendant ’ s legal costs; and that the investigation of her complaint regarding the alleged falsification of her medical records was excessively lengthy. She further complained under Article 8 of the Convention of a violation of the protection of her personal data.", "96. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "97. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "98. The applicant claimed 253,042 euros (EUR) in respect of pecuniary damage. This sum was composed of EUR 48,748 in lost income, since she is unable to work as a result of the need to take care of her child; and EUR 204,294 by way of an allowance for her child. She also claimed EUR 20,000 in respect of non-pecuniary damage.", "99. The Government argued that the applicant had failed to show that the sums claimed were related to and directly caused by any failure to provide appropriate antenatal care in the form of the AFP test. There was therefore no causal link between the pecuniary damage claimed and the violation of Article 8 in the present case. As to the applicant ’ s claim for non-pecuniary damage, the Government considered it to be unfounded and exorbitant. They invited the Court to conclude that the finding of a violation constituted adequate compensation.", "100. The Court has found a violation of the Convention on account of the manner in which the applicant ’ s civil claim in negligence was treated by the domestic courts (see paragraph 94 above). It therefore does not discern any causal link between the violation found and the claim in respect of pecuniary damage. Accordingly, no award can be made under this head.", "101. However, the Court accepts that the manner in which the applicant was treated in the domestic courts is likely to have provoked feelings of distress and frustration which cannot be compensated by the mere finding of a violation Having regard to the circumstances of the case seen as a whole and deciding on equitable basis, the Court awards the applicant EUR 5 ,000.", "B. Costs and expenses", "102. The applicant claimed EUR 1,71 3.60 in respect of the costs and expenses incurred before the domestic courts in the civil proceedings; EUR 428.40 for the costs and expenses incurred in the criminal proceedings; and EUR 1,491 for the cost of the proceedings before this Court. She submitted two invoices in respect of her legal representation and a copy of the agreement on legal services concluded. The applicant also claimed EUR 4,500 in respect of the legal expenses which were awarded against her in the civil proceedings. She submitted a copy of the judgment of the Civil Chamber ordering the payment of the legal costs and copies of her bank statements showing monthly payments to A. Hospital.", "103. The Government argued that costs incurred in the context of the criminal proceedings fell outside the scope of the present application. They further argued that under the agreement between the applicant and her legal advisers, she was obliged to pay them twenty per cent of any award received. Since no award had been made by the domestic courts, no legal expenses were payable. In so far as the agreement applied to this Court, she should receive a maximum of twenty per cent of any non-pecuniary damage awarded in respect of her legal fees. Finally, the Government argued that no documents had been submitted to show that the amounts in the invoices or the costs alleged to have been ordered to be paid to the defendants in the civil proceedings had actually been incurred. They therefore invited the Court to make no award under this head.", "104. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Even if the applicant has not yet actually paid part of the legal fees and expenses, if she is bound to pay them pursuant to a contractual obligation then they were “actually incurred” (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009; and L.H. v. Latvia, no. 52019/07, 29 April 2014 ).", "105. In the present case, regard being had to the documents in its possession and in particular to the terms of the legal services agreement which obliged the applicant to pay legal costs amounting to twenty per cent of any financial award made in her favour, the Court makes no award in respect of the domestic proceedings. However, it finds it appropriate to award in full the claim made in respect of the proceedings before it for the sum of EUR 1,491, less the sum of EUR 850 awarded to the applicant by the Council of Europe by way of legal aid. In respect of the defence costs of EUR 4,500 claimed by the applicant, it is clear from the Civil Chamber judgment that the applicant is bound to pay these costs. The Court accordingly awards the amount claimed in full.", "C. Default interest", "106. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants were born in 1968 and 1966 respectively and live in Ștefan Vodă. They are husband and wife.", "A. The first applicant ’ s sterilisation and its effects", "7. On 4 May 2000 the first applicant was giving birth to a child. The head of the obstetrics and gynaecology department of the Ştefan-Vodă regional hospital, Mr B., performed a Caesarean section on her. During the procedure he removed her ovaries and Fallopian tubes, without obtaining her permission. As a result of the operation, the first applicant, who was thirty-two at the time, suffered an early menopause.", "8. Since 2001 the first applicant has been having medical treatment designed to counteract the effects of the early menopause, including hormone replacement therapy. According to her doctors, she has to continue such treatment until she is between fifty-two and fifty-five years old, after which further treatment will be required.", "9. According to a neurology report dated 5 November 2001, the first applicant was suffering from astheno-depressive syndrome and osteoporosis. On 18 February 2002 the doctors found that the first applicant experienced hot flushes, neurosis and frequent heart palpitations. On 8 May 2002 she was diagnosed with asthenic neurosis.", "10. According to the results of an examination carried out by a medical panel on 18 March 2003, the removal of the first applicant ’ s ovaries and Fallopian tubes had been unnecessary and the surgery had resulted in her being sterilised.", "11. On 26 July 2006 a psychiatrist and a psychologist established that the first applicant was suffering from long-term psychological problems and that she continued to show signs of post-traumatic stress disorder.", "B. Criminal proceedings against the doctor", "12. On 15 March 2005 the Căuşeni District Court convicted B. of medical negligence which had caused severe damage to the health and bodily integrity of the victim. He was sentenced to six months ’ imprisonment, suspended for one year. The court referred to medical reports and found, inter alia, that B. had failed to inform the applicants of the sterilisation until ten days after the event. The first applicant ’ s ovaries could have been preserved, but B. had failed to do so.", "13. On 11 May 2005 the Bender Court of Appeal upheld that judgment.", "14. On 2 August 2005 the Supreme Court of Justice quashed the lower courts ’ judgments and adopted its own judgment, finding B. guilty but absolving him of criminal responsibility because the limitation period for sentencing him had expired.", "C. Civil proceedings initiated by the applicants", "15. On an unknown date in March 2007 the applicants started civil proceedings against the Ştefan-Vodă regional hospital and B., claiming compensation for the damage caused, comprising 9,909 Moldovan lei (MDL – approximately 587 euros (EUR) at the time) for pecuniary damage, MDL 1 million (EUR 59,7 40 ) for the first applicant and MDL 100,000 (EUR 5,97 4 ) for the second applicant in respect of non-pecuniary damage, and MDL 2,700 (EUR 160) for legal costs. They also sought a court order for the hospital to provide the first applicant with free treatment for as long as her condition required, as prescribed by her doctors. The applicants ’ lawyer provided detailed explanations and evidence in support of each of these claims, including various medical reports, the cost of medical consultations, laboratory analyses and treatment undertaken by the first applicant, and the findings of the criminal courts in the case against B.", "16. On 18 September 2007 the Căuşeni District Court accepted the applicants ’ claims in part, referring to the findings of the criminal courts and the medical evidence in the file. It ordered the hospital to provide the first applicant with the requisite medication until the year 2020. The court also awarded MDL 1,119 (EUR 69) to the applicants for pecuniary damage, as well as MDL 5,000 (EUR 306 ) to the first applicant and MDL 1,000 (EUR 61) to the second applicant in respect of non-pecuniary damage. In this latter connection, the court found that B. had voluntarily compensated the applicants for the pecuniary losses they had incurred and that awarding sums as large as those claimed by the applicants would have seriously affected the activities of the (State-owned) hospital.", "17. On 24 January 2008 the Chişinău Court of Appeal partly quashed that judgment, increasing the award for non-pecuniary damage to the first applicant to MDL 10,000 (EUR 607) plus MDL 1,237 (EUR 75) for costs. The court observed that, under the applicable legal provisions, the size of an award of compensation for non-pecuniary damage was to be determined by taking into consideration the circumstances of the case, including the nature and seriousness of suffering caused to the victim, the degree of guilt of the person who had caused the suffering, and the degree to which such compensation could bring about just satisfaction for the victim. The court referred to the findings of the criminal courts in the case against B., as well as the first applicant ’ s medical reports (see paragraph 10 above).", "18. The applicants lodged an appeal on points of law, arguing inter alia that the lower courts had not given sufficient reasons for making such a nominal award, which had not offered them redress for the violation of their rights. They referred to the various medical reports confirming that, besides the long-lasting psychological effect on the first applicant resulting from being permanently sterilised without her knowledge or consent, she continued to suffer from health problems which required constant medical treatment.", "19. In a final judgment of 24 September 2008 the Supreme Court of Justice upheld the judgment of 24 January 2008, essentially repeating the arguments of the lower court.", "20. The award in the applicants ’ favour was enforced in March 2009." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "21. In their initial application the applicants complained of a breach of Article 6 § 1 of the Convention owing to the insufficient reasons given by the courts in making the award for compensation and the excessive length of the enforcement proceedings. However, in their subsequent observations they asked the Court not to proceed with the examination of this complaint.", "22. The Court therefore sees no reason to continue with the examination of this complaint.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "23. The applicants complained that their rights protected under Article 8 of the Convention had been breached as a result of the first applicant ’ s sterilisation and the nominal amount of compensation awarded to them. Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "24. The Court observes that, although the applicants alleged that the treatment endured by the first applicant also gave rise to an interference with the second applicant ’ s right to respect for his family life, it considers that it is only required to examine the issues raised from the standpoint of the first applicant ’ s right to respect for her physical integrity, having regard, of course, to the second applicant ’ s role as her husband (see, mutatis mutandis, Glass v. the United Kingdom, no. 61827/00, § 72, ECHR 2004 ‑ II ).", "25. It also notes that the hospital in which doctor B. carried out the surgical procedure on the first applicant was owned by the State and that he was effectively a State employee. It has already found that the acts and omissions of medical staff at public health institutions are capable of engaging the responsibility of respondent States under the Convention (see Glass, cited above, § 71).", "26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "27. The applicants referred firstly to the fact that the domestic courts had established medical negligence in respect of the first applicant. There had thus been a very serious interference with her physical and psychological integrity, as confirmed by the domestic judgments. However, the finding that their rights had been breached was not sufficient to take away the applicants ’ status as victims of a violation of Article 8 of the Convention and the compensation awarded was far from being just or in line with comparable Article 8 cases examined by the Court.", "28. The Government submitted that the applicants had failed to prove any non-pecuniary damage beyond that for which the domestic courts had already awarded compensation. In their submissions to the domestic courts the applicants had never referred to any case-law of the European Court to prove that the award needed to be increased. The Government argued that the present case did not differ in any significant manner from that of Pentiacova and Others v. Moldova ((dec.), no. 14462/03, ECHR 2005-I ), in which the Court had found no violation of Article 8 of the Convention in respect of the State ’ s insufficient funding of haemodialysis.", "2. The Court ’ s assessment", "29. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, inter alia, the physical and psychological integrity of a person ( see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91, and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). In particular, administering medical treatment contrary to the wishes of a patient will interfere with his or her rights under Article 8 of the Convention (see Glass, cited above, § 70 ).", "30. In the present case, the domestic courts found a breach of the first applicant ’ s rights. Even though the courts did not expressly refer to Article 8 of the Convention, they established that there had been a serious interference with the first applicant ’ s physical and psychological integrity in the absence of her knowledge or consent (see paragraphs 12 - 14 and 16 - 19 above).", "31. The object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 174, ECHR 2009 ). In the circumstances of the present case, where the domestic courts have examined the issues and found, in essence, a violation of Article 8 of the Convention, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national courts had misinterpreted or misapplied the relevant legal principles or reached a conclusion which was manifestly unreasonable ( ibid., § 174). That is clearly not the case here.", "32. Therefore, the only issue which remains to be determined is the amount of compensation. The domestic courts awarded the first applicant the equivalent of EUR 607 in respect of non-pecuniary damage caused, in addition to EUR 75 for costs and an order against the hospital requiring it to provide her with medication until 2020 (see paragraph 16 above). This is considerably below the minimum level of compensation generally awarded by the Court in cases in which it has found a violation of Article 8 (see, for example, Codarcea v. Romania, no. 31675/04, § 114, 2 June 2009, where the Court awarded the applicant EUR 20,000 ). The devastating effect on the first applicant from having lost her ability to reproduce and from the ensuing long-term health problems make this a particularly serious interference with her rights under Article 8 of the Convention, requiring sufficient just satisfaction.", "33. Moreover, while citing the general criteria listed in the relevant legal provisions, the domestic courts did not specify how these criteria applied to the first applicant ’ s case or give any particular reason for making the award in the amount of EUR 607. The only exception was the first-instance court ’ s judgment, according to which a higher award would have undermined the hospital ’ s ability to continue to operate as a public health institution. In the Court ’ s view, the latter argument is unacceptable, given that the State owned that hospital and was liable to cover whatever expenses it generated.", "34. The Court is unable to accept the Government ’ s argument that the case cannot be distinguished from Pentiacova and Others ( cited above ). In that case the Court found that the respondent State was unable to provide full medical treatment and had to distribute what little funding was available so as to provide as wide a range of medical assistance as possible to the population. The treatment requested by the applicants in that case involved substantial sums of money over a long period of time, unlike the present case, which involved a one- off payment. Moreover, the State could claim at least partial reimbursement of the expenses from B., the doctor found guilty of medical negligence. The State could also have made professional negligence insurance mandatory at medical institutions in order to be sufficiently covered to be able to pay victims (see, mutatis mutandis, Codarcea, cited above, § 107 ).", "35. In the light of the foregoing, the Court considers that the first applicant has not lost her victim status and that there has been a violation of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "36. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "37. In respect of non- pecuniary damage, the applicants claimed EUR 60,000 and EUR 6,000 for the first and second applicants respectively.", "38. The Government considered that the first applicant had not proved that there was a causal link between any damage allegedly caused to her and the compensation claimed. In any event, the amount claimed was excessive and should not exceed EUR 10,000, as awarded by the Court in Glass (cited above, § 87).", "39. In the light of the particularly serious effect on the first applicant ’ s physical and psychological well-being and on her family life with the second applicant, the Court awards the applicants jointly EUR 12,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "40. The applicants also claimed EUR 2,800 for the costs and expenses incurred before the Court. They submitted an itemised timesheet in respect of their lawyer ’ s work ( thirty-five hours at an hourly rate of EUR 80).", "41. The Government considered that both the number of hours worked on the case and the hourly rate charged by the lawyer had been excessive.", "42. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.", "C. Default interest", "43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1972 and lives in Covasna.", "A. Background information", "7. The applicant, a nurse by profession, fell pregnant in January 2002. The development of her pregnancy was monitored by Dr P.C., a gynaecologist working in the Covasna Town Hospital, the same hospital as the applicant.", "8. While she was in the sixteenth week of pregnancy, the foetus was diagnosed with hydrocephalus.", "9. Following a consultation with her doctor, it was decided that the pregnancy should be interrupted.", "10. On 13 May 2002 she was admitted to the Covasna Town Hospital. On the first day of admission she was put on a drip and medication was infused in order to induce abortion, but to no avail. The next day, concentrated glucose was injected into her stomach with the same purpose of inducing abortion. After the injection, the foetus stopped moving. On 15 May 2002, around midnight, she began to have a fever (39 degrees) and shivers, which lasted until the morning. She was not seen by a doctor during this time. She was only given painkillers.", "In the morning, while she was still in bed in the ward and without being taken to the surgery room, she expelled the foetus. She then started bleeding profusely. Despite the fact that two curettages were performed on her, the bleeding would not stop and she was diagnosed with disseminated intravascular coagulation (DIC). The doctor then decided to transfer her urgently to the County Hospital, located in Sfântu Gheorghe, some thirty kilometres away. Although she was in a critical condition, during the transfer she was assisted only by a nurse.", "11. When she arrived at the County Hospital, the doctors there had to proceed with a total hysterectomy and bilateral adnexectomy in order to save her life.", "B. Complaint with the College of Doctors", "12. After consulting several specialists, the applicant formed the opinion that Dr P.C. had committed serious medical errors in treating her.", "13. She therefore lodged a complaint with the Covasna County College of Doctors. The County Counsel of the College of Doctors delegated the assessment of the matter to a doctor from Sfântu Gheorghe County Hospital.", "14. On 18 September 2002 the College of Doctors reached the following conclusions :", "(i) the termination of pregnancy had been correctly indicated;", "(ii) as regards the injection of hyperbaric glucose solution, it was found that it could be done in two ways: vaginal or abdominal. The latter procedure ensured better hygiene conditions, but it required a very precise localisation of the placenta by ultrasound scans; these scans had not been found in the applicant ’ s medical records. It was also recommended that the injection of the substance be monitored by ultrasound. This method required the written consent of the patient, after prior notification of the possible risks and complications. The medical records did not include a consent signature or information as to the clinical investigation of any abnormalities by the ultrasound laboratory;", "(iii) DIC was not a direct consequence of an abdominal injection, but it represented a rare, very serious complication arising from this method; and", "(iv) taking into account that the diagnosis of DIC had been correctly detected in time to allow the applicant to be transferred to the county hospital, with the result that her life had been saved, no medical negligence could be identified.", "It was noted that there were some procedural failures in the handling of the case: the patient ’ s signature was missing on the consent form; an ultrasound description of the location of the placenta was missing; and a summary of lab test results was also missing.", "Taking into account the Town Hospital ’ s facilities and human resources, it was recommended that potentially risky cases should be treated in medical establishments which possessed the necessary facilities to deal with complications.", "C. Criminal complaint against Dr P.C.", "15. On an unspecified date in 2002, the applicant lodged a criminal complaint against Dr P.C. containing two charges: grievous unintentional bodily harm and negligence in the conduct of a profession. In a statement given on 19 November 2002, she joined a civil claim to her complaint.", "On 25 November 2002 the investigating officer ordered a medical expert report to be prepared by specialist medical experts from the Covasna County Forensics Department and from the County Hospital.", "16. On 4 December 2002 a medical expert report was issued by the Sfântu Gheorghe Forensics Department. This report concluded that no medical negligence had been committed, noting that the method chosen for inducing the abortion could be performed in any gynaecological hospital unit. Even if the medical records had not included the results of a lab test, this did not exclude the possibility that a test had been done but the results had not been written down. It was also underlined that the diagnosis of DIC had been quickly determined and that any delay in establishing this diagnosis might have rendered saving the applicant ’ s life almost impossible.", "17. On 15 January 2003 the applicant lodged her objections to the medical expert report with the investigating authorities. She noted that she had not been consulted with regard to the objectives of the report and that in any event it was incomplete, even when compared to the questions formulated by the police. She wanted the medical expert report to answer the following questions:", "(i) whether there were other medical methods available for interrupting the pregnancy which presented less risks and which did not entail endangering her life;", "(ii) whether the chosen method presented risks and, if so, what the treating physician ’ s obligations were before applying this method and whether the doctor had complied with those obligations;", "(iii) whether the medical procedure was urgent or whether there had been time to direct her to another, better equipped, hospital unit;", "(iv) whether the use of ultrasound might have influenced the outcome of the procedure; and", "(v) whether subjecting her to a total hysterectomy and bilateral adnexectomy could have been avoided if she had been hospitalised in a medical establishment which possessed the necessary facilities to handle a diagnosis of DIC immediately after it was detected.", "18. On 27 March 2003 the Târgu Mures Forensics Institute issued an opinion ( aviz ) on the case. Its conclusions were as follows:", "(i) the case file did not include medical information which could confirm the diagnosis of hydrocephalus with certainty;", "(ii) in the case of medical procedures for interrupting pregnancy later than the fourteenth week, the hospital ’ s standard procedure required that a medical form be filled in and signed by two specialist doctors and by the hospital director. This document was not found in the medical records;", "(iii) providing information to a patient in advance of treatment was compulsory. For certain procedures that entailed risk, the written consent of the patient was required. This document was not found in the medical records;", "(iv) prior to the procedure being carried out, lab tests had to be carried out. The results of such tests were not found in the medical records;", "(v) the haemorrhaging following the procedure could also have been caused by the rupturing of one or more blood vessels during the curettage, particularly taking into account the fact that the post-operative report had mentioned a haemorrhagic infiltration. The medical records did not include an ultrasound description of the localisation of the placenta; and", "(vi) the diagnosis of DIC was not confirmed by the lab tests, as there were no such results included among the medical documents submitted to the institute.", "19. On 16 April 2003 the prosecutor attached to the Covasna County Court, noting that based on the two medical reports it could not be precisely determined whether there had been any medical negligence which could trigger criminal liability on the part of Dr P.C., asked the Mina Minovici National Forensics Institute (“ the Forensics Institute”) to review all the medical reports and to issue an opinion from a scientific point of view on the medical acts performed in the case.", "20. The Forensics Institute issued its report on 26 January 2004. It confirmed the conclusions of the report of 4 December 2002 and thus excluded any medical negligence. It nevertheless observed that the doctor had failed to discuss the proposed procedure and the possible complications with the applicant and her family and to obtain her signature expressing her written consent to the proposed procedure.", "21. On 17 February 2003 the prosecutor decided not to bring criminal charges against the practitioner concerned. This decision was confirmed by the supervising prosecutor and by a final decision of the Covasna County Court of 29 September 2004." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "22. A series of laws concerning the public health service and patients ’ rights establish an obligation to inform a patient about any surgical procedure proposed, the risks involved in the procedure, alternative treatment, and diagnosis and prognosis : Laws nos. 3/1978 and 306/2004 on public health insurance; Law no. 74/1995 on the establishment and functioning of the College of Doctors; Law no. 46/2003 on patients ’ rights (“Law no. 46/2003”); and Law no. 95/2006 on reform of the medical sector (“Law no. 95/2006” ).", "23. According to Article 37 of Law no. 46/2003, a breach of a patient ’ s right to be informed and consulted may engage disciplinary or criminal action against the medical practitioner, depending on the applicable law.", "24. The judgement delivered in the case of Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic case-law and practice concerning the delivery of medico-legal expert reports and the authorities competent for their issuance, as well as the relevant domestic case-law and practice concerning the civil liability of medical staff.", "25. In the judgment rendered in the case of Codarcea v. Romania, the Court described in detail the relevant domestic practice concerning the civil liability of doctors and hospitals for medical errors (see Codarcea v. Romania, no. 31675/04, § § 69-74, 2 June 2009 ).", "26. Law no. 95/2006 introduced the notion of medical negligence as a basis for the liability of medical personnel and created an obligation on them to obtain insurance for any civil liability resulting from their work (see Eugenia Lazăr, cited above, § 54).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "27. Relying on Articles 2, 6 and 13 of the Convention, the applicant complained that she had not been properly informed of the risks of the procedure and that because of medical negligence her life had been endangered and she had become permanently unable to bear children. She considered that the investigation of the case had been superficial and that the forensic authorities had lacked impartiality in issuing the medical expert reports, leading to a situation in which she had not obtained recognition of the serious bodily harm inflicted on her and a guilty person had been protected.", "28. The Court is master of the characterisation to be given in law to the facts, and can decide to examine complaints submitted to it under another Article than that quoted by an applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998- I). It will therefore examine the complaint under Article 8 of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § § 61 and 63, ECHR 2002- III, and Codarcea, cited above, § 101), which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "29. The Government raised a plea of non-exhaustion of domestic remedies, arguing that the applicant should have lodged an action against the doctor and the hospital under the general tort law (Articles 998-999 and 1000 § 3 of the Civil Code). They developed the same arguments as those they had raised in Stihi-Boos v. Romania ( (dec.), no. 7823/06, §§ 46-48, 11 October 2011).", "30. They also made reference to several domestic court rulings whereby doctors ’ liability had been engaged under Law no. 95/2006 for medical negligence and to other court decisions rendering hospitals liable for the damage suffered by victims of medical negligence.", "31. The applicant contested the Government ’ s position. She argued that Dr P.C. ’ s actions had constituted serious offences and therefore submitted that a criminal prosecution had been the best suited remedy. She pointed out that her complaint concerned defects in the investigations carried out by the domestic authorities and that engaging in another set of proceedings (namely a tort action) could not possibly have remedied those flaws. She also noted that the courts had concluded that the procedure had been lawful and had thus held her claims to be unfounded.", "32. Lastly, the applicant noted that the domestic case-law presented by the Government showed that doctors had been criminally convicted for less serious offenses than those done to her and that victims had been awarded significant amounts in damages.", "33. The Court considers that the arguments put forward by the Government are closely linked to the substance of the complaint. It therefore joins their examination to the merits.", "34. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "35. The applicant reiterated that she had not been informed of the nature and possible consequences of the procedure and pointed out that the fact that she had been a nurse in the same hospital did not dispense the doctor from his duty to provide her with sufficient information to allow her to make an informed decision about the proposed treatment.", "36. She also reiterated that the procedure had not been urgent. Therefore, there had been no excuse for going ahead with the procedure without proper preparation, notably pre-operative checks. Furthermore, the doctor should have been able to assess the risks of her having the procedure in the Town Hospital, which had turned out to be an inadequate venue for handling the complications that had ensued. He should have sent her straight to the County Hospital. Lastly, she argued that the doctor had not adequately prepared for dealing with the complications, notably by failing to have an ambulance ready beforehand or to send a doctor and not only a nurse with her to the County Hospital.", "37. The Government argued that the applicant had been fully aware of the nature of the procedure that was to be performed on her. She had both known the foetus ’ s condition and had had extensive medical knowledge, as she herself had been a nurse. They also pointed out that her hospitalisation had been voluntary.", "They averred that the applicant had submitted her complaint and objections to the authorities, namely the College of Doctors and the Prosecutor ’ s Office, and had fully participated in the ensuing proceedings. The decisions taken had been based, among other things, on medical expert reports and had been fully reasoned.", "38. They reiterated that the authorities had not found any medical negligence in the case. The complications that had occurred had been very rare and unforeseeable. The doctor ’ s sole failing had been that he had not obtained the applicant ’ s written consent to the procedure. However, that lapse could not lead to the inference that the applicant had not been informed of the nature of the procedure or the risks involved or had not given her consent.", "39. The Government considered that the present case differed significantly from Eugenia Lazăr, cited above. There had not been any communication problems between the investigators and the Forensic Institute. In addition, the medical expert reports had not been the sole evidence in the case.", "40. For the reasons above, they concluded that the State ’ s responsibility could not be engaged under Article 8 of the Convention.", "2. The Court ’ s appreciation", "( a) General principles", "41. The Court makes reference to the general principles it has established concerning the State ’ s responsibility for medical negligence under Articles 2 and 8 of the Convention. In particular, it reiterates that the Contracting States are under an obligation to introduce regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients ’ lives (see Trocellier v. France (dec.), no. 75725/01, § 4, ECHR 2006- XIV ).", "42. Moreover, the Court has underlined that it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. It has considered it reasonable to infer from this that the Contracting States are bound, by virtue of this obligation, to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of a planned medical procedure on their patients ’ physical integrity and to inform patients of these consequences beforehand, in such a way that the latter are able to give informed consent. In particular, as a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, the State Party concerned may be directly liable under Article 8 for this lack of information ( see Trocellier, cited above, § 4; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII; Codarcea, cited above, § 105; and Pretty, cited above, § 63).", "43. Lastly, the Court reiterates that in the specific sphere of medical negligence, if the legal system affords victims full access to civil proceedings or to disciplinary proceedings which may lead to liability for medical negligence being established and a corresponding award of compensation, this could in principle be sufficient to discharge the State ’ s positive obligation to provide an effective judicial system (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§ 48-51, ECHR 2002-I, and Codarcea, cited above, § 102).", "( b) Application of those principles to the present case", "44. Turning to the facts of the case under examination, the Court notes that following a medical procedure performed by Dr P.C. in a state hospital, the applicant ’ s life was endangered and she was left permanently unable to bear children.", "45. There has accordingly been an interference with the applicant ’ s right to respect for her private life.", "46. The applicant did not argue that her loss had been caused intentionally by the doctor. Her complaint refers rather to the doctor ’ s negligence in performing the medical procedure and an inadequate response from the authorities.", "It remains, therefore, to be assessed whether the State has complied with its positive obligations set out in Article 8 of the Convention.", "47. The Court first notes that all the medical expert reports in the case concurred that the doctor had failed, prior to the procedure, to either obtain the applicant ’ s informed written consent or to perform the pre-operative checks required.", "48. The Court attaches weight to the existence of prior consent in the context of a patient ’ s right to respect for his or her physical integrity (see Codarcea, cited above, § 104). Any disregard by the medical personnel of a patient ’ s right to be duly informed can trigger the State ’ s responsibility in the matter (idem, § 105).", "49. It also notes that domestic legislation expressly provides for the patient ’ s right to receive information sufficient to allow that patient to give, and the doctor ’ s corollary obligation to obtain, informed consent prior to a procedure involving any risk.", "50. The Court cannot find a reasonable explanation for why that consent was not obtained in the present case. It cannot accept the Government ’ s position, according to which the fact that the applicant was a trained nurse dispensed the doctor from following established procedures and informing her of the risks involved in the procedure.", "51. Furthermore, it transpires from the facts that, while the need to abort the foetus was undisputed, there was no extreme urgency in performing the procedure. Therefore, the doctor was not under time constraints that could justify him not conducting preliminary tests on his patient or not properly assessing whether the town hospital was adequately equipped to deal with the possible complications.", "The expert opinion prepared for the College of Doctors lends force to this argument.", "52. The Court notes that the medical expert reports drafted during the criminal prosecution did not deal with the issue of urgency, despite the applicant ’ s requests and objections to this end. The questions asked by the applicant were relevant and in answering them the forensic authorities could have helped shed light on the unfortunate events that led to the applicant ’ s loss.", "53. It remains to be ascertained whether the remedies at the applicant ’ s disposal were sufficient to provide her redress for the loss suffered as a result of the medical procedure (see paragraph 43 above).", "54. The Court notes that in the instant case the applicant attached a civil claim to her criminal complaint against the doctor (see paragraph 15 above, as well as Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I ). In theory, at least, at the end of these proceedings, the applicant could have obtained an assessment of and compensation for the damage suffered. This remedy was therefore appropriate in the present case and the Court will thus examine the manner in which the investigation was carried out.", "55. The Court observes that the medical reports established that despite the obvious mistakes made in the handling of the case, there was no medical negligence on behalf of the doctor (see paragraphs 14, 16, 18 and 20 above and a contrario, Stihi Boos, cited above, § 60). Looking at the documents before it, the Court notes, however, that the prosecutor did not weigh the conflicting factual issues presented by the case.", "56. In particular, the prosecutor based his decision on the forensic reports issued at his request. He did not take into account the medical expert report prepared for the College of Doctors, although it was exhaustive and pointed to procedural shortcomings. He also failed to take the opinion of the Forensics Institute – the superior forensic authority – on that report into account. He thus only examined the two reports issued by the forensic laboratories. He also failed to provide answers to the questions raised by the applicant. The Court reiterates its finding that those questions were relevant and significant for the clarification of the events (see paragraph 52 above).", "57. The Court is not in a position to contradict the domestic courts ’ findings concerning the lack of criminal responsibility of the doctor in the case. However, given the serious consequences of the procedure, and the fact that the applicant had to go through it without being properly informed of the risks involved, the Court finds it unacceptable that an operation could be performed without respect of the rules and the safeguards created by the domestic system itself.", "58. The Court will further examine whether, as the Government claimed, a civil action against the doctor and the hospital could have constituted an effective remedy.", "59. The Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Stihi Boos, cited above, § 64).", "60. At the outset, the Court notes that although the experts acknowledged the existence of procedural failings on the part of Dr P.C., they excluded the existence of medical negligence ( see paragraphs 14, 16, 18, 20 and 55 above). In contrast, in Stihi Boos the medical expert reports formed the opinion that there had been no medical negligence because the decisions taken by the medical personnel had corresponded to the diagnosis and the general state of the victim ’ s health (see Stihi Boos, cited above, §§ 21 and 29-31).", "61. It is to be noted that, when the facts of the present case occurred, the system did not allow for a new forensic report to be commissioned, as the Forensics Institute had already given its opinion on the case (see Eugenia Lazăr, cited above, § 90; and Baldovin v. Romania, no. 11385/05, § 22, 7 June 2011 ). Therefore, it would have been impossible for the applicant to raise the issue of medical negligence again in a new set of proceedings, despite the significance that its elucidation might have had for the outcome of those proceedings. This casts doubt on whether a civil claim by the applicant against the doctor would have been an effective remedy, particularly given that an expert report would have constituted the essential evidence to support her case in the civil courts.", "62. The Court has already identified shortcomings in the Romanian system in respect of the limitation of doctors ’ liability to cases of established medical negligence (see paragraph 26 above and Eugenia Lazăr, cited above, § 90 ). Bearing in mind the consistency with which the expert reports excluded the existence of medical negligence in this case, the Court finds it even more difficult to see how this remedy could be effective in practice in the applicant ’ s particular situation.", "63. The Court will also assess the ability for the applicant to seek compensation directly from the hospital. It notes at the outset that she did not point to a lack of coordination between the two hospitals involved. She restricted her complaint to the decisions taken by one doctor.", "64. The Court notes that the domestic case-law in the matter is developing, but that the domestic courts have not consistently established the liability of hospitals in cases of medical negligence (see Codarcea, cited above, § § 71 and 108; and Stihi Boos, cited above, § 64).", "65. In the case under examination, it appears that the hospitals immediately took charge of the applicant ’ s case. Their swift intervention made it possible to limit the negative consequences of the initial procedure and to save her life ( see, a contrario, Csiki v. Romania, no. 11273/05, § 78, 5 July 2011, and Floarea Pop v. Romania, no. 63101/00, § § 22, 24 and 37, 6 April 2010 ). The lack of any fault in the hospital ’ s handling of the matter, coupled with the developing domestic case ‑ law concerning hospitals ’ liability for medical acts ( see paragraph 64 above ), renders an action for compensation against the hospital too weak a remedy to be deemed effective.", "66. The Court also notes the changes brought about in 2006 by Law no. 95/2006 which, in principle, would make it easier nowadays for victims of medical negligence to seek compensation in the absence of a finding of guilt (see Eugenia Lazăr, § 54, and Baldovin, § 27, judgments cited above ). However, the Government did not argue that the applicant could still avail herself of these new provisions.", "67. Lastly, the Court finds it relevant in the present case that the applicant did not remain passive, nor was her sole goal to have the doctor criminally punished (see, a contrario, Stihi Boos, cited above, §§ 51 and 65). She lodged a request with the College of Doctors and pursued a civil claim within the criminal proceedings. However, neither of these authorities offered her redress.", "In these circumstances, it would be disproportionate to require her to lodge yet another action with the civil courts.", "68. The foregoing considerations are sufficient to enable the Court to conclude that by not involving the applicant in the choice of medical treatment and by not informing her properly of the risks involved in the medical procedure, the applicant suffered an infringement of her right to private life.", "Furthermore, the system in place as at the date of the facts of the present case made it impossible for the applicant to obtain redress for the infringement of her right to respect for her private life. The respondent State has therefore failed to comply with its positive obligations under Article 8 of the Convention.", "For these reasons, the Court will dismiss the Government ’ s objection and conclude that there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "69. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "70. The applicant claimed 75,000 euros (EUR) in respect of non - pecuniary damage.", "71. The Government argued that there was no causal link between the alleged violation and the damage claimed and that in any case the amount sought in that respect was excessive. They considered that the finding of a violation would constitute sufficient just satisfaction in the case.", "72. The Court reiterates having found a violation of the applicant ’ s right to privacy. It considers that the applicant incurred non-pecuniary damage which cannot be compensated by the mere finding of a violation. It therefore awards the applicant EUR 6,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "73. The applicant did not make a claim under this head.", "C. Default interest", "74. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are eight female Slovakian nationals of Roma ethnic origin.", "A. Background to the case", "7. The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries. Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital, when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents.", "8. The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice. The lawyers were authorised to review and photocopy the women ’ s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence were not destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights.", "9. The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002. The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so.", "10. On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted.", "B. Civil proceedings", "11. The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records.", "1. Action against the J. A. Reiman University Hospital in Prešov", "12. Six applicants brought an action against the J.A. Reiman University Hospital ( Fakultná nemocnica J. A. Reimana ) in Prešov ( “the Prešov Hospital ”) on 13 January 2003.", "13. On 18 June 2003 the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003.", "14. With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse. It was not contrary to the plaintiffs ’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment.", "15. On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. There was no indication that the applicants ’ right to have any future claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised. In particular, under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient ’ s claim for damages.", "2. Action against the Health Care Centre in Krompachy", "16. H.M. and V. Ž., the two remaining applicants, brought an identical action against the Health Care Centre ( Nemocnica s poliklinikou ) in Krompachy (“the Krompachy Hospital ”) on 13 January 2003.", "17. On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants ’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein.", "18. The applicants appealed against the decision concerning the photocopying of the documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages.", "19. On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records.", "C. Constitutional proceedings", "1. Complaint of 24 May 2004", "20. On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital, the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention.", "21. As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could. However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State, to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies. This would enable an independent expert, possibly abroad, to examine them, and also provide a safeguard in the event of the possible destruction of the originals.", "22. Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them.", "23. On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 of the Convention in the proceedings leading to the Regional Court ’ s judgment of 17 February 2004. As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting interests. Reference was made to the explanatory report to that Act. Furthermore, Article 8 of the Convention did not encompass a right to make photocopies of medical documents.", "2. Complaint of 25 June 2004", "24. On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court ’ s judgment of 24 March 2004.", "25. On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint as being premature. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court ’ s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned.", "D. Subsequent developments", "26. Subsequently seven applicants were able to access their files and to make photocopies thereof under the newly introduced Health Care Act 2004 (see paragraph 35 below) in circumstances which are set out in the decision on the admissibility of the present application.", "27. As regards the eighth applicant, Ms J. H., the Prešov Hospital only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure. On 22 May 2006 the Director of the Prešov Hospital informed the applicant that her complete medical file had not been located and that it was considered lost. On 31 May 2007 the Ministry of Health admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure the proper keeping of the medical file of Ms J. H.", "III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA", "36. Point 8 of the Recommendation adopted on 13 February 1997 deals with the rights of persons whose medical data have been collected. The relevant part provides:", "“ Rights of access and of rectification", "8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form.", "8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if:", "a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ... ”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Code of Civil Procedure", "28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated.", "29. Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons ’ rights.", "30. Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later.", "31. Article 79 § 2 obliges a plaintiff to submit the documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons.", "32. Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court. Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue.", "B. Health Care Act 1994", "33. Until 31 December 2004, the following provisions of Health Care Act 277/1994 ( Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force:", "“Section 16 – Medical records", "1. The keeping of medical records shall form an inseparable part of health care.", "2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ...", "3. Medical records shall be archived for a period of 50 years after the patient ’ s death. ...", "5. A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities.", "6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ...", "8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ...", "11. An excerpt from a person ’ s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.”", "34. The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows:", "“Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.”", "C. Health Care Act 2004", "35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows:", "“Section 25 – Access to data included in medical records", "1. Data included in medical records shall be made available by means of consultation of the medical records to:", "(a) the person concerned or his or her legal representative, without any restriction; ...", "(c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ...", "(g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ...", "2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "37. The applicants complained that they had been unable to obtain photocopies of their medical records under the Health Care Act 1994. They relied on Article 8 of the Convention, which in its relevant part provides:", "“1. Everyone has the right to respect for his private and family life, ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicants", "38. The applicants maintained that the mere possibility of consulting the files and making handwritten excerpts thereof did not provide them with effective access to the relevant documents concerning their health. In particular, medical records contained charts, graphs, drawings and other data which could not be properly reproduced through handwritten notes. They were voluminous as a rule and their transcript by hand was not only insufficient but also time consuming and burdensome.", "39. The originals of the records contained information which the applicants considered important from the point of view of their moral and physical integrity. In particular, the applicants feared that they had been subjected to an intervention affecting their reproductive status. The records would convey not only information about any such intervention, but also whether the applicants had given consent to it and in what circumstances. A typed or handwritten transcript of the records could not faithfully represent the particular features of the original records bearing, in some cases, the applicants ’ signatures. With photocopies of the records the applicants would not only be able to establish a basis for civil litigation but also to demonstrate to their families and communities, where appropriate, that their infertility was not a result of any deliberate action on their part.", "40. Finally, the applicants saw no justification for the Government ’ s argument according to which submitting transcripts of the relevant parts of the medical documents to prosecuting authorities or courts protected their privacy to a greater extent than making copies of the relevant files available.", "2. The Government", "41. The Government argued that the refusal to allow the applicants to make photocopies of their medical files had been in accordance with the relevant provisions of the Health Care Act 1994. It had been compatible with the applicants ’ right to respect for their private and family life in the circumstances. In particular, the applicants had been allowed to study all the records and to make handwritten excerpts thereof.", "42. The refusal to allow the applicants to photocopy their medical records had been justified, at the relevant time, by the State ’ s obligation to protect the relevant information from abuse. The State enjoyed a margin of appreciation in regulating similar issues. It had not been overstepped in the case of the applicants, who had not been prevented from obtaining all relevant information related to their health. The Contracting States ’ positive obligations under Article 8 did not extend to an obligation to allow persons to make photocopies of their medical records.", "43. Under the relevant law health institutions were obliged, upon a written request, to provide relevant information contained in the medical records of the person making the request, in the form of written excerpts, to police investigators, prosecutors or a court. That procedure provided the advantage that, unlike a copy of the medical file, it gave access to the relevant parts of the files without disclosing other information which was not related to the subject-matter of the proceedings.", "B. The Court ’ s assessment", "44. The complaint in issue concerns the exercise by the applicants of their right of effective access to information concerning their health and reproductive status. As such it is linked to their private and family lives within the meaning of Article 8 (see, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X, with further reference).", "45. The Court reiterates that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for one ’ s private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (see, for example, Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160 ).", "46. The existence of such a positive obligation was established by the Court, among other circumstances, where applicants sought access to information about risks to one ’ s health and well-being resulting from environmental pollution ( Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998 ‑ I ), information which would permit them to assess any risk resulting from their participation in nuclear tests ( McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III ) or tests involving exposure to toxic chemicals ( Roche v. the United Kingdom [GC], referred to above). The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information” (see, for example, Roche v. the United Kingdom [GC] cited above, § 162, with further references).", "Similarly, such a positive obligation was found to exist where applicants sought access to information to social service records containing information about their childhood and personal history (see Gaskin v. the United Kingdom, cited above and M.G. v. the United Kingdom, no. 39393/98, § 31, 24 September 2002 ).", "47. Bearing in mind that the exercise of the right under Article 8 to respect for one ’ s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007 ‑ ... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files.", "48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility.", "49. The applicants in the present case obtained judicial orders permitting them to consult their medical records in their entirety, but they were not allowed to make copies of them under the Health Care Act 1994. The point to be determined by the Court is whether in that respect the authorities of the respondent State complied with their positive obligation and, in particular, whether the reasons invoked for such a refusal were sufficiently compelling to outweigh the Article 8 right of the applicants to obtain copies of their medical records.", "50. Although it was not for the applicants to justify the requests for copies of their own medical files (see paragraph 48 above), the Court would nevertheless underline that the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant documents concerning their health. The original records, which could not be reproduced manually, contained information which the applicants considered important from the point of view of their moral and physical integrity as they suspected that they had been subjected to an intervention affecting their reproductive status.", "51. The Court also observes that the applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance. As to the latter point, it cannot be overlooked that the medical file of one of the applicants had actually been lost (see paragraph 2 7 above).", "52. The national courts mainly justified the prohibition on making copies of medical records by the need to protect the relevant information from abuse. The Government relied on the Contracting States ’ margin of appreciation in similar matters and considered that the Slovak authorities had complied with their obligations under Article 8 by allowing the applicants or their representatives to study all the records and to make handwritten excerpts thereof.", "53. The arguments put forward by the domestic courts and the Government are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8, to outweigh the applicants ’ right to obtain copies of their medical records.", "54. In particular, the Court does not see how the applicants, who had in any event been given access to the entirety of their medical files, could abuse information concerning their own persons by making photocopies of the relevant documents.", "55. As to the argument relating to possible abuse of the information by third persons, the Court has previously found that protection of medical data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention and that respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention (see I. v. Finland, no. 20511/03, § 38, 17 July 2008 ).", "56. However, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants. For example, communication or disclosure of personal health data that may be inconsistent with the guarantees in Article 8 of the Convention can be prevented by means such as incorporation in domestic law of appropriate safeguards with a view to strictly limiting the circumstances under which such data can be disclosed and the scope of persons entitled to accede to the files (see also Z v. Finland, judgment of 25 February 1997, Reports 1997-I, §§ 95-96).", "57. The fact that the Health Care Act 2004 repealed the relevant provision of the Health Care Act 1994 and explicitly provides for the possibility for patients or persons authorised by them to make copies of medical records is in line with the above conclusion. That legislative change, although welcomed, cannot affect the position in the case under consideration.", "58. There has therefore been a failure to fulfil the positive obligation to ensure effective respect for the applicants ’ private and family lives in breach of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "59. The applicants complained that their right of access to a court had been violated as a result of the refusal to provide them with copies of their medical records. They relied on Article 6 § 1 of the Convention, which in its relevant part provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”", "60. The applicants argued that they had been barred from having effective access to their medical records and from securing the evidence included in those records by means of photocopies. Having copies of the files was important for later civil litigation concerning any possible claims for damages on their part and for compliance with the burden of proof, which would be incumbent on the applicants as plaintiffs.", "61. Obtaining copies of the medical records was essential for an assessment, with the assistance of independent medical experts of the applicants ’ choice, of the position in their cases and of the prospects of success of any future civil actions. The latter element was important because the applicants, who were living on social benefits, would be ordered to reimburse the other party ’ s costs if the courts dismissed their action.", "62. The applicants considered that they could not obtain redress by means of asking a court under Article 78 of the Code of Civil Procedure to secure the files as evidence in the proceedings. They relied on section 16(5) of the Health Care Act 1994, which allowed courts to receive information from medical records exclusively in the form of excerpts but not the records as such or their copies. The domestic courts were thus unable to directly check any inconsistency in the applicants ’ medical records.", "63. The Government referred to the conclusions reached by the Constitutional Court on 8 December 2004. Consulting and making excerpts from the medical documents had provided the applicants with a sufficient opportunity to assess the position in their cases and initiate civil proceedings if appropriate. The relevant provisions of the Code of Civil Procedure included guarantees for the applicants to be able effectively to seek redress before the courts in respect of any infringement of their rights which they might establish during the consultation of their medical records. The use of excerpts of the files had the advantage of protecting confidential information and personal data which had no bearing on the litigation in issue.", "64. The Court reiterates that the right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. It secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. Where the individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).", "65. The Court accepts the applicants ’ argument that they had been in a state of uncertainty as regards their health and reproductive status following their treatment in the two hospitals concerned and that obtaining the relevant evidence, in particular in the form of photocopies, was essential for an assessment of the position in their cases from the perspective of effectively seeking redress before the courts in respect of any shortcomings in their medical treatment.", "66. The protection of a person ’ s rights under Article 6 requires, in the Court ’ s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification.", "67. It is true that the statutory bar at the material time on the making available of copies of the records did not entirely bar the applicants from bringing a civil action on the basis of information obtained in the course of the consultation of their files. However, the Court considers that section 16(6) of the Health Care Act 1994 imposed a disproportionate limitation on their ability to present their cases to a court in an effective manner. It is relevant in this respect that the applicants considered the original form of the records, which could not be reproduced manually and which, in accordance with the above-cited provision, could not be made available to either the applicants or the courts (compare and contrast in this connection the McGinley and Egan case (cited above, § 90)), decisive for the determination of their cases.", "68. When examining the facts of the case under Article 8 of the Convention the Court has found no sufficiently strong justification for preventing the applicants from obtaining copies of their medical records. For similar reasons, that restriction cannot be considered compatible with an effective exercise by the applicants of their right of access to a court.", "69. There has therefore been a violation of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "70. The applicants complained that they had no effective remedy at their disposal in respect of their above complaints under Article 8 and Article 6 § 1 of the Convention. They alleged a violation of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "71. The Government argued that the applicants had at their disposal an effective remedy, namely a complaint under Article 127 of the Constitution.", "A. Alleged violation of Article 13 in conjunction with Article 8", "72. The Court recalls that Article 13 does not guarantee a remedy whereby a law as such can be challenged before a domestic organ (see M.A. and 34 Others v. Finland ( dec .), no. 7793/95, 10 June 2003). It follows from the terms of the applicants ’ submissions that it is basically the legislation as such which they attack. However, as stated above, Article 13 does not guarantee a remedy for such complaints.", "In these circumstances, the Court concludes that there has been no violation of Article 13 taken together with Article 8 of the Convention.", "B. Alleged violation of Article 13 in conjunction with Article 6 § 1", "73. In view of its conclusion in relation to Article 6 § 1 (see paragraph 69 above), the Court does not consider it necessary to examine separately the complaint in relation to Article 13, the requirements of which are less strict than and absorbed by those of Article 6 § 1 in this case (see also McGinley and Egan v. the United Kingdom referred to above, § 106).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "74. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "75. The eight applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. They submitted that they had been unable to obtain photocopies of their medical records for three years, as a result of which they had experienced anxiety about the state of their health and reproductive abilities. Their personal lives had been thereby affected.", "76. The Government considered that claim to be excessive.", "77. The Court accepts that the applicants suffered non-pecuniary damage which cannot be remedied by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards each of the eight applicants EUR 3, 5 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "78. The applicants claimed EUR 6,042 for their representation in the domestic proceedings by Mrs V. Durbáková and the Centre for Civil and Human Rights in Košice. They claimed a total of EUR 11,600 in respect of the proceedings before the Court. Finally, the applicants claimed EUR 812 in respect of the administrative costs of their legal representatives (preparation of legal documents, photocopying, telephone calls, sending of faxes and postage) and EUR 1,127.50 for translation of documents and expenses incurred in correspondence with the Court.", "79. The Government considered that the claims relating to the applicants ’ representation and the administrative costs were overstated. They had no objection to the sums claimed in respect of translation costs and international postage.", "80. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Rule 60 and, among other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 - VIII).", "81. Having regard to the documents submitted, the number of applicants, the scope of the proceedings at both national level and before the Court and the fact that the applicants were only partly successful in the Convention proceedings, the Court awards the applicants a total of EUR 8,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants.", "C. Default interest", "82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are eight female Slovakian nationals of Roma ethnic origin.", "A. Background to the case", "7. The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries. Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital, when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents.", "8. The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice. The lawyers were authorised to review and photocopy the women ’ s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence were not destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights.", "9. The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002. The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so.", "10. On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted.", "B. Civil proceedings", "11. The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records.", "1. Action against the J. A. Reiman University Hospital in Prešov", "12. Six applicants brought an action against the J.A. Reiman University Hospital ( Fakultná nemocnica J. A. Reimana ) in Prešov ( “the Prešov Hospital ”) on 13 January 2003.", "13. On 18 June 2003 the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003.", "14. With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse. It was not contrary to the plaintiffs ’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment.", "15. On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. There was no indication that the applicants ’ right to have any future claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised. In particular, under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient ’ s claim for damages.", "2. Action against the Health Care Centre in Krompachy", "16. H.M. and V. Ž., the two remaining applicants, brought an identical action against the Health Care Centre ( Nemocnica s poliklinikou ) in Krompachy (“the Krompachy Hospital ”) on 13 January 2003.", "17. On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants ’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein.", "18. The applicants appealed against the decision concerning the photocopying of the documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages.", "19. On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records.", "C. Constitutional proceedings", "1. Complaint of 24 May 2004", "20. On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital, the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention.", "21. As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could. However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State, to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies. This would enable an independent expert, possibly abroad, to examine them, and also provide a safeguard in the event of the possible destruction of the originals.", "22. Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them.", "23. On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 of the Convention in the proceedings leading to the Regional Court ’ s judgment of 17 February 2004. As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting interests. Reference was made to the explanatory report to that Act. Furthermore, Article 8 of the Convention did not encompass a right to make photocopies of medical documents.", "2. Complaint of 25 June 2004", "24. On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court ’ s judgment of 24 March 2004.", "25. On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint as being premature. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court ’ s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned.", "D. Subsequent developments", "26. Subsequently seven applicants were able to access their files and to make photocopies thereof under the newly introduced Health Care Act 2004 (see paragraph 35 below) in circumstances which are set out in the decision on the admissibility of the present application.", "27. As regards the eighth applicant, Ms J. H., the Prešov Hospital only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure. On 22 May 2006 the Director of the Prešov Hospital informed the applicant that her complete medical file had not been located and that it was considered lost. On 31 May 2007 the Ministry of Health admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure the proper keeping of the medical file of Ms J. H.", "III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA", "36. Point 8 of the Recommendation adopted on 13 February 1997 deals with the rights of persons whose medical data have been collected. The relevant part provides:", "“ Rights of access and of rectification", "8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form.", "8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if:", "a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ... ”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Code of Civil Procedure", "28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated.", "29. Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons ’ rights.", "30. Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later.", "31. Article 79 § 2 obliges a plaintiff to submit the documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons.", "32. Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court. Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue.", "B. Health Care Act 1994", "33. Until 31 December 2004, the following provisions of Health Care Act 277/1994 ( Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force:", "“Section 16 – Medical records", "1. The keeping of medical records shall form an inseparable part of health care.", "2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ...", "3. Medical records shall be archived for a period of 50 years after the patient ’ s death. ...", "5. A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities.", "6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ...", "8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ...", "11. An excerpt from a person ’ s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.”", "34. The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows:", "“Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.”", "C. Health Care Act 2004", "35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows:", "“Section 25 – Access to data included in medical records", "1. Data included in medical records shall be made available by means of consultation of the medical records to:", "(a) the person concerned or his or her legal representative, without any restriction; ...", "(c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ...", "(g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ...", "2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "37. The applicants complained that they had been unable to obtain photocopies of their medical records under the Health Care Act 1994. They relied on Article 8 of the Convention, which in its relevant part provides:", "“1. Everyone has the right to respect for his private and family life, ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicants", "38. The applicants maintained that the mere possibility of consulting the files and making handwritten excerpts thereof did not provide them with effective access to the relevant documents concerning their health. In particular, medical records contained charts, graphs, drawings and other data which could not be properly reproduced through handwritten notes. They were voluminous as a rule and their transcript by hand was not only insufficient but also time consuming and burdensome.", "39. The originals of the records contained information which the applicants considered important from the point of view of their moral and physical integrity. In particular, the applicants feared that they had been subjected to an intervention affecting their reproductive status. The records would convey not only information about any such intervention, but also whether the applicants had given consent to it and in what circumstances. A typed or handwritten transcript of the records could not faithfully represent the particular features of the original records bearing, in some cases, the applicants ’ signatures. With photocopies of the records the applicants would not only be able to establish a basis for civil litigation but also to demonstrate to their families and communities, where appropriate, that their infertility was not a result of any deliberate action on their part.", "40. Finally, the applicants saw no justification for the Government ’ s argument according to which submitting transcripts of the relevant parts of the medical documents to prosecuting authorities or courts protected their privacy to a greater extent than making copies of the relevant files available.", "2. The Government", "41. The Government argued that the refusal to allow the applicants to make photocopies of their medical files had been in accordance with the relevant provisions of the Health Care Act 1994. It had been compatible with the applicants ’ right to respect for their private and family life in the circumstances. In particular, the applicants had been allowed to study all the records and to make handwritten excerpts thereof.", "42. The refusal to allow the applicants to photocopy their medical records had been justified, at the relevant time, by the State ’ s obligation to protect the relevant information from abuse. The State enjoyed a margin of appreciation in regulating similar issues. It had not been overstepped in the case of the applicants, who had not been prevented from obtaining all relevant information related to their health. The Contracting States ’ positive obligations under Article 8 did not extend to an obligation to allow persons to make photocopies of their medical records.", "43. Under the relevant law health institutions were obliged, upon a written request, to provide relevant information contained in the medical records of the person making the request, in the form of written excerpts, to police investigators, prosecutors or a court. That procedure provided the advantage that, unlike a copy of the medical file, it gave access to the relevant parts of the files without disclosing other information which was not related to the subject-matter of the proceedings.", "B. The Court ’ s assessment", "44. The complaint in issue concerns the exercise by the applicants of their right of effective access to information concerning their health and reproductive status. As such it is linked to their private and family lives within the meaning of Article 8 (see, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X, with further reference).", "45. The Court reiterates that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for one ’ s private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (see, for example, Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160 ).", "46. The existence of such a positive obligation was established by the Court, among other circumstances, where applicants sought access to information about risks to one ’ s health and well-being resulting from environmental pollution ( Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998 ‑ I ), information which would permit them to assess any risk resulting from their participation in nuclear tests ( McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III ) or tests involving exposure to toxic chemicals ( Roche v. the United Kingdom [GC], referred to above). The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information” (see, for example, Roche v. the United Kingdom [GC] cited above, § 162, with further references).", "Similarly, such a positive obligation was found to exist where applicants sought access to information to social service records containing information about their childhood and personal history (see Gaskin v. the United Kingdom, cited above and M.G. v. the United Kingdom, no. 39393/98, § 31, 24 September 2002 ).", "47. Bearing in mind that the exercise of the right under Article 8 to respect for one ’ s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007 ‑ ... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files.", "48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility.", "49. The applicants in the present case obtained judicial orders permitting them to consult their medical records in their entirety, but they were not allowed to make copies of them under the Health Care Act 1994. The point to be determined by the Court is whether in that respect the authorities of the respondent State complied with their positive obligation and, in particular, whether the reasons invoked for such a refusal were sufficiently compelling to outweigh the Article 8 right of the applicants to obtain copies of their medical records.", "50. Although it was not for the applicants to justify the requests for copies of their own medical files (see paragraph 48 above), the Court would nevertheless underline that the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant documents concerning their health. The original records, which could not be reproduced manually, contained information which the applicants considered important from the point of view of their moral and physical integrity as they suspected that they had been subjected to an intervention affecting their reproductive status.", "51. The Court also observes that the applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance. As to the latter point, it cannot be overlooked that the medical file of one of the applicants had actually been lost (see paragraph 2 7 above).", "52. The national courts mainly justified the prohibition on making copies of medical records by the need to protect the relevant information from abuse. The Government relied on the Contracting States ’ margin of appreciation in similar matters and considered that the Slovak authorities had complied with their obligations under Article 8 by allowing the applicants or their representatives to study all the records and to make handwritten excerpts thereof.", "53. The arguments put forward by the domestic courts and the Government are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8, to outweigh the applicants ’ right to obtain copies of their medical records.", "54. In particular, the Court does not see how the applicants, who had in any event been given access to the entirety of their medical files, could abuse information concerning their own persons by making photocopies of the relevant documents.", "55. As to the argument relating to possible abuse of the information by third persons, the Court has previously found that protection of medical data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention and that respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention (see I. v. Finland, no. 20511/03, § 38, 17 July 2008 ).", "56. However, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants. For example, communication or disclosure of personal health data that may be inconsistent with the guarantees in Article 8 of the Convention can be prevented by means such as incorporation in domestic law of appropriate safeguards with a view to strictly limiting the circumstances under which such data can be disclosed and the scope of persons entitled to accede to the files (see also Z v. Finland, judgment of 25 February 1997, Reports 1997-I, §§ 95-96).", "57. The fact that the Health Care Act 2004 repealed the relevant provision of the Health Care Act 1994 and explicitly provides for the possibility for patients or persons authorised by them to make copies of medical records is in line with the above conclusion. That legislative change, although welcomed, cannot affect the position in the case under consideration.", "58. There has therefore been a failure to fulfil the positive obligation to ensure effective respect for the applicants ’ private and family lives in breach of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "59. The applicants complained that their right of access to a court had been violated as a result of the refusal to provide them with copies of their medical records. They relied on Article 6 § 1 of the Convention, which in its relevant part provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”", "60. The applicants argued that they had been barred from having effective access to their medical records and from securing the evidence included in those records by means of photocopies. Having copies of the files was important for later civil litigation concerning any possible claims for damages on their part and for compliance with the burden of proof, which would be incumbent on the applicants as plaintiffs.", "61. Obtaining copies of the medical records was essential for an assessment, with the assistance of independent medical experts of the applicants ’ choice, of the position in their cases and of the prospects of success of any future civil actions. The latter element was important because the applicants, who were living on social benefits, would be ordered to reimburse the other party ’ s costs if the courts dismissed their action.", "62. The applicants considered that they could not obtain redress by means of asking a court under Article 78 of the Code of Civil Procedure to secure the files as evidence in the proceedings. They relied on section 16(5) of the Health Care Act 1994, which allowed courts to receive information from medical records exclusively in the form of excerpts but not the records as such or their copies. The domestic courts were thus unable to directly check any inconsistency in the applicants ’ medical records.", "63. The Government referred to the conclusions reached by the Constitutional Court on 8 December 2004. Consulting and making excerpts from the medical documents had provided the applicants with a sufficient opportunity to assess the position in their cases and initiate civil proceedings if appropriate. The relevant provisions of the Code of Civil Procedure included guarantees for the applicants to be able effectively to seek redress before the courts in respect of any infringement of their rights which they might establish during the consultation of their medical records. The use of excerpts of the files had the advantage of protecting confidential information and personal data which had no bearing on the litigation in issue.", "64. The Court reiterates that the right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. It secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. Where the individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).", "65. The Court accepts the applicants ’ argument that they had been in a state of uncertainty as regards their health and reproductive status following their treatment in the two hospitals concerned and that obtaining the relevant evidence, in particular in the form of photocopies, was essential for an assessment of the position in their cases from the perspective of effectively seeking redress before the courts in respect of any shortcomings in their medical treatment.", "66. The protection of a person ’ s rights under Article 6 requires, in the Court ’ s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification.", "67. It is true that the statutory bar at the material time on the making available of copies of the records did not entirely bar the applicants from bringing a civil action on the basis of information obtained in the course of the consultation of their files. However, the Court considers that section 16(6) of the Health Care Act 1994 imposed a disproportionate limitation on their ability to present their cases to a court in an effective manner. It is relevant in this respect that the applicants considered the original form of the records, which could not be reproduced manually and which, in accordance with the above-cited provision, could not be made available to either the applicants or the courts (compare and contrast in this connection the McGinley and Egan case (cited above, § 90)), decisive for the determination of their cases.", "68. When examining the facts of the case under Article 8 of the Convention the Court has found no sufficiently strong justification for preventing the applicants from obtaining copies of their medical records. For similar reasons, that restriction cannot be considered compatible with an effective exercise by the applicants of their right of access to a court.", "69. There has therefore been a violation of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "70. The applicants complained that they had no effective remedy at their disposal in respect of their above complaints under Article 8 and Article 6 § 1 of the Convention. They alleged a violation of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "71. The Government argued that the applicants had at their disposal an effective remedy, namely a complaint under Article 127 of the Constitution.", "A. Alleged violation of Article 13 in conjunction with Article 8", "72. The Court recalls that Article 13 does not guarantee a remedy whereby a law as such can be challenged before a domestic organ (see M.A. and 34 Others v. Finland ( dec .), no. 7793/95, 10 June 2003). It follows from the terms of the applicants ’ submissions that it is basically the legislation as such which they attack. However, as stated above, Article 13 does not guarantee a remedy for such complaints.", "In these circumstances, the Court concludes that there has been no violation of Article 13 taken together with Article 8 of the Convention.", "B. Alleged violation of Article 13 in conjunction with Article 6 § 1", "73. In view of its conclusion in relation to Article 6 § 1 (see paragraph 69 above), the Court does not consider it necessary to examine separately the complaint in relation to Article 13, the requirements of which are less strict than and absorbed by those of Article 6 § 1 in this case (see also McGinley and Egan v. the United Kingdom referred to above, § 106).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "74. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "75. The eight applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. They submitted that they had been unable to obtain photocopies of their medical records for three years, as a result of which they had experienced anxiety about the state of their health and reproductive abilities. Their personal lives had been thereby affected.", "76. The Government considered that claim to be excessive.", "77. The Court accepts that the applicants suffered non-pecuniary damage which cannot be remedied by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards each of the eight applicants EUR 3, 5 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "78. The applicants claimed EUR 6,042 for their representation in the domestic proceedings by Mrs V. Durbáková and the Centre for Civil and Human Rights in Košice. They claimed a total of EUR 11,600 in respect of the proceedings before the Court. Finally, the applicants claimed EUR 812 in respect of the administrative costs of their legal representatives (preparation of legal documents, photocopying, telephone calls, sending of faxes and postage) and EUR 1,127.50 for translation of documents and expenses incurred in correspondence with the Court.", "79. The Government considered that the claims relating to the applicants ’ representation and the administrative costs were overstated. They had no objection to the sums claimed in respect of translation costs and international postage.", "80. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Rule 60 and, among other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 - VIII).", "81. Having regard to the documents submitted, the number of applicants, the scope of the proceedings at both national level and before the Court and the fact that the applicants were only partly successful in the Convention proceedings, the Court awards the applicants a total of EUR 8,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants.", "C. Default interest", "82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are eight female Slovakian nationals of Roma ethnic origin.", "A. Background to the case", "7. The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries. Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital, when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents.", "8. The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice. The lawyers were authorised to review and photocopy the women ’ s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence were not destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights.", "9. The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002. The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so.", "10. On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted.", "B. Civil proceedings", "11. The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records.", "1. Action against the J. A. Reiman University Hospital in Prešov", "12. Six applicants brought an action against the J.A. Reiman University Hospital ( Fakultná nemocnica J. A. Reimana ) in Prešov ( “the Prešov Hospital ”) on 13 January 2003.", "13. On 18 June 2003 the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003.", "14. With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse. It was not contrary to the plaintiffs ’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment.", "15. On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. There was no indication that the applicants ’ right to have any future claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised. In particular, under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient ’ s claim for damages.", "2. Action against the Health Care Centre in Krompachy", "16. H.M. and V. Ž., the two remaining applicants, brought an identical action against the Health Care Centre ( Nemocnica s poliklinikou ) in Krompachy (“the Krompachy Hospital ”) on 13 January 2003.", "17. On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants ’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein.", "18. The applicants appealed against the decision concerning the photocopying of the documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages.", "19. On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records.", "C. Constitutional proceedings", "1. Complaint of 24 May 2004", "20. On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital, the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention.", "21. As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could. However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State, to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies. This would enable an independent expert, possibly abroad, to examine them, and also provide a safeguard in the event of the possible destruction of the originals.", "22. Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them.", "23. On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 of the Convention in the proceedings leading to the Regional Court ’ s judgment of 17 February 2004. As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting interests. Reference was made to the explanatory report to that Act. Furthermore, Article 8 of the Convention did not encompass a right to make photocopies of medical documents.", "2. Complaint of 25 June 2004", "24. On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court ’ s judgment of 24 March 2004.", "25. On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint as being premature. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court ’ s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned.", "D. Subsequent developments", "26. Subsequently seven applicants were able to access their files and to make photocopies thereof under the newly introduced Health Care Act 2004 (see paragraph 35 below) in circumstances which are set out in the decision on the admissibility of the present application.", "27. As regards the eighth applicant, Ms J. H., the Prešov Hospital only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure. On 22 May 2006 the Director of the Prešov Hospital informed the applicant that her complete medical file had not been located and that it was considered lost. On 31 May 2007 the Ministry of Health admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure the proper keeping of the medical file of Ms J. H.", "III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA", "36. Point 8 of the Recommendation adopted on 13 February 1997 deals with the rights of persons whose medical data have been collected. The relevant part provides:", "“ Rights of access and of rectification", "8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form.", "8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if:", "a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ... ”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Code of Civil Procedure", "28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated.", "29. Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons ’ rights.", "30. Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later.", "31. Article 79 § 2 obliges a plaintiff to submit the documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons.", "32. Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court. Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue.", "B. Health Care Act 1994", "33. Until 31 December 2004, the following provisions of Health Care Act 277/1994 ( Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force:", "“Section 16 – Medical records", "1. The keeping of medical records shall form an inseparable part of health care.", "2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ...", "3. Medical records shall be archived for a period of 50 years after the patient ’ s death. ...", "5. A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities.", "6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ...", "8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ...", "11. An excerpt from a person ’ s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.”", "34. The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows:", "“Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.”", "C. Health Care Act 2004", "35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows:", "“Section 25 – Access to data included in medical records", "1. Data included in medical records shall be made available by means of consultation of the medical records to:", "(a) the person concerned or his or her legal representative, without any restriction; ...", "(c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ...", "(g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ...", "2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "37. The applicants complained that they had been unable to obtain photocopies of their medical records under the Health Care Act 1994. They relied on Article 8 of the Convention, which in its relevant part provides:", "“1. Everyone has the right to respect for his private and family life, ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicants", "38. The applicants maintained that the mere possibility of consulting the files and making handwritten excerpts thereof did not provide them with effective access to the relevant documents concerning their health. In particular, medical records contained charts, graphs, drawings and other data which could not be properly reproduced through handwritten notes. They were voluminous as a rule and their transcript by hand was not only insufficient but also time consuming and burdensome.", "39. The originals of the records contained information which the applicants considered important from the point of view of their moral and physical integrity. In particular, the applicants feared that they had been subjected to an intervention affecting their reproductive status. The records would convey not only information about any such intervention, but also whether the applicants had given consent to it and in what circumstances. A typed or handwritten transcript of the records could not faithfully represent the particular features of the original records bearing, in some cases, the applicants ’ signatures. With photocopies of the records the applicants would not only be able to establish a basis for civil litigation but also to demonstrate to their families and communities, where appropriate, that their infertility was not a result of any deliberate action on their part.", "40. Finally, the applicants saw no justification for the Government ’ s argument according to which submitting transcripts of the relevant parts of the medical documents to prosecuting authorities or courts protected their privacy to a greater extent than making copies of the relevant files available.", "2. The Government", "41. The Government argued that the refusal to allow the applicants to make photocopies of their medical files had been in accordance with the relevant provisions of the Health Care Act 1994. It had been compatible with the applicants ’ right to respect for their private and family life in the circumstances. In particular, the applicants had been allowed to study all the records and to make handwritten excerpts thereof.", "42. The refusal to allow the applicants to photocopy their medical records had been justified, at the relevant time, by the State ’ s obligation to protect the relevant information from abuse. The State enjoyed a margin of appreciation in regulating similar issues. It had not been overstepped in the case of the applicants, who had not been prevented from obtaining all relevant information related to their health. The Contracting States ’ positive obligations under Article 8 did not extend to an obligation to allow persons to make photocopies of their medical records.", "43. Under the relevant law health institutions were obliged, upon a written request, to provide relevant information contained in the medical records of the person making the request, in the form of written excerpts, to police investigators, prosecutors or a court. That procedure provided the advantage that, unlike a copy of the medical file, it gave access to the relevant parts of the files without disclosing other information which was not related to the subject-matter of the proceedings.", "B. The Court ’ s assessment", "44. The complaint in issue concerns the exercise by the applicants of their right of effective access to information concerning their health and reproductive status. As such it is linked to their private and family lives within the meaning of Article 8 (see, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X, with further reference).", "45. The Court reiterates that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for one ’ s private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (see, for example, Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160 ).", "46. The existence of such a positive obligation was established by the Court, among other circumstances, where applicants sought access to information about risks to one ’ s health and well-being resulting from environmental pollution ( Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998 ‑ I ), information which would permit them to assess any risk resulting from their participation in nuclear tests ( McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III ) or tests involving exposure to toxic chemicals ( Roche v. the United Kingdom [GC], referred to above). The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information” (see, for example, Roche v. the United Kingdom [GC] cited above, § 162, with further references).", "Similarly, such a positive obligation was found to exist where applicants sought access to information to social service records containing information about their childhood and personal history (see Gaskin v. the United Kingdom, cited above and M.G. v. the United Kingdom, no. 39393/98, § 31, 24 September 2002 ).", "47. Bearing in mind that the exercise of the right under Article 8 to respect for one ’ s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007 ‑ ... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files.", "48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility.", "49. The applicants in the present case obtained judicial orders permitting them to consult their medical records in their entirety, but they were not allowed to make copies of them under the Health Care Act 1994. The point to be determined by the Court is whether in that respect the authorities of the respondent State complied with their positive obligation and, in particular, whether the reasons invoked for such a refusal were sufficiently compelling to outweigh the Article 8 right of the applicants to obtain copies of their medical records.", "50. Although it was not for the applicants to justify the requests for copies of their own medical files (see paragraph 48 above), the Court would nevertheless underline that the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant documents concerning their health. The original records, which could not be reproduced manually, contained information which the applicants considered important from the point of view of their moral and physical integrity as they suspected that they had been subjected to an intervention affecting their reproductive status.", "51. The Court also observes that the applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance. As to the latter point, it cannot be overlooked that the medical file of one of the applicants had actually been lost (see paragraph 2 7 above).", "52. The national courts mainly justified the prohibition on making copies of medical records by the need to protect the relevant information from abuse. The Government relied on the Contracting States ’ margin of appreciation in similar matters and considered that the Slovak authorities had complied with their obligations under Article 8 by allowing the applicants or their representatives to study all the records and to make handwritten excerpts thereof.", "53. The arguments put forward by the domestic courts and the Government are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8, to outweigh the applicants ’ right to obtain copies of their medical records.", "54. In particular, the Court does not see how the applicants, who had in any event been given access to the entirety of their medical files, could abuse information concerning their own persons by making photocopies of the relevant documents.", "55. As to the argument relating to possible abuse of the information by third persons, the Court has previously found that protection of medical data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention and that respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention (see I. v. Finland, no. 20511/03, § 38, 17 July 2008 ).", "56. However, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants. For example, communication or disclosure of personal health data that may be inconsistent with the guarantees in Article 8 of the Convention can be prevented by means such as incorporation in domestic law of appropriate safeguards with a view to strictly limiting the circumstances under which such data can be disclosed and the scope of persons entitled to accede to the files (see also Z v. Finland, judgment of 25 February 1997, Reports 1997-I, §§ 95-96).", "57. The fact that the Health Care Act 2004 repealed the relevant provision of the Health Care Act 1994 and explicitly provides for the possibility for patients or persons authorised by them to make copies of medical records is in line with the above conclusion. That legislative change, although welcomed, cannot affect the position in the case under consideration.", "58. There has therefore been a failure to fulfil the positive obligation to ensure effective respect for the applicants ’ private and family lives in breach of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "59. The applicants complained that their right of access to a court had been violated as a result of the refusal to provide them with copies of their medical records. They relied on Article 6 § 1 of the Convention, which in its relevant part provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”", "60. The applicants argued that they had been barred from having effective access to their medical records and from securing the evidence included in those records by means of photocopies. Having copies of the files was important for later civil litigation concerning any possible claims for damages on their part and for compliance with the burden of proof, which would be incumbent on the applicants as plaintiffs.", "61. Obtaining copies of the medical records was essential for an assessment, with the assistance of independent medical experts of the applicants ’ choice, of the position in their cases and of the prospects of success of any future civil actions. The latter element was important because the applicants, who were living on social benefits, would be ordered to reimburse the other party ’ s costs if the courts dismissed their action.", "62. The applicants considered that they could not obtain redress by means of asking a court under Article 78 of the Code of Civil Procedure to secure the files as evidence in the proceedings. They relied on section 16(5) of the Health Care Act 1994, which allowed courts to receive information from medical records exclusively in the form of excerpts but not the records as such or their copies. The domestic courts were thus unable to directly check any inconsistency in the applicants ’ medical records.", "63. The Government referred to the conclusions reached by the Constitutional Court on 8 December 2004. Consulting and making excerpts from the medical documents had provided the applicants with a sufficient opportunity to assess the position in their cases and initiate civil proceedings if appropriate. The relevant provisions of the Code of Civil Procedure included guarantees for the applicants to be able effectively to seek redress before the courts in respect of any infringement of their rights which they might establish during the consultation of their medical records. The use of excerpts of the files had the advantage of protecting confidential information and personal data which had no bearing on the litigation in issue.", "64. The Court reiterates that the right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. It secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. Where the individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).", "65. The Court accepts the applicants ’ argument that they had been in a state of uncertainty as regards their health and reproductive status following their treatment in the two hospitals concerned and that obtaining the relevant evidence, in particular in the form of photocopies, was essential for an assessment of the position in their cases from the perspective of effectively seeking redress before the courts in respect of any shortcomings in their medical treatment.", "66. The protection of a person ’ s rights under Article 6 requires, in the Court ’ s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification.", "67. It is true that the statutory bar at the material time on the making available of copies of the records did not entirely bar the applicants from bringing a civil action on the basis of information obtained in the course of the consultation of their files. However, the Court considers that section 16(6) of the Health Care Act 1994 imposed a disproportionate limitation on their ability to present their cases to a court in an effective manner. It is relevant in this respect that the applicants considered the original form of the records, which could not be reproduced manually and which, in accordance with the above-cited provision, could not be made available to either the applicants or the courts (compare and contrast in this connection the McGinley and Egan case (cited above, § 90)), decisive for the determination of their cases.", "68. When examining the facts of the case under Article 8 of the Convention the Court has found no sufficiently strong justification for preventing the applicants from obtaining copies of their medical records. For similar reasons, that restriction cannot be considered compatible with an effective exercise by the applicants of their right of access to a court.", "69. There has therefore been a violation of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "70. The applicants complained that they had no effective remedy at their disposal in respect of their above complaints under Article 8 and Article 6 § 1 of the Convention. They alleged a violation of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "71. The Government argued that the applicants had at their disposal an effective remedy, namely a complaint under Article 127 of the Constitution.", "A. Alleged violation of Article 13 in conjunction with Article 8", "72. The Court recalls that Article 13 does not guarantee a remedy whereby a law as such can be challenged before a domestic organ (see M.A. and 34 Others v. Finland ( dec .), no. 7793/95, 10 June 2003). It follows from the terms of the applicants ’ submissions that it is basically the legislation as such which they attack. However, as stated above, Article 13 does not guarantee a remedy for such complaints.", "In these circumstances, the Court concludes that there has been no violation of Article 13 taken together with Article 8 of the Convention.", "B. Alleged violation of Article 13 in conjunction with Article 6 § 1", "73. In view of its conclusion in relation to Article 6 § 1 (see paragraph 69 above), the Court does not consider it necessary to examine separately the complaint in relation to Article 13, the requirements of which are less strict than and absorbed by those of Article 6 § 1 in this case (see also McGinley and Egan v. the United Kingdom referred to above, § 106).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "74. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "75. The eight applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. They submitted that they had been unable to obtain photocopies of their medical records for three years, as a result of which they had experienced anxiety about the state of their health and reproductive abilities. Their personal lives had been thereby affected.", "76. The Government considered that claim to be excessive.", "77. The Court accepts that the applicants suffered non-pecuniary damage which cannot be remedied by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards each of the eight applicants EUR 3, 5 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "78. The applicants claimed EUR 6,042 for their representation in the domestic proceedings by Mrs V. Durbáková and the Centre for Civil and Human Rights in Košice. They claimed a total of EUR 11,600 in respect of the proceedings before the Court. Finally, the applicants claimed EUR 812 in respect of the administrative costs of their legal representatives (preparation of legal documents, photocopying, telephone calls, sending of faxes and postage) and EUR 1,127.50 for translation of documents and expenses incurred in correspondence with the Court.", "79. The Government considered that the claims relating to the applicants ’ representation and the administrative costs were overstated. They had no objection to the sums claimed in respect of translation costs and international postage.", "80. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Rule 60 and, among other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 - VIII).", "81. Having regard to the documents submitted, the number of applicants, the scope of the proceedings at both national level and before the Court and the fact that the applicants were only partly successful in the Convention proceedings, the Court awards the applicants a total of EUR 8,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants.", "C. Default interest", "82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are eight female Slovakian nationals of Roma ethnic origin.", "A. Background to the case", "7. The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries. Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital, when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents.", "8. The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice. The lawyers were authorised to review and photocopy the women ’ s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence were not destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights.", "9. The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002. The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so.", "10. On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted.", "B. Civil proceedings", "11. The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records.", "1. Action against the J. A. Reiman University Hospital in Prešov", "12. Six applicants brought an action against the J.A. Reiman University Hospital ( Fakultná nemocnica J. A. Reimana ) in Prešov ( “the Prešov Hospital ”) on 13 January 2003.", "13. On 18 June 2003 the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003.", "14. With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse. It was not contrary to the plaintiffs ’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment.", "15. On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. There was no indication that the applicants ’ right to have any future claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised. In particular, under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient ’ s claim for damages.", "2. Action against the Health Care Centre in Krompachy", "16. H.M. and V. Ž., the two remaining applicants, brought an identical action against the Health Care Centre ( Nemocnica s poliklinikou ) in Krompachy (“the Krompachy Hospital ”) on 13 January 2003.", "17. On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants ’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein.", "18. The applicants appealed against the decision concerning the photocopying of the documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages.", "19. On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records.", "C. Constitutional proceedings", "1. Complaint of 24 May 2004", "20. On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital, the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention.", "21. As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could. However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State, to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies. This would enable an independent expert, possibly abroad, to examine them, and also provide a safeguard in the event of the possible destruction of the originals.", "22. Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them.", "23. On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 of the Convention in the proceedings leading to the Regional Court ’ s judgment of 17 February 2004. As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting interests. Reference was made to the explanatory report to that Act. Furthermore, Article 8 of the Convention did not encompass a right to make photocopies of medical documents.", "2. Complaint of 25 June 2004", "24. On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court ’ s judgment of 24 March 2004.", "25. On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint as being premature. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court ’ s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned.", "D. Subsequent developments", "26. Subsequently seven applicants were able to access their files and to make photocopies thereof under the newly introduced Health Care Act 2004 (see paragraph 35 below) in circumstances which are set out in the decision on the admissibility of the present application.", "27. As regards the eighth applicant, Ms J. H., the Prešov Hospital only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure. On 22 May 2006 the Director of the Prešov Hospital informed the applicant that her complete medical file had not been located and that it was considered lost. On 31 May 2007 the Ministry of Health admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure the proper keeping of the medical file of Ms J. H.", "III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA", "36. Point 8 of the Recommendation adopted on 13 February 1997 deals with the rights of persons whose medical data have been collected. The relevant part provides:", "“ Rights of access and of rectification", "8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form.", "8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if:", "a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ... ”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Code of Civil Procedure", "28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated.", "29. Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons ’ rights.", "30. Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later.", "31. Article 79 § 2 obliges a plaintiff to submit the documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons.", "32. Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court. Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue.", "B. Health Care Act 1994", "33. Until 31 December 2004, the following provisions of Health Care Act 277/1994 ( Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force:", "“Section 16 – Medical records", "1. The keeping of medical records shall form an inseparable part of health care.", "2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ...", "3. Medical records shall be archived for a period of 50 years after the patient ’ s death. ...", "5. A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities.", "6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ...", "8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ...", "11. An excerpt from a person ’ s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.”", "34. The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows:", "“Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.”", "C. Health Care Act 2004", "35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows:", "“Section 25 – Access to data included in medical records", "1. Data included in medical records shall be made available by means of consultation of the medical records to:", "(a) the person concerned or his or her legal representative, without any restriction; ...", "(c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ...", "(g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ...", "2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "37. The applicants complained that they had been unable to obtain photocopies of their medical records under the Health Care Act 1994. They relied on Article 8 of the Convention, which in its relevant part provides:", "“1. Everyone has the right to respect for his private and family life, ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicants", "38. The applicants maintained that the mere possibility of consulting the files and making handwritten excerpts thereof did not provide them with effective access to the relevant documents concerning their health. In particular, medical records contained charts, graphs, drawings and other data which could not be properly reproduced through handwritten notes. They were voluminous as a rule and their transcript by hand was not only insufficient but also time consuming and burdensome.", "39. The originals of the records contained information which the applicants considered important from the point of view of their moral and physical integrity. In particular, the applicants feared that they had been subjected to an intervention affecting their reproductive status. The records would convey not only information about any such intervention, but also whether the applicants had given consent to it and in what circumstances. A typed or handwritten transcript of the records could not faithfully represent the particular features of the original records bearing, in some cases, the applicants ’ signatures. With photocopies of the records the applicants would not only be able to establish a basis for civil litigation but also to demonstrate to their families and communities, where appropriate, that their infertility was not a result of any deliberate action on their part.", "40. Finally, the applicants saw no justification for the Government ’ s argument according to which submitting transcripts of the relevant parts of the medical documents to prosecuting authorities or courts protected their privacy to a greater extent than making copies of the relevant files available.", "2. The Government", "41. The Government argued that the refusal to allow the applicants to make photocopies of their medical files had been in accordance with the relevant provisions of the Health Care Act 1994. It had been compatible with the applicants ’ right to respect for their private and family life in the circumstances. In particular, the applicants had been allowed to study all the records and to make handwritten excerpts thereof.", "42. The refusal to allow the applicants to photocopy their medical records had been justified, at the relevant time, by the State ’ s obligation to protect the relevant information from abuse. The State enjoyed a margin of appreciation in regulating similar issues. It had not been overstepped in the case of the applicants, who had not been prevented from obtaining all relevant information related to their health. The Contracting States ’ positive obligations under Article 8 did not extend to an obligation to allow persons to make photocopies of their medical records.", "43. Under the relevant law health institutions were obliged, upon a written request, to provide relevant information contained in the medical records of the person making the request, in the form of written excerpts, to police investigators, prosecutors or a court. That procedure provided the advantage that, unlike a copy of the medical file, it gave access to the relevant parts of the files without disclosing other information which was not related to the subject-matter of the proceedings.", "B. The Court ’ s assessment", "44. The complaint in issue concerns the exercise by the applicants of their right of effective access to information concerning their health and reproductive status. As such it is linked to their private and family lives within the meaning of Article 8 (see, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X, with further reference).", "45. The Court reiterates that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for one ’ s private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (see, for example, Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160 ).", "46. The existence of such a positive obligation was established by the Court, among other circumstances, where applicants sought access to information about risks to one ’ s health and well-being resulting from environmental pollution ( Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998 ‑ I ), information which would permit them to assess any risk resulting from their participation in nuclear tests ( McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III ) or tests involving exposure to toxic chemicals ( Roche v. the United Kingdom [GC], referred to above). The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information” (see, for example, Roche v. the United Kingdom [GC] cited above, § 162, with further references).", "Similarly, such a positive obligation was found to exist where applicants sought access to information to social service records containing information about their childhood and personal history (see Gaskin v. the United Kingdom, cited above and M.G. v. the United Kingdom, no. 39393/98, § 31, 24 September 2002 ).", "47. Bearing in mind that the exercise of the right under Article 8 to respect for one ’ s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007 ‑ ... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files.", "48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility.", "49. The applicants in the present case obtained judicial orders permitting them to consult their medical records in their entirety, but they were not allowed to make copies of them under the Health Care Act 1994. The point to be determined by the Court is whether in that respect the authorities of the respondent State complied with their positive obligation and, in particular, whether the reasons invoked for such a refusal were sufficiently compelling to outweigh the Article 8 right of the applicants to obtain copies of their medical records.", "50. Although it was not for the applicants to justify the requests for copies of their own medical files (see paragraph 48 above), the Court would nevertheless underline that the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant documents concerning their health. The original records, which could not be reproduced manually, contained information which the applicants considered important from the point of view of their moral and physical integrity as they suspected that they had been subjected to an intervention affecting their reproductive status.", "51. The Court also observes that the applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance. As to the latter point, it cannot be overlooked that the medical file of one of the applicants had actually been lost (see paragraph 2 7 above).", "52. The national courts mainly justified the prohibition on making copies of medical records by the need to protect the relevant information from abuse. The Government relied on the Contracting States ’ margin of appreciation in similar matters and considered that the Slovak authorities had complied with their obligations under Article 8 by allowing the applicants or their representatives to study all the records and to make handwritten excerpts thereof.", "53. The arguments put forward by the domestic courts and the Government are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8, to outweigh the applicants ’ right to obtain copies of their medical records.", "54. In particular, the Court does not see how the applicants, who had in any event been given access to the entirety of their medical files, could abuse information concerning their own persons by making photocopies of the relevant documents.", "55. As to the argument relating to possible abuse of the information by third persons, the Court has previously found that protection of medical data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention and that respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention (see I. v. Finland, no. 20511/03, § 38, 17 July 2008 ).", "56. However, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants. For example, communication or disclosure of personal health data that may be inconsistent with the guarantees in Article 8 of the Convention can be prevented by means such as incorporation in domestic law of appropriate safeguards with a view to strictly limiting the circumstances under which such data can be disclosed and the scope of persons entitled to accede to the files (see also Z v. Finland, judgment of 25 February 1997, Reports 1997-I, §§ 95-96).", "57. The fact that the Health Care Act 2004 repealed the relevant provision of the Health Care Act 1994 and explicitly provides for the possibility for patients or persons authorised by them to make copies of medical records is in line with the above conclusion. That legislative change, although welcomed, cannot affect the position in the case under consideration.", "58. There has therefore been a failure to fulfil the positive obligation to ensure effective respect for the applicants ’ private and family lives in breach of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "59. The applicants complained that their right of access to a court had been violated as a result of the refusal to provide them with copies of their medical records. They relied on Article 6 § 1 of the Convention, which in its relevant part provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”", "60. The applicants argued that they had been barred from having effective access to their medical records and from securing the evidence included in those records by means of photocopies. Having copies of the files was important for later civil litigation concerning any possible claims for damages on their part and for compliance with the burden of proof, which would be incumbent on the applicants as plaintiffs.", "61. Obtaining copies of the medical records was essential for an assessment, with the assistance of independent medical experts of the applicants ’ choice, of the position in their cases and of the prospects of success of any future civil actions. The latter element was important because the applicants, who were living on social benefits, would be ordered to reimburse the other party ’ s costs if the courts dismissed their action.", "62. The applicants considered that they could not obtain redress by means of asking a court under Article 78 of the Code of Civil Procedure to secure the files as evidence in the proceedings. They relied on section 16(5) of the Health Care Act 1994, which allowed courts to receive information from medical records exclusively in the form of excerpts but not the records as such or their copies. The domestic courts were thus unable to directly check any inconsistency in the applicants ’ medical records.", "63. The Government referred to the conclusions reached by the Constitutional Court on 8 December 2004. Consulting and making excerpts from the medical documents had provided the applicants with a sufficient opportunity to assess the position in their cases and initiate civil proceedings if appropriate. The relevant provisions of the Code of Civil Procedure included guarantees for the applicants to be able effectively to seek redress before the courts in respect of any infringement of their rights which they might establish during the consultation of their medical records. The use of excerpts of the files had the advantage of protecting confidential information and personal data which had no bearing on the litigation in issue.", "64. The Court reiterates that the right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. It secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. Where the individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).", "65. The Court accepts the applicants ’ argument that they had been in a state of uncertainty as regards their health and reproductive status following their treatment in the two hospitals concerned and that obtaining the relevant evidence, in particular in the form of photocopies, was essential for an assessment of the position in their cases from the perspective of effectively seeking redress before the courts in respect of any shortcomings in their medical treatment.", "66. The protection of a person ’ s rights under Article 6 requires, in the Court ’ s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification.", "67. It is true that the statutory bar at the material time on the making available of copies of the records did not entirely bar the applicants from bringing a civil action on the basis of information obtained in the course of the consultation of their files. However, the Court considers that section 16(6) of the Health Care Act 1994 imposed a disproportionate limitation on their ability to present their cases to a court in an effective manner. It is relevant in this respect that the applicants considered the original form of the records, which could not be reproduced manually and which, in accordance with the above-cited provision, could not be made available to either the applicants or the courts (compare and contrast in this connection the McGinley and Egan case (cited above, § 90)), decisive for the determination of their cases.", "68. When examining the facts of the case under Article 8 of the Convention the Court has found no sufficiently strong justification for preventing the applicants from obtaining copies of their medical records. For similar reasons, that restriction cannot be considered compatible with an effective exercise by the applicants of their right of access to a court.", "69. There has therefore been a violation of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "70. The applicants complained that they had no effective remedy at their disposal in respect of their above complaints under Article 8 and Article 6 § 1 of the Convention. They alleged a violation of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "71. The Government argued that the applicants had at their disposal an effective remedy, namely a complaint under Article 127 of the Constitution.", "A. Alleged violation of Article 13 in conjunction with Article 8", "72. The Court recalls that Article 13 does not guarantee a remedy whereby a law as such can be challenged before a domestic organ (see M.A. and 34 Others v. Finland ( dec .), no. 7793/95, 10 June 2003). It follows from the terms of the applicants ’ submissions that it is basically the legislation as such which they attack. However, as stated above, Article 13 does not guarantee a remedy for such complaints.", "In these circumstances, the Court concludes that there has been no violation of Article 13 taken together with Article 8 of the Convention.", "B. Alleged violation of Article 13 in conjunction with Article 6 § 1", "73. In view of its conclusion in relation to Article 6 § 1 (see paragraph 69 above), the Court does not consider it necessary to examine separately the complaint in relation to Article 13, the requirements of which are less strict than and absorbed by those of Article 6 § 1 in this case (see also McGinley and Egan v. the United Kingdom referred to above, § 106).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "74. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "75. The eight applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. They submitted that they had been unable to obtain photocopies of their medical records for three years, as a result of which they had experienced anxiety about the state of their health and reproductive abilities. Their personal lives had been thereby affected.", "76. The Government considered that claim to be excessive.", "77. The Court accepts that the applicants suffered non-pecuniary damage which cannot be remedied by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards each of the eight applicants EUR 3, 5 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "78. The applicants claimed EUR 6,042 for their representation in the domestic proceedings by Mrs V. Durbáková and the Centre for Civil and Human Rights in Košice. They claimed a total of EUR 11,600 in respect of the proceedings before the Court. Finally, the applicants claimed EUR 812 in respect of the administrative costs of their legal representatives (preparation of legal documents, photocopying, telephone calls, sending of faxes and postage) and EUR 1,127.50 for translation of documents and expenses incurred in correspondence with the Court.", "79. The Government considered that the claims relating to the applicants ’ representation and the administrative costs were overstated. They had no objection to the sums claimed in respect of translation costs and international postage.", "80. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Rule 60 and, among other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 - VIII).", "81. Having regard to the documents submitted, the number of applicants, the scope of the proceedings at both national level and before the Court and the fact that the applicants were only partly successful in the Convention proceedings, the Court awards the applicants a total of EUR 8,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants.", "C. Default interest", "82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant, who is of Roma ethnic origin, was born in 1980 and lives in Jarovnice. She finished compulsory education in the sixth grade and is unemployed. Her mother tongue is the Roma language, which she uses in daily communication, together with a local dialect.", "A. The applicant’s sterilisation in Prešov Hospital", "9. On 23 August 2000 the applicant was sterilised while hospitalised at the Hospital and Health Care Centre in Prešov (now known as the University Teaching Hospital and J.A. Reiman Health Care Centre in Prešov –“Prešov Hospital”), which came under the management of the Ministry of Health.", "10. The procedure was carried out during the delivery of the applicant’s second child via Caesarean section. The applicant’s first delivery had also been via Caesarean section. The sterilisation of the applicant entailed tubal ligation by the Pomeroy method, which consists of severing and sealing the Fallopian tubes in order to prevent fertilisation.", "11. During her pregnancy the applicant did not have any regular check ‑ ups. She visited her general practitioner only once.", "12. The applicant was admitted to the gynaecology and obstetrics department of Prešov Hospital on 23 August 2000 shortly before 8 a.m. She came to the hospital in pain resulting from the progress of labour. On arrival the applicant was informed that the delivery would be via Caesarean section.", "13. The delivery was documented in a written record indicating details of the labour and birth at regular intervals. The first entry in the record was at 7.52 a.m. The applicant was subsequently monitored by CTG (cardiotocography); the last CTG entry was at 10.35 a.m.", "14. According to the delivery record, after 10.30 a.m., when labour was well established, the applicant requested sterilisation. That request is entered directly in the delivery record with the typed words “Patient requests sterilisation”. Below this is the shaky signature of the applicant. The signature was in an unsteady hand and the applicant’s maiden name, which she used at the time, is split into two words.", "15. The applicant submitted that, after she had been in labour for several hours and was in pain, the medical personnel of Prešov Hospital had asked her whether she wanted to have more children. The applicant responded in the affirmative but was told by the medical personnel that if she had one more child, either she or the baby would die. The applicant started to cry and as she was convinced that her next pregnancy would be fatal, she told the medical personnel “Do what you want to do”. She was then asked to sign the delivery record under the note indicating that she had requested sterilisation. The applicant did not understand the term sterilisation and she signed the form out of fear that there would otherwise be fatal consequences. As she was in the last stage of labour, her recognition and cognitive abilities were influenced by labour and pain.", "16. At 11.30 a.m. the applicant was put under anaesthesia, after which the delivery was completed via Caesarean section. In view of the state of the applicant’s reproductive organs the two doctors involved asked the head physician for an opinion as to whether they should perform a hysterectomy or a sterilisation. They subsequently performed tubal ligation on the applicant. The procedure ended at 12.10 p.m. and the applicant came round from the anaesthetic ten minutes later.", "17. The words “Patient is of Roma origin” appear in the record of the applicant’s pregnancy and delivery (section “Medical history”, sub-section “Social and working conditions, especially during the pregnancy” of the pre-printed form designed for that purpose).", "18. During her hospitalisation on the gynaecology and obstetrics ward of Prešov Hospital the applicant was accommodated in a room in which there were exclusively women of Roma ethnic origin. She was prevented from using the same bathrooms and toilets as women who were not of Roma origin.", "19. The applicant has suffered serious medical and psychological after ‑ effects from the sterilisation procedure. Hence, at the end of 2007 and the beginning of 2008 she displayed the symptoms of a false pregnancy. She believed that she was pregnant and exhibited all the signs of pregnancy. However, the ultrasound examination revealed that she was not pregnant. Subsequently, in July 2008, she was treated by a psychiatrist in Sabinov. According to the latter’s statement, the applicant continues to suffer as the result of her infertility.", "20. The applicant has also been ostracised by the Roma community. Her husband, the father of her children, left her several times owing to her infertility. In 2009 the applicant and her husband divorced. The applicant maintained that her infertility was one of the reasons for their separation.", "B. Position of Prešov Hospital", "21. A written statement by the Director of Prešov Hospital dated 3 July 2008 indicates that the applicant’s first delivery in 1998 ended with a Caesarean section as the size of the applicant’s pelvis excluded a normal delivery. Prior to the delivery the applicant had attended a pre-natal care centre only twice, at the beginning of her pregnancy. After the delivery she was placed in a post-delivery room with sanitary equipment where she received medical care. On the third day she left the hospital without doctors’ consent and returned 24 hours later with sepsis caused by inflammation of the uterus. After nine days’ hospitalisation during which she received intensive treatment with antibiotics the applicant and her child were discharged from the hospital. The applicant was advised to visit a gynaecologist regularly but failed to do so.", "22. During her second pregnancy, the applicant visited the pre-natal care centre only once, in the initial stages. At the time of the second delivery, owing to pain which the applicant experienced in the lower part of her uterus (where she had been operated on during her first delivery) and in view of the size of her pelvis, doctors indicated that a Caesarean section would be needed. They were of the view that there was a risk of rupture of the uterus. After they had explained to her the situation and the risks inherent in a possible third pregnancy, the applicant, who was fully aware of what was happening, signed the sterilisation request.", "23. In a different statement dated 27 July 2009 the Director of Prešov Hospital denied deliberate and organised segregation of Roma women and the existence of so called “Gypsy rooms”. In practice, Roma women were frequently accommodated together at their own request.", "C. Criminal proceedings", "24. On 23 January 2003, in response to the publication by the Centre for Reproductive Rights and the Centre for Civil and Human Rights of “Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia” (“the Body and Soul Report”), the Section for Human Rights and Minorities of the Government Office initiated a criminal investigation into the allegedly unlawful sterilisation of several different Roma women.", "25. The criminal investigation was conducted within the Regional Directorate of the Police Corps in Žilina by the Office of the Judicial and Criminal Police. Several decisions were issued by the investigator, public prosecutors at several levels and the Constitutional Court. The proceedings were ultimately discontinued on the ground that no offence had been committed in the context of the sterilisation of women of Roma ethnic origin (further details are set out in I.G., M.K. and R.H. v. Slovakia (dec.), no. 15966/04, 22 September 2009).", "26. The applicant did not initiate any individual criminal proceedings.", "D. Civil proceedings", "27. In January 2003, after the release of the Body and Soul Report, the applicant learned that a tubal ligation was not life-saving surgery as alleged by the medical personnel of Prešov Hospital and that the patient’s full and informed consent to such a procedure was required. For this reason, she unsuccessfully tried to review her medical records. She was allowed access to her medical file with her lawyer in May 2004 following a judicial order to that effect.", "28. On 9 September 2004 the applicant lodged a claim with the Prešov District Court under Articles 11 et seq. of the Civil Code, seeking protection of her personal rights. She submitted that the sterilisation performed on her had been carried out in violation of Slovakian legislation and international human rights standards including Articles 3, 8, 12 and 14 of the Convention. The applicant argued that she had not been duly informed about the procedure as such, its consequences and alternative solutions. She requested an apology for the procedure and claimed compensation for non-pecuniary damage.", "29. In the course of the proceedings the District Court considered documentary evidence and obtained a number of statements from the applicant as well as from the medical personnel of Prešov Hospital.", "30. In particular, the applicant described the circumstances in which she had given birth in Prešov Hospital and how she had been asked to sign the relevant entry in the record. She also stated that the father of her children had left her for two years owing to her infertility and that they had experienced problems in their relationship for that reason. She outlined the health problems which she was experiencing.", "31. Doctor Č. of Prešov Hospital, who had performed the procedure on the applicant, stated that he did not specifically remember the applicant or the circumstances of her hospitalisation. His statement was based on the information in the applicant’s medical file. He alleged that the applicant had been fully informed about her medical condition and the progress of the labour approximately ninety minutes prior to the delivery. The information about the need for sterilisation had been conveyed to her by the head doctor of the gynaecology and obstetrics ward, as well as the second doctor who had participated in the surgery, and also by the anaesthetist. The sterilisation had been carried out at the applicant’s request as a medical necessity. A possible third pregnancy could have been risky for the applicant unless she was monitored regularly during the pregnancy. Doctor Č. stated that the sterilisation of the applicant had not been life-saving surgery.", "32. Doctor K., head doctor of the gynaecology and obstetrics ward of Prešov Hospital, stated that he fully agreed with the testimony of Doctor Č. Doctor K. did not specifically recall the case of the applicant either. He assumed that her case was the same as other similar cases. He had not been present during the delivery and the sterilisation of the applicant but had been told about her case by other doctors. He described the sterilisation procedure as governed by the relevant law. In the case of the applicant, there had been no time to convene any committee as she had come to the hospital a very short time before delivery.", "33. Doctor K. further stated that, after he had designated his colleagues Š. and Č. to perform the surgery, he had also asked them to find out whether the patient would agree to sterilisation, and to have her consent confirmed by a signature. Even if a patient refused to give written consent to sterilisation, it could be carried out under section 2 of the 1972 Sterilisation Regulation, which permitted such a move in the case of danger to a person’s life.", "34. In the civil proceedings, the applicant also submitted a psychologist’s assessment of her mental capacity dated 17 February 2006. It indicated that her intellectual capacity was very low, on the verge of mental retardation, but that her thinking was well developed in relation to practical issues. The psychologist concluded that communication with the applicant needed to be adapted to her mental and language skills. No mental illness was detected that would prevent the applicant from making decisions concerning her life and assuming responsibility for matters related to her life.", "35. On 28 February 2006 the Prešov District Court dismissed the action. It held that the procedure had been performed only after the medical personnel had obtained the applicant’s signature. It admitted that the applicant’s signature on the delivery record had been obtained shortly before the Caesarean section was performed, when the applicant had been in “a supine position”. The procedure had been performed on medical grounds. It had been necessary owing to the applicant’s poor medical condition. The medical personnel had proceeded in accordance with the law.", "36. The fact that the procedure had not been approved earlier by a sterilisation committee amounted only to a failure to meet the formal requirements; it could not have interfered with the applicant’s personal integrity as protected by Articles 11 et seq. of the Civil Code. No violation of the applicant’s rights under the Convention had been established.", "37. Finally, the District Court held that the applicant’s situation was not irreversible as there was a possibility of in vitro fertilisation.", "38. On 12 May 2006 the applicant appealed. She maintained that she had been sterilised without her full and informed consent in a situation where she had not been able to understand fully the nature and consequences of the procedure. There were gaps and inconsistencies in the statements of the medical personnel and the medical file contained no record of her having been duly informed about the procedure, its irreversible character and the alternative methods. In violation of the legislation in force the sterilisation had not been approved by a sterilisation committee. A tubal ligation could not be considered as life-saving surgery. The applicant relied on documents issued by international medical organisations.", "39. On 25 October 2006 the Prešov Regional Court upheld the first ‑ instance judgment. It concluded that the applicant’s sterilisation had been performed in accordance with the legislation in force and that it had been required by her medical condition.", "40. The appellate court referred to the statements by the physicians involved and held that there had been a risk of rupture of the applicant’s uterus. The applicant had requested sterilisation after she had been duly informed of her state of health. The procedure had complied with the relevant provisions of the 1972 Sterilisation Regulation. The decision as to whether or not sterilisation was required lay in such circumstances with the head physician. Prior approval by a sterilisation committee was required only where sterilisation was to be carried out on healthy reproductive organs. However, this had not been the case with the applicant.", "E. Constitutional proceedings", "41. On 17 January 2007 the applicant lodged a complaint with the Constitutional Court. With reference to her sterilisation and the ordinary courts’ conclusions in the above-mentioned civil proceedings, she submitted that she had been subjected to sterilisation in Prešov Hospital without her informed consent and that she had been unable to obtain redress as a result of the conduct and decision of the Prešov Regional Court. She alleged that the latter had thereby breached her constitutional rights and freedoms prohibiting discrimination and cruel, inhuman or degrading treatment or punishment, her right to protection from unjustified interference with her private and family life and her right to protection of her family, as well as her rights under Articles 3, 8, 12, 13 and 14 of the European Convention on Human Rights and Article 5 of the Convention on Human Rights and Biomedicine. The applicant requested that the Constitutional Court quash the Regional Court’s judgment.", "42. On 14 February 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded (for further details see the decision on the admissibility of the present application of 16 June 2009).", "F. Accounts of sterilisation practices in Slovakia", "1. Information submitted by the applicant", "43. The applicant referred to a number of publications pointing to a history of forced sterilisation of Roma women which had originated under the communist regime in Czechoslovakia in the early 1970s and which she believed had influenced her own sterilisation.", "44. In particular, the applicant submitted that the Ministry of Health’s 1972 Sterilisation Regulation had been used to encourage the sterilisation of Roma women. According to a 1979 document by Charter 77, a Czechoslovakian dissident group, a programme had been launched in Czechoslovakia offering financial incentives for Roma women to be sterilised because of earlier unsuccessful government efforts “to control the highly unhealthy Roma population through family planning and contraception.”", "45. The applicant further maintained that in Prešov District 60% of the sterilisation operations performed from 1986 to 1987 had been on Roma women, who represented only 7% of the population of the district. Another study found that in 1983 approximately 26% of sterilised women in eastern Slovakia (the region where the applicant resides) were Roma; by 1987, this figure had risen to 36.6%.", "46. In 1992 a report by Human Rights Watch noted that many Roma women were not fully aware of the irreversible nature of the procedure and were forced into it because of their poor economic situation or pressure from the authorities.", "47. According to other reports, in 1999 nurses working in Finnish refugee reception centres informed researchers from Amnesty International that they had noticed unusually high rates of gynaecological procedures such as sterilisation and removal of ovaries among female Roma asylum ‑ seekers from eastern Slovakia. All the reports cited identified Prešov Hospital as one of the hospitals where such sterilisation practices were applied. [1]", "2. Information submitted by the respondent Government", "48. The Government submitted that health care in Slovakia was provided to all women equally. Statistical data based on the ethnic origin of patients were generally not gathered as this was considered to be contrary to persons’ human rights.", "49. Following the publication of the Body and Soul Report the Ministry of Health established a group of experts with a view to investigating allegedly unlawful sterilisations and segregation of Roma women.", "50. The Ministry’s report of 28 May 2003, submitted to the parliamentary committee on human rights, nationalities and the status of women, indicated that the medical records of 3,500 women who had been sterilised and those of 18,000 women who had given birth by means of Caesarean section during the preceding ten years had been reviewed.", "51. The rate of sterilisation of women in Slovakia amounted to only 0.1% of women of reproductive age. In other European countries that rate was between 20 and 40%. The low rate of sterilisation in Slovakia was mainly due to the fact that the procedure was not widely used as a method of contraception.", "52. In the absence of official statistical data concerning the ethnic origin of inhabitants, the expert group could assess only indirectly the position regarding women of Roma ethnic origin. In those regions where it was possible to indirectly assess the proportion of women of Roma ethnic origin, the frequency of sterilisation and Caesarean section in the Roma population was significantly lower than among the rest of the population. The frequency of sterilisations was statistically insignificantly higher in the Prešov and Košice regions than in other regions of Slovakia.", "53. The group concluded that in the hospitals investigated by its members no genocide or segregation of the Roma population had occurred. All cases of sterilisation had been based on medical indications. Certain shortcomings in health care and non-compliance with the regulations on sterilisation (such as failure to observe the administrative procedure) had been identified in several cases. However, they affected the whole population equally regardless of patients’ ethnic origin. Hospitals in which administrative errors had been discovered had adopted measures with a view to eliminating them.", "54. In none of the hospitals visited by the expert group did there exist separate rooms for Roma women; all patients received treatment within the same hospital facilities. Owing to the situation existing during the preceding decades, medical personnel and individuals were not on an equal footing with regard to responsibility for maintaining and improving individuals’ state of health. This was reflected, in particular, in limited individual rights and responsibilities in matters of health care. Measures had been recommended to ensure that individuals received the necessary information to enable them to give informed consent to their treatment or refuse it. Individual requests for medical intervention were to be made in a legally valid manner permitting the persons concerned to express their own free will after receiving the appropriate information.", "55. The measures recommended in the report consisted in the amendment of the legal rules on sterilisation with a view to ensuring compliance with, inter alia, the Convention on Human Rights and Biomedicine, which Slovakia had ratified. The report also contained a set of recommendations regarding the education of medical staff, focusing on “cultural differences in regions with an increased concentration of Roma communities”. In order to educate the Roma population in the area of health care, the Slovak Health University in Bratislava was to establish, in cooperation with the Ministry of Health, a network of health care assistants who would receive special training and operate in Roma settlements.", "56. At the hearing the Government indicated that it was open to women allegedly affected by malpractice in the context of sterilisation to claim compensation before the civil courts. According to the information available to the Government, there were five sets of proceedings of that kind pending before the Slovakian courts. Six other sets of proceedings had ended in a final decision. In three of them the claimants had been successful.", "III. INTERNATIONAL MATERIALS", "A. Council of Europe documents", "1. The Convention on Human Rights and Biomedicine", "76. The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164) was ratified by Slovakia on 15 January 1998 and entered into force in respect of Slovakia on 1 December 1999. The corresponding notification, together with the text of the Convention, were published in the Collection of Laws under number 40/2000 on 10 February 2000. The relevant provisions read as follows:", "Article 1 – Purpose and object", "“Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.", "Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.", "...”", "Article 4 – Professional standards", "“Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.”", "Chapter II – Consent", "Article 5 – General rule", "“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.", "The person concerned may freely withdraw consent at any time.", "...”", "Article 8 – Emergency situation", "“When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”", "77. The relevant parts of the Explanatory Report to the Convention on Human Rights and Biomedicine provide:", "“Article 4 – Professional standards", "...", "33. Further, a particular course of action must be judged in the light of the specific health problem raised by a given patient. In particular, an intervention must meet criteria of relevance and proportionality between the aim pursued and the means employed. Another important factor in the success of medical treatment is the patient’s confidence in his or her doctor. This confidence also determines the duties of the doctor towards the patient. An important element of these duties is the respect of the rights of the patient. The latter creates and increases mutual trust. The therapeutic alliance will be strengthened if the rights of the patient are fully respected.", "...", "Article 5 – General rule", "34. This article deals with consent and affirms at the international level an already well-established rule, that is that no one may in principle be forced to undergo an intervention without his or her consent. Human beings must therefore be able freely to give or refuse their consent to any intervention involving their person. This rule makes clear patients’ autonomy in their relationship with health care professionals and restrains the paternalist approaches which might ignore the wish of the patient. ...", "35. The patient’s consent is considered to be free and informed if it is given on the basis of objective information from the responsible health care professional as to the nature and the potential consequences of the planned intervention or of its alternatives, in the absence of any pressure from anyone. Article 5, paragraph 2, mentions the most important aspects of the information which should precede the intervention but it is not an exhaustive list: informed consent may imply, according to the circumstances, additional elements. In order for their consent to be valid the persons in question must have been informed about the relevant facts regarding the intervention being contemplated. This information must include the purpose, nature and consequences of the intervention and the risks involved. Information on the risks involved in the intervention or in alternative courses of action must cover not only the risks inherent in the type of intervention contemplated, but also any risks related to the individual characteristics of each patient, such as age or the existence of other pathologies. Requests for additional information made by patients must be adequately answered.", "36. Moreover, this information must be sufficiently clear and suitably worded for the person who is to undergo the intervention. The patient must be put in a position, through the use of terms he or she can understand, to weigh up the necessity or usefulness of the aim and methods of the intervention against its risks and the discomfort or pain it will cause.", "...", "Article 8 – Emergency situations", "56. In emergencies, doctors may be faced with a conflict of duties between their obligations to provide care and seek the patient’s consent. This article allows the practitioner to act immediately in such situations without waiting until the consent of the patient or the authorisation of the legal representative where appropriate can be given. As it departs from the general rule laid down in Articles 5 and 6, it is accompanied by conditions.", "57. First, this possibility is restricted to emergencies which prevent the practitioner from obtaining the appropriate consent... An example that might be put forward is that of a patient in a coma who is thus unable to give his consent (see also paragraph 43 above), or that of a doctor who is unable to contact an incapacitated person’s legal representative who would normally have to authorise an urgent intervention. Even in emergency situations, however, health care professionals must make every reasonable effort to determine what the patient would want.", "58. Next, the possibility is limited solely to medically necessary interventions which can not be delayed. Interventions for which a delay is acceptable are excluded. However, this possibility is not reserved for life-saving interventions.", "59. Lastly, the article specifies that the intervention must be carried out for the immediate benefit of the individual concerned.”", "2. Council of Europe Commissioner for Human Rights", "78. In his recommendation following fact-finding missions to Slovakia the Commissioner for Human Rights of the Council of Europe indicated, inter alia :", "“35. The issue of sterilizations does not appear to concern exclusively one ethnic group of the Slovak population, nor does the question of their improper performance. It is likely that vulnerable individuals from various ethnic origins have, at some stage, been exposed to the risk of sterilization without proper consent. However, for a number of factors, which are developed throughout this report, the Commissioner is convinced that the Roma population of eastern Slovakia has been at particular risk.", "36. The initiative of the authorities to investigate into the sterilization practices in the country is welcomed. The Slovak Government engaged in an open and constructive dialogue with the Commissioner concerning this difficult issue. It is also encouraging to note that the Government is considering ways of improving the country’s health care system in general, including reproductive health care, and access to it for vulnerable persons, including Roma women in particular.", "37. The Commissioner is concerned about what appears to be a widespread negative attitude towards the relatively high birth rate among the Roma as compared with other parts of the population. These concerns are often explained with worries of an increased proportion of the population living on social benefits. Such statements, particularly when pronounced by persons of authority, have the potential of further encouraging negative perceptions of the Roma among the non-Roma population. It cannot be excluded that these types of statements may have encouraged improper sterilization practices of Roma women.", "...", "50. In view of the difficulties encountered during the investigations, and limitations surrounding them, initiated by the Government, it is unlikely that they will shed full light on the sterilizations practices.", "51. However, on the basis of the information contained in the reports referred to above, and that obtained during the visit, it can reasonably be assumed that sterilizations have taken place, particularly in eastern Slovakia, without informed consent.", "52. The information available to the Commissioner does not suggest that an active or organized Government policy of improper sterilizations has existed (at least since the end of the communist regime). However, the Slovak Government has, in the view of the Commissioner, an objective responsibility in the matter for failing to put in place adequate legislation and for failing to exercise appropriate supervision of sterilization practices although allegations of improper sterilizations have been made throughout the 1990’s and early 2000. ” [2]", "79. The relevant part of the Commissioner’s follow-up report on the Slovak Republic of 29 March 2006 (CommDH(2006)5) reads as follows:", "“ 4. The involuntary sterilisation of Roma women", "...", "Development of the situation and measures taken", "33. The allegations of forced and coerced sterilizations of Roma women in Slovakia were considered as a possible grave violation of human rights and therefore taken very seriously by the Slovak Government. A considerable effort was devoted to their thorough examination. In addition to a criminal investigation, a professional medical inspection of healthcare establishments was organised and an expert opinion of the Faculty of Medicine of the Comenius University in Bratislava requested. It was not confirmed that the Slovak Government would have supported an organized discriminatory sterilizations’ policy. Legislative and practical measures were taken by the Government in order to eliminate the administrative shortcomings identified in the course of inquires and to prevent similar situations from occurring in the future.", "34. The Public Health Act, which came into effect on 1 January 2005, sought to deal with these issues by including sections on sterilisation, informed consent and access to medical records. The law was elaborated in accordance with the Council of Europe Convention on Human Rights and Biomedicine, and among other things, eliminates the deficiencies in legislation found in the course of the investigations. The law, inter alia, guarantees informed consent and requires health care professionals to provide information to patients before, for example, undergoing sterilisation. It also requires a thirty day waiting period after informed consent is given. In addition, the new law addresses the problem many individuals face in accessing their medical records. The law explicitly allows authorisation by the patient to another person, through a power of attorney, to view and photocopy their files.", "35. Women allegedly harmed by sterilisation have the right to turn to the Slovak courts with a request for compensation and it is the view of the Slovakian authorities that the existing legal framework offers them sufficient possibilities to seek compensation. Some of the cases have been concluded by rejecting the complaint or by halting proceedings. In other cases, court proceedings are still underway.", "Conclusions", "36. The Commissioner welcomes the coming into force of the Public Health Act, and its provisions on informed consent and access to medical records. These were crucial issues which the Commissioner had addressed in his Recommendation to the Slovak authorities, and he is pleased to see that the new law has explicitly addressed these problem areas.", "37. The Commissioner notes with regret that the Slovak authorities have not yet established an independent commission to provide compensation or an apology to the victims. While victims may seek redress through the court system, in these types of cases, litigation has its practical shortcomings. These include the difficult and costly nature of obtaining legal counsel, particularly, for Roma women living in marginalised communities, and the extremely high evidential standards.", "38. The Commissioner again encourages the authorities to consider creating an independent commission that might, on the examination of each case, provide effective and rapid non-judicial redress. Such redress would be given to individual applicants, who could show that appropriate procedures were not followed, without there necessarily having been intent or criminal negligence on the part of individual medical staff, but because of systemic shortcomings in the procedures permitted, and that in their particular case, sterilisation was without informed consent. Such a Commission might allow for alleged cases to be examined thoroughly, but with fewer formalities and less cost for applicants, than judicial proceedings.”", "3. ECRI reports on Slovakia", "80. The European Commission against Racism and Intolerance (ECRI) published its third report on Slovakia on 27 January 2004. The relevant parts read as follows:", "“...The Roma minority remains severely disadvantaged in most areas of life, particularly in the fields of housing, employment and education. Various strategies and measures to address these problems have not led to real, widespread and sustainable improvements, and the stated political, priority given to this issue has not been translated into adequate resources or a concerted interest and commitment on the part of all the administrative sectors involved. Public opinion towards the Roma minority remains generally negative.", "...", "Allegations of sterilisations of Roma women without their full and informed consent", "...", "93. ECRI is very concerned by reports which came to national and international attention at the beginning of 2003 claiming that Roma women have, in recent years and on an on-going basis, been subject to sterilisations in some hospitals in Eastern Slovakia without their full and informed consent. ...", "...", "Recommendations:", "96. ECRI is of the opinion that the possibility of sterilisations of Roma women without their full and informed consent necessitates immediate, extensive and thorough investigation. It seems clear to ECRI that in such investigations, attention should be focused not on whether a signed form can be produced, but on whether the women involved were fully informed of what they were signing and the actual implications of sterilisation. ...", "...", "98. ECRI also recommends that, prior to and notwithstanding the outcome of the investigation, more adequate safeguards should be put in place to forestall any further problems or lack of certainty in this area. In fact, the authorities have acknowledged there remains at present, at the legal level, some anomalies between the law in force and specific regulations issued previously. Clear, detailed and coherent regulations and instructions should thus be issued immediately to ensure that all sterilisations are being carried out in accordance with best medical knowledge, practice and procedures, including the provision of full and comprehensible information to patients about the interventions proposed to them.”", "81. In its next periodic report (fourth monitoring cycle) on Slovakia, published on 26 May 2009, ECRI concluded as follows:", "“111. ECRI notes with concern that the problems as regards investigations into allegations of sterilisations of Roma women without their full and informed consent noted in its third report remained. The authorities continued to investigate these allegations under the crime of genocide rather than, for example, under the crimes of assault or of inflicting grievous bodily harm. The angle under which these allegations were investigated thus rendered proof of a crime having been committed virtually impossible and the possibility for redress through the courts almost null. The investigations also reportedly continued to focus on the issue of consent forms being signed rather than on whether full prior information was provided. Due to these flaws, in most cases, the courts decided that the allegations were unproven. ECRI wishes to stress that at the very least, the authorities should secure legal aid to victims so that they can seek compensation through civil law.", "112. Some legislative measures have been taken to provide better legal safeguards against the practice. The Criminal Code has been amended to include the crime of “illegal sterilisation” and it provides for a thirty-day waiting period from the time the patient has given her consent before the sterilisation is carried out. Section 40 of Law No. 576/2004 Coll. on Healthcare which entered into force on 1 January 2005 provides that sterilisation can only be performed following a written request and informed written consent from a person who has been previously informed and is fully legally responsible for him/herself, or from a person who legally represents them and can provide their informed consent, or on the basis of a court decision based on a request by a legal representative. The patient information session preceding consent must be carried out according to the law and must include information on alternative methods of contraception and family planning, possible changes in life circumstances which led to the request for sterilisation, the medical consequences of sterilisation and the possibility that the sterilisation may fail.", "113. While welcoming these legislative developments, ECRI regrets that due to the above-mentioned problems in the investigations of allegations of sterilisations of Roma women without their full and informed consent, no redress has been possible for the majority of women involved.", "114. ECRI recommends that the Slovak authorities monitor all facilities which perform sterilisations to ensure that the legislative safeguards concerning this procedure are respected. It also urges the authorities to take steps to ensure that complaints filed by Roma women alleging sterilisations without their full and informed consent are duly investigated and that the victims receive proper redress.”", "B. Documents adopted within the United Nations system", "1. UN Convention on the Elimination of All Forms of Discrimination against Women", "82. The UN Convention on the Elimination of All Forms of Discrimination against Women was ratified by the former Czechoslovakia. Following the latter’s dissolution, Slovakia declared itself bound by it as from 1 January 1993. In its relevant Articles the Convention provides:", "Article 1", "“For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.", "...”", "Article 12", "“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.", "2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.", "...”", "Article 16", "“1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:", "(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;", "...”", "83. General Recommendation No. 24 adopted by the Committee on the Elimination of Discrimination against Women (CEDAW) in 1999 includes, inter alia, the following opinion and recommendations for action by the States parties to the Convention on the Elimination of All Forms of Discrimination against Women:", "“20. Women have the right to be fully informed, by properly trained personnel, of their options in agreeing to treatment or research, including likely benefits and potential adverse effects of proposed procedures and available alternatives.", "21. States parties should report on measures taken to eliminate barriers that women face in gaining access to health care services and what measures they have taken to ensure women timely and affordable access to such services. ...", "22. States parties should also report on measures taken to ensure access to quality health care services, for example, by making them acceptable to women. Acceptable services are those which are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs and perspectives. States parties should not permit forms of coercion, such as non-consensual sterilization, ... that violate women’s rights to informed consent and dignity.", "...", "31. States parties should also, in particular:", "...", "(e) Require all health services to be consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and choice;", "(f) Ensure that the training curricula of health workers includes comprehensive, mandatory, gender-sensitive courses on women’s health and human rights, in particular gender-based violence.”", "84. At its 41st session (30 June to 18 July 2008) CEDAW considered the combined second, third and fourth periodic report on Slovakia. The concluding observations contain, inter alia, the following text (CEDAW/C/SVK/CO/4):", "“44. While acknowledging the explanations given by the delegation on the alleged coerced sterilization of Roma women, and noting the recently adopted legislation on sterilization, the Committee remains concerned at information received in respect of Roma women who report having been sterilized without prior and informed consent.", "45. Recalling its views in respect of communication No. 4/2004 ( Szijjarto v. Hungary ), the Committee recommends that the State party monitor public and private health centres, including hospitals and clinics, that perform sterilization procedures so as to ensure that patients are able to provide fully informed consent before any sterilization procedure is carried out, with appropriate sanctions being available and implemented in the event of a breach. It calls upon the State party to take further measures to ensure that the relevant provisions of the Convention and the pertinent paragraphs of the Committee’s general recommendations Nos. 19 and 24 in relation to women’s reproductive health and rights are known and adhered to by all relevant personnel in public and private health centres, including hospitals and clinics. The Committee recommends that the State party take all necessary measures to ensure that the complaints filed by Roma women on grounds of coerced sterilization are duly acknowledged and that victims of such practices are granted effective remedies.”", "2. WHO Declaration on the Promotion of Patients’ Rights in Europe", "85. The World Health Organisation (WHO) European consultation meeting on the rights of patients, held in Amsterdam in March 1994, endorsed a document entitled “Principles of the rights of patients in Europe” as a set of principles for the promotion and implementation of patients’ rights in the European Member States of the WHO. Its relevant parts read as follows:", "“2. INFORMATION", "2.2 Patients have the right to be fully informed about their health status, including the medical facts about their condition; about the proposed medical procedures, together with the potential risks and benefits of each procedure; about alternatives to the proposed procedures, including the effect of non-treatment; and about the diagnosis, prognosis and progress of treatment.", "...", "2.4 Information must be communicated to the patient in a way appropriate to the latter’s capacity for understanding, minimizing the use of unfamiliar technical terminology. ...", "...", "3. CONSENT", "3.1 The informed consent of the patient is a prerequisite for any medical intervention.", "3.2 A patient has the right to refuse or to halt a medical intervention. The implications of refusing or halting such an intervention must be carefully explained to the patient.”", "3. Universal Declaration on Bioethics and Human Rights", "86. The Universal Declaration on Bioethics and Human Rights was adopted by UNESCO’s General Conference on 19 October 2005. Its relevant provisions read as follows:", "Article 5 – Autonomy and individual responsibility", "“The autonomy of persons to make decisions, while taking responsibility for those decisions and respecting the autonomy of others, is to be respected. For persons who are not capable of exercising autonomy, special measures are to be taken to protect their rights and interests.”", "Article 6 – Consent", "“1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Civil Code", "57. Under Article 11, natural persons have the right to protection of their personal rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics.", "58. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be erased. They also have the right to appropriate just satisfaction.", "59. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been significantly diminished, he or she is also entitled to financial compensation for non-pecuniary damage.", "B. The 1972 Sterilisation Regulation", "60. Regulation No. Z-4 582/1972-B/1 of the Ministry of Health of the Slovak Socialist Republic, published in Official Journal of the Ministry of Health No. 8-9/1972 (“the 1972 Sterilisation Regulation”) and applicable at the relevant time, contained guidelines governing sterilisation in medical practice.", "61. Section 2 permitted sterilisation in a medical institution either at the request of the person concerned or with that person’s consent where, inter alia, the procedure was necessary according to the rules of medical science for the treatment of a person’s reproductive organs which were affected by disease (section 2(a)), or where the pregnancy or birth would seriously threaten the life or health of a woman whose reproductive organs were healthy (section 2(b)).", "62. Section 5(1)(a) authorised the head physician of the hospital department in which the person concerned was treated to decide whether or not that person’s sterilisation was required within the meaning of section 2(a) of the 1972 Sterilisation Regulation. Sterilisation on any other ground required prior approval by a medical committee (“sterilisation committee”).", "63. Point XIV of the Annex to the 1972 Sterilisation Regulation indicated the following as obstetric or gynaecological reasons justifying a woman’s sterilisation:", "(a) during and after a second or subsequent Caesarean section, where this method of delivery was necessary for reasons which were likely to persist during a further pregnancy and where the woman concerned did not wish to deliver again via Caesarean section;", "(b) in the event of repeated complications during pregnancy, in the course of delivery and in the subsequent six-week period, where a further pregnancy would seriously threaten the woman’s life or health;", "(c) where a woman had several children (four children for women under the age of 35 and three children for women over that age).", "64. The Regulation was repealed by the Health Care Act 2004 with effect from 1 January 2005 (see below).", "C. The Health Care Act 1994", "65. At the relevant time the following provisions of Law no. 277/1994 on Health Care ( Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force.", "66. Section 13(1) made medical treatment subject to the patient’s consent. A patient’s consent to medical procedures of a particularly serious character or which substantially affected a person’s future life had to be given in writing or in another provable manner (section 13(2)).", "67. Under section 15(1) the doctor was obliged to advise the patient, in an appropriate and provable way, about the nature of his or her illness and the necessary medical procedures, so that the doctor and the patient could actively cooperate in the patient’s treatment. The amount of information which it was appropriate to provide to the patient was to be determined by the doctor in the light of the particular circumstances of the case. Such information had to be given in a manner which respected the patient ethically, and was not allowed to affect the patient’s treatment.", "D. The Health Care Act 2004", "68. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005.", "69. Section 6 governs the provision of information to and giving of informed consent by patients. Pursuant to sub-section 1, medical practitioners are obliged, unless the law provides otherwise, to inform the persons listed below about the aim, nature, consequences and risks of treatment, the possibility of choice as to the proposed procedures and the risks connected with refusal to accept treatment. This obligation to inform extends, inter alia, to the person to be treated or another person chosen by the former; to the statutory representative or guardian where health care is to be provided to a minor, a person deprived of legal capacity or a person with limited legal capacity; and, in an appropriate manner, also to persons incapable of giving informed consent.", "70. Section 6(2) obliges medical practitioners to provide information comprehensibly, considerately and without pressure, allowing the patient the possibility and sufficient time to freely give or withhold his or her informed consent, and in a manner appropriate to the maturity of intellect and will and the state of health of the person concerned.", "71. Section 6(3) provides that any person entitled to such information also has the right to refuse it. Such refusal has to be recorded in writing.", "72. Pursuant to section 6(4), informed consent is provable consent to treatment preceded by information as stipulated by the Health Care Act 2004. A written form of informed consent is required, inter alia, in the case of sterilisation. Everyone with the right to give informed consent also has the right to freely withdraw that consent at any time.", "73. Section 40 reads as follows:", "Sterilisation", "“(1) Sterilisation for the purposes of this law shall mean the prevention of fertility without the removal or impairment of a person’s reproductive organs.", "(2) Sterilisation may be performed only on the basis of a written request and written informed consent following the provision of information to a person with full legal capacity or to the statutory representative of a person not capable of giving informed consent, or on the basis of a court decision issued on an application by the statutory representative.", "(3) The information preceding a person’s informed consent must be provided as specified by section 6(2) and must encompass:", "(a) alternative methods of contraception and planned parenthood;", "(b) the possibility of a change in the life circumstances which led to the request for sterilisation;", "(c) the medical consequences of sterilisation as a method aimed at the irreversible prevention of fertility;", "(d) the possibility that the sterilisation might fail.", "(4) The request for sterilisation is to be submitted to a [health care] provider who carries out sterilisations. Requests for female sterilisation shall be examined and the sterilisation carried out by a physician specialising in the field of gynaecology and obstetrics; requests for male sterilisation shall be examined and the sterilisation carried out by a physician specialising in the field of urology.", "(5) Sterilisation may not be carried out earlier than thirty days after informed consent has been given. ”", "74. Section 50 repeals the 1972 Sterilisation Regulation.", "75. Article IV of the Health Care Act 2004 introduces the offence of “unlawful sterilisation”, which is included in the Criminal Code as Article 246b. Sub-paragraph 1 of Article 246b provides that anybody who sterilises a person contrary to the law is to be punished by a prison term of between three and eight years, by a prohibition on carrying out his or her activity or by a pecuniary penalty. The prison term may be between five and twelve years when the offence was committed in aggravating circumstances (sub ‑ paragraph 2).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "87. The applicant complained that she had been subjected to inhuman and degrading treatment on account of her sterilisation and that the authorities had failed to carry out a thorough, fair and effective investigation into the circumstances surrounding it. She relied on Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Alleged ill-treatment of the applicant", "1. The parties’ submissions", "(a) The applicant", "88. The applicant contended that she had not given her free, full and informed consent to her sterilisation as required by international standards. Nor had her sterilisation been in compliance with the 1972 Sterilisation Regulation in force at the relevant time. Her signature on the sterilisation form had been obtained during advanced labour, a short time before the delivery itself. Her sterilisation had been forced in the circumstances.", "89. The sterilisation had not been a life-saving procedure in her case and it had been carried out without consideration for alternative ways of protecting her from the alleged risks linked to a possible future pregnancy, such as the various methods of contraception available to her and her husband which would not have left her permanently infertile.", "90. The procedure was to be seen in the context of the widespread practice of sterilising Roma women which had its origins in the communist regime and in the enduringly hostile attitudes towards persons of Roma ethnic origin.", "91. The nature of the procedure as such and the circumstances in which it had been carried out amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.", "(b) The Government", "92. The Government denied the existence of a policy or practice aimed at the sterilisation of women of Roma ethnic origin. They referred, in particular, to the documents issued by the Council of Europe Commissioner for Human Rights as well as the criminal proceedings initiated by the Government Office and the investigation by a group of domestic experts.", "93. The applicant’s sterilisation was to be considered in the broader context, namely with due regard to her health status and her failure to seek the appropriate pre-natal medical care. The applicant’s second delivery via Caesarean section had been medically indicated. The doctors on duty had diagnosed a risk of rupture of the uterus in the event of a further pregnancy, which would present a real threat to the applicant’s life and/or that of her child. After consultation with the head physician, sterilisation had been considered appropriate with a view to protecting the applicant’s health.", "94. The applicant had been informed orally of the situation and the medical indications for the procedure, in terms which were comprehensible to her. She had confirmed with her signature that she requested sterilisation. At that time she had not been under the influence of any medication.", "95. With reference to the conclusions reached by the civil courts, the Government further argued that the sterilisation procedure had been performed in accordance with the law then in force and that it had not amounted to medical malpractice. The applicant had therefore not been subjected to treatment contrary to Article 3 of the Convention.", "(c) FIGO", "96. The aim of FIGO is to promote the health and well-being of women worldwide and to improve the practice of gynaecology and obstetrics. Its membership is made up of societies or federations of obstetricians and gynaecologists in 124 countries and territories.", "97. In its third-party comments, submitted through H. Rushwan, Chief Executive, FIGO stated that it endorsed, in line with the relevant international instruments, informed and freely given consent of patients intellectually capable of reproductive self-determination, given prior to their treatment, as being essential to their treatment in accordance with the ethical requirements. The implications of the proposed treatment should be made clear to patients’ satisfaction in advance of its performance, particularly when the proposed treatment had permanent effects on future child-bearing and the founding of a family.", "98. The process of informed choice had to precede informed consent to surgical sterilisation. Recognised available alternatives, especially reversible forms of family planning which might be equally effective, had to be given due consideration. The physician performing the sterilisation had the responsibility of ensuring that the person had been properly advised about the risks and benefits of the procedure and of the alternatives.", "99. Efforts should be made to preserve every patient’s fertility. The performance of a Caesarean section, when necessary, should not in itself constitute a ground for concluding that sterilisation was indicated so as to prevent the patient from opting for a future pregnancy. Any such proposal should afford the patient ample time for informed deliberation and not be made as an adjunct to a Caesarean procedure that the patient was about to undergo.", "2. The Court’s assessment", "(a) General principles", "100. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy, no. 26772/95, § 119, ECHR 2000-IV).", "101. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Although the purpose of such treatment is a factor to be taken into account, in particular the question of whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III, and Grori v. Albania, no. 25336/04, § 125, with further references).", "102. Treatment of a person by State agents has been considered to raise an issue under Article 3 when it resulted in bodily harm of a certain degree of severity, such as an injury to a person’s leg which caused necrosis and subsequently led to the leg having to be amputated, a gunshot wound to a person’s knee, a double fracture of the jaw and facial contusions or an injury to a person’s face which required stitches, with three of the person’s teeth being knocked out (see Sambor v. Poland, no. 15579/05, § 36, 1 February 2011; Necdet Bulut v. Turkey, no. 77092/01, § 24, 20 November 2007; Rehbock v. Slovenia, no. 29462/95, §§ 76-77, ECHR 2000 ‑ XII; and Mrozowski v. Poland, no. 9258/04, § 28, 12 May 2009). The Court has further considered the treatment of a person to be capable of raising an issue under Article 3 when, inter alia, it was such as to drive the victim to act against his or her will or conscience (see, for example, Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III).", "103. In several cases the Court has examined complaints about alleged ill-treatment in the context of medical interventions to which detained persons were subjected against their will. It has held, inter alia, that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The Court has nevertheless taken the view that it must satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision exist and are complied with (for a recapitulation of the relevant case-law see Jalloh v. Germany [GC], no. 54810/00, § 69, ECHR 2006 ‑ IX, with further references).", "104. In order for treatment to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see Labita, cited above, § 120).", "105. Finally, the Court reiterates that the very essence of the Convention is respect for human dignity and human freedom. It has held that in the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity (see Pretty v. the United Kingdom, no. 2346/02, §§ 63 and 65, ECHR 2002 ‑ III; Glass v. the United Kingdom, no. 61827/00, §§ 82-83, ECHR 2004 ‑ II; and Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 135, ECHR 2010 ‑ ...).", "(b) Assessment of the facts of the case", "106. The Court notes that sterilisation constitutes a major interference with a person’s reproductive health status. As it concerns one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life. It may be legitimately performed at the request of the person concerned, for example as a method of contraception, or for therapeutic purposes where the medical necessity has been convincingly established.", "107. However, in line with the Court’s case-law referred to above, the position is different in the case of imposition of such medical treatment without the consent of a mentally competent adult patient. Such a way of proceeding is to be regarded as incompatible with the requirement of respect for human freedom and dignity, one of the fundamental principles on which the Convention is based.", "108. Similarly, it is clear from generally recognised standards such as the Convention on Human Rights and Biomedicine, which was in force in respect of Slovakia at the relevant time, the WHO Declaration on the Promotion of Patients’ Rights in Europe or CEDAW’s General Recommendation No. 24 (see paragraphs 76-77, 83 and 85 above) that medical procedures, of which sterilisation is one, may be carried out only with the prior informed consent of the person concerned. The same approach has been endorsed by FIGO (see paragraphs 97-98 above). The only exception concerns emergency situations in which medical treatment cannot be delayed and the appropriate consent cannot be obtained.", "109. In the present case the applicant was sterilised in a public hospital immediately after she had given birth to her second child via Caesarean section. The doctors considered the procedure necessary, as a possible third pregnancy entailed serious risks to her life and that of her child, in particular a risk of rupture of the uterus.", "110. It is not the Court’s role to review the assessment by medical doctors of the state of health of the applicant’s reproductive organs. However, it is relevant to note that sterilisation is not generally considered as life-saving surgery. There is no indication that the situation was different in the present case; this was confirmed by one of the doctors involved in the domestic proceedings (see paragraph 31 above). As there was no emergency involving imminent risk of irreparable damage to the applicant’s life or health, and since the applicant was a mentally competent adult patient, her informed consent was a prerequisite to the procedure, even assuming that the latter was a “necessity” from a medical point of view.", "111. The documents available indicate that the applicant was asked to give her consent in writing two and a half hours after she had been brought to hospital, when she was in the process of established labour and in a supine position. The relevant entry in the delivery record was typed and merely indicated “Patient requests sterilisation”.", "112. In the Court’s view, such an approach is not compatible with the principles of respect for human dignity and human freedom embodied in the Convention and the requirement of informed consent laid down in the international documents to which reference is made above. In particular, it does not appear from the documents submitted that the applicant was fully informed about her health status, the proposed procedure and the alternatives to it. Furthermore, asking the applicant to consent to such an intervention while she was in labour and shortly before performing a Caesarean section clearly did not permit her to take a decision of her own free will, after consideration of all the relevant issues and, as she may have wished, after having reflected on the implications and discussed the matter with her partner.", "113. In this context no decisive weight can be attached to the Government’s arguments concerning the history of the applicant’s pregnancies and her failure to undergo regular check-ups. According to the Government, the applicant’s sterilisation was aimed at preventing a possibly life-threatening deterioration of her health. Such a threat was not imminent as it was likely to materialise only in the event of a future pregnancy. It could also have been prevented by means of alternative, less intrusive methods. In those circumstances, the applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future.", "114. The way in which the hospital staff acted was paternalistic, since, in practice, the applicant was not offered any option but to agree to the procedure which the doctors considered appropriate in view of her situation. However, in similar situations informed consent was required, promoting autonomy of moral choice for patients.", "115. The principle of patients’ autonomy in their relationship with health care professionals is explored in the Explanatory Report to the Convention on Human Rights and Biomedicine. A requirement of respect for, inter alia, women’s right to autonomy and choice in the context of health care is set out in point 31(e) of General Recommendation No. 24 adopted by CEDAW in 1999. The Universal Declaration on Bioethics and Human Rights, albeit subsequent to the facts of the present case, confirms the above considerations. In particular, Article 5 calls for respect for the autonomy of persons to make decisions while taking responsibility for those decisions. Shortcomings in the domestic law and practice in this regard were acknowledged in the expert report of the Ministry of Health of 28 May 2003, which stated that medical personnel and individuals were not on an equal footing and that individuals’ rights and responsibilities in matters of health care had been limited. In this context, the applicant’s sterilisation should be considered also in the light of the requirement to respect a person’s dignity and integrity embodied in Article 1 of the Convention on Human Rights and Biomedicine, which was ratified by Slovakia with effect from 1 December 1999 and was published in the Collection of Laws on 10 February 2000.", "116. The Court notes that the sterilisation procedure grossly interfered with the applicant’s physical integrity as she was thereby deprived of her reproductive capability. At the time of her sterilisation the applicant was twenty years old and therefore at an early stage in her reproductive life.", "117. The procedure was not an imminent necessity from a medical point of view. The applicant did not give her informed consent to it. Instead, she was asked to sign the typed words “Patient requests sterilisation” while she was in a supine position and in pain resulting from several hours’ labour. She was prompted to sign the document after being told by medical staff that she or her baby would die in the event of a further pregnancy.", "118. Thus, the sterilisation procedure, including the manner in which the applicant was requested to agree to it, was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting suffering. As to the last ‑ mentioned point in particular, the applicant experienced difficulties in her relationship with her partner and, later, husband as a result of her infertility. She cited her infertility as one of the reasons for her divorce in 2009. The applicant suffered serious medical and psychological after-effects from the sterilisation procedure, which included the symptoms of a false pregnancy and required treatment by a psychiatrist. Owing to her inability to have more children the applicant has been ostracised by the Roma community.", "119. Although there is no indication that the medical staff acted with the intention of ill-treating the applicant, they nevertheless displayed gross disregard for her right to autonomy and choice as a patient. In the Court’s view, the treatment to which she was subjected as described above attained the threshold of severity required to bring it within the scope of Article 3.", "120. There has therefore been a violation of Article 3 of the Convention on account of the applicant’s sterilisation.", "B. Alleged failure to conduct an effective investigation", "1. The parties’ submissions", "(a) The applicant", "121. The applicant maintained that the respondent State had failed to comply with its obligation under the procedural limb of Article 3 to carry out an effective investigation into her sterilisation. A criminal investigation into the case should have been started at the initiative of the authorities after they had been informed about the interference. The general investigation into the sterilisation of Roma women which the Government had initiated could not be considered effective in respect of the applicant’s own case. Similarly, the civil proceedings brought by the applicant had not complied with the requirements of Article 3. In particular, the applicant had been placed in a difficult position as the courts had been bound to examine the case only in the light of the parties’ submissions, and the burden of proof had lain on the latter. Those proceedings had not led to the identification and punishment of those responsible.", "(b) The Government", "122. The Government disagreed with the applicant’s arguments. In their view, there had been no breach of Article 3 under its procedural limb, given that the alleged practice of forced sterilisation of Roma women had been thoroughly examined in the context of the criminal proceedings initiated by the Government Office and a group of experts established by the Ministry of Health. Any specific obligations incumbent on the State in respect of the applicant’s case had been complied with in the context of the civil proceedings initiated by her.", "2. The Court’s assessment", "(a) General principles", "123. Articles 1 and 3 of the Convention impose positive obligations on the Contracting Parties, designed to prevent and provide redress for various forms of ill-treatment. In particular, in a similar manner to cases raising an issue under Article 2 of the Convention, there is a requirement to conduct an effective official investigation (see, for example, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII, and Biçici v. Turkey, no. 30357/05, § 39, 27 May 2010, with further references).", "124. The investigation in such cases must be thorough and expeditious. However, the failure of any given investigation to produce conclusions does not, by itself, mean that it was ineffective: an obligation to investigate “is not an obligation of result, but of means” (see Mikheyev v. Russia, no. 77617/01, §§ 107-109, 26 January 2006, with further references).", "125. In cases raising issues under Article 2 of the Convention in the context of alleged medical malpractice the Court has held that where the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I; Vo v. France [GC], no. 53924/00, §§ 90, ECHR 2004 ‑ VIII; and Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006).", "(b) Assessment of the facts of the present case", "126. The Court has found above that the way in which the hospital staff acted was open to criticism, given that the applicant had not given her informed consent to the sterilisation. However, the information available does not indicate that the doctors acted in bad faith, with the intention of ill ‑ treating the applicant (see also paragraph 119 above). In this respect the present case differs from other cases in which the Court held that the domestic authorities should start a criminal investigation of their own initiative once the matter had come to their attention (see, for example, Muradova v. Azerbaijan, no. 22684/05, § 123, 2 April 2009).", "127. The applicant had the possibility of requesting a criminal investigation into her case but did not avail herself of it. She sought redress by means of an action under Articles 11 et seq. of the Civil Code for protection of her personal integrity. In the context of the civil proceedings she was entitled to submit her arguments with the assistance of a lawyer, indicate evidence which she considered relevant and appropriate and have an adversarial hearing on the merits of her case. The civil proceedings lasted for two years and one month over two levels of jurisdiction, and the Constitutional Court subsequently decided on the applicant’s complaint concerning her relevant rights under the Convention within thirteen months. Hence, the applicant had an opportunity to have the actions of the hospital staff which she considered unlawful examined by the domestic authorities. The domestic courts dealt with her case within a period of time which is not open to particular criticism.", "128. In view of the foregoing, the applicant’s argument that the respondent State failed to carry out an effective investigation into her sterilisation, contrary to its obligations under Article 3, cannot be accepted.", "129. There has therefore been no procedural violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "130. The applicant complained that her right to respect for her private and family life had been breached on account of her sterilisation without her full and informed consent. She relied on Article 8 of the Convention which, in its relevant parts, provides:", "“1. Everyone has the right to respect for his private and family life, ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties’ submissions", "1. The applicant", "131. The applicant submitted that the interference had not satisfied the requirements of paragraph 2 of Article 8 and that the Slovakian authorities had failed to comply with their positive obligation under Article 8 as they had not provided her with information about ways of protecting her reproductive health, including information on the characteristics and consequences of sterilisation and alternative methods of contraception.", "132. The provisions of the 1972 Sterilisation Regulation had not been complied with as there had been no genuine declaration signed by the applicant and the procedure had not been pre-approved by a sterilisation committee. Furthermore, that Regulation did not provide an appropriate framework for ensuring that patients could give free and informed consent in similar circumstances, as required by the relevant international instruments.", "133. Sterilisation via tubal ligation was not life-saving surgery. Had that been the case, there would have been no need to obtain the applicant’s signature on the delivery record. The circumstances under which she had signed the relevant document excluded the possibility of her giving full and informed consent to the procedure, which had grossly affected her private and family life.", "134. The applicant considered her infertility to be irreversible, as a future in vitro fertilisation was not accessible to her for both religious and financial reasons. Her sterilisation had resulted in the deterioration of her relationship with the father of her children and impaired her standing in the Roma community of which she was a member, and was one of the reasons for her divorce in 2009.", "2. The Government", "135. The Government maintained that there had been gynaecological and obstetric indications for the applicant’s sterilisation as there was a serious risk of damage to both her health and life and those of her child in the event of a further pregnancy. The sterilisation had been performed at the applicant’s request. As it had been performed on unhealthy reproductive organs, the head physician of the hospital department had been authorised, in accordance with section 2(a) of the 1972 Sterilisation Regulation, to decide whether indications for sterilisation existed.", "136. The applicant had requested sterilisation some two and a half hours after she had been admitted to the hospital and she had been placed under anaesthesia approximately one hour later. Until that moment no substances had been administered to her capable of affecting her cognitive functions. The Government maintained that the applicant had herself requested the procedure after she had been advised, in an appropriate manner, about the risks resulting from a possible third pregnancy and the consequences of sterilisation. As established by the domestic courts, the interference had been in accordance with the relevant law and necessary for protecting the applicant’s own life and health. The Government left it to the Court to assess to what extent the procedure had complied with the relevant international standards.", "137. It was still possible for the applicant to become pregnant, for example by means of in vitro fertilisation. At the hearing the Government indicated that they were prepared to cover the costs of such a procedure. However, owing to the serious risks inherent in a further pregnancy, the applicant would have to agree to undergo frequent medical check-ups throughout its duration.", "B. The Court’s assessment", "1. General principles", "138. “Private life” is a broad term, encompassing, inter alia, aspects of an individual’s physical, psychological and social identity such as the right to personal autonomy and personal development, the right to establish and develop relationships with other human beings and the right to respect for both the decisions to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I, and E.B. v. France [GC], no. 43546/02, § 43, 22 January 2008).", "139. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see, for example, A, B and C v. Ireland [GC], no. 25579/05, §§ 218-241, 16 December 2010).", "140. In addition, the Contracting States are under a positive obligation to secure to persons within their jurisdiction effective respect for their rights under Article 8. For the assessment of such positive obligations it must be borne in mind that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. Compliance with requirements imposed by the rule of law presupposes that the rules of domestic law must provide a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention.", "141. Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision ‑ making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to ensure the requisite protection of his or her interests (for recapitulation of the relevant principles see, in particular, Airey v. Ireland, 9 October 1979, § 32, Series A no. 32; Tysiąc v. Poland, no. 5410/03, §§ 107-113, ECHR 2007 ‑ I; and A, B and C, cited above, §§ 247-249).", "142. The principles set out above are relevant also as regards a person’s right to respect for his or her family life. That notion under Article 8 of the Convention presupposes the existence of a family, but it is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage (see, for example, E.B., cited above, § 41; Anayo v. Germany, no. 20578/07, §§ 55, 58 and 63, 21 December 2010; Keegan v. Ireland, 26 May 1994, §§ 49-55, Series A no. 290; and Nolan and K. v. Russia, no. 2512/04, §§ 84-88, 12 February 2009, all with further references).", "2. Compliance with Article 8", "143. The applicant’s sterilisation affected her reproductive health status and had repercussions on various aspects of her private and family life. It therefore amounted to interference with her rights under Article 8. This was not disputed between the parties.", "144. In so far as the applicant complains that her sterilisation without her full and informed consent violated her right to respect for her private and family life, in the light of its finding that the sterilisation was in breach of the applicant’s rights under Article 3 of the Convention the Court does not find it necessary to examine this complaint separately under Article 8 of the Convention.", "145. The Court nevertheless considers it important to examine whether the respondent State complied with its positive obligation under Article 8 to secure through its legal system the rights guaranteed by that Article, by putting in place effective legal safeguards to protect the reproductive health of women of Roma origin in particular.", "146. The Court notes that the documents before it indicate that the issue of sterilisation and its improper use affected vulnerable individuals belonging to various ethnic groups. However, the Council of Europe Commissioner for Human Rights was convinced that the Roma population of eastern Slovakia had been at particular risk. This was due, inter alia, to the widespread negative attitudes towards the relatively high birth rate among the Roma compared to other parts of the population, often expressed as worries of an increased proportion of the population living on social benefits. In the Commissioner’s view, the Slovakian Government had an objective responsibility in the matter because of systemic shortcomings in the procedures permitted and, in particular, for failing to put in place adequate legislation and exercise appropriate supervision of sterilisation practices (see paragraph 78 above).", "147. Similarly, in its third report on Slovakia, ECRI stated that public opinion towards the Roma minority in Slovakia remained generally negative. That minority remained severely disadvantaged in most areas of life. The view was expressed that more adequate safeguards should be put in place (see paragraph 80 above).", "148. In the concluding observations of its 2008 periodic report on Slovakia, CEDAW expressed its concern at information received in respect of Roma women who reported having been sterilised without their prior and informed consent. It recommended that the Government take steps to ensure that patients were able to provide fully informed consent before any sterilisation procedure (see paragraph 84 above).", "149. In its report of 28 May 2003 a group of experts set up by the Ministry of Health concluded that certain shortcomings that had been identified in terms of health care and non-compliance with the regulations on sterilisation affected the whole population equally, regardless of patients’ ethnic origin. The report nevertheless contained a set of recommendations regarding the education of medical staff, focusing on “cultural differences in regions with an increased concentration of Roma communities” (see paragraphs 54-55 above).", "150. The Court has noted in this regard that the entry in the “Medical history” part of the record of the applicant’s pregnancy and delivery, under the sub-section entitled “Social and working conditions, especially during the pregnancy”, simply stated: “Patient is of Roma origin”. Moreover, in the proceedings before the Slovakian civil courts, one of the doctors at Prešov Hospital considered that the applicant’s situation was “the same as other similar cases” (see paragraph 32 above).", "151. The Government explained that the reference to the applicant’s Roma origin had been necessary as Roma patients frequently neglected social and health care and therefore required special attention. Even assuming this to have been the reason for the entry, the reference in the record to the applicant’s ethnic origin without further details being given indicates, in the view of the Court, a certain mindset on the part of the medical staff as to the manner in which the medical situation of a Roma woman should be managed. Certainly, it does not suggest that special care was to be, or was in fact, exercised to ensure that the full and informed consent of such a patient was obtained before any sterilisation was contemplated, or that the patient was involved in the decision-making process to a degree permitting her interests to be effectively protected.", "152. Both the 1972 Sterilisation Regulation and the Health Care Act 1994 required patients’ consent prior to medical intervention. However, those provisions, in view also of their interpretation and implementation in the applicant’s case, did not provide appropriate safeguards. In particular, they allowed a situation to occur in which an intervention of a particularly serious nature was carried out without the applicant’s informed consent as defined in the Convention on Human Rights and Biomedicine, by which Slovakia was bound at the relevant time.", "153. Specific measures aimed at the elimination of such shortcomings and ensuring compliance with the international standards were introduced with the enactment of the Health Care Act 2004, which became operative on 1 January 2005. In contrast to the 1972 Sterilisation Regulation and the Health Care Act 1994, the new legislation governs in detail the provision of information to patients and their informed consent. In particular, section 40 spells out the prerequisites for a person’s sterilisation. These include a written request and written consent following prior information concerning, inter alia, alternative methods of contraception, planned parenthood and the medical consequences of sterilisation. No sterilisation may be carried out until at least thirty days after informed consent has been given. The Court welcomes these developments but notes that they cannot affect the applicant’s situation as they are subsequent to the relevant facts of the present case.", "154. Accordingly, the absence at the relevant time of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman resulted in a failure by the respondent State to comply with its positive obligation to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life.", "155. There has therefore been a breach of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION", "156. The applicant complained that the facts of the case amounted to a breach of Article 12 of the Convention, which provides:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "157. The applicant contended that her right to found a family had been breached on account of her sterilisation without her full and informed consent, and that the Government had failed to establish appropriate safeguards preventing such situations from occurring.", "158. The Government maintained that the applicant’s inability to become pregnant by natural means was the consequence of her sterilisation, which she had undergone of her own free will. Furthermore, the evidence submitted before the domestic courts indicated that existing methods made it possible for the applicant to become pregnant if she so decided despite the risks involved.", "159. The Court reiterates that Article 12 of the Convention secures the fundamental right of a man and woman to marry and to found a family. Its exercise is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see Muñoz Díaz v. Spain, no. 49151/07, § 78, 8 December 2009, with further references). The exercise of the right to marry and found a family gives rise to personal, social and legal consequences as a result of which there is a close affinity between the rights under Articles 8 and 12 of the Convention (see Frasik v. Poland, no. 22933/02, § 90, ECHR 2010 ‑ ... (extracts)).", "160. In the present case, the sterilisation performed on the applicant had serious repercussions on her private and family life, and the Court has found above that it was in breach of Article 8 of the Convention. That finding absolves the Court from examining whether the facts of the case also give rise to a breach of the applicant’s right to marry and to found a family.", "161. It is therefore not necessary to examine separately the applicant’s complaint under Article 12 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "162. The applicant complained that she had had no effective remedy at her disposal in respect of her complaints about the infringement of her rights guaranteed by Articles 3, 8 and 12 of the Convention. She relied on Article 13, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "163. The applicant argued, in particular, that the domestic authorities had an obligation to carry out an effective investigation into her sterilisation. However, no such action had been taken at the initiative of the authorities and the examination of her case in the civil proceedings brought by the applicant had not been effective.", "164. The Government disagreed and maintained that the applicant had had effective remedies at her disposal, namely an action under Articles 11 et seq. of the Civil Code for protection of her personal rights and, ultimately, a complaint to the Constitutional Court.", "165. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms. Its effect is to require the provision of a domestic remedy capable of dealing with the substance of an “arguable complaint” under the Convention and of granting appropriate relief (see, amongst other authorities, Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996-VI). The word “remedy” within the meaning of Article 13 does not, however, mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Bensaid v. the United Kingdom, no. 44599/98, § 56, ECHR 2001-I).", "166. In the present case the applicant was able to have her case reviewed by the civil courts at two levels of jurisdiction, albeit unsuccessfully. She thus had an effective remedy in respect of her complaint about her sterilisation without informed consent. It is true that the Constitutional Court subsequently rejected the applicant’s complaint for reasons which the Court, in its admissibility decision, characterised as excessively formalistic when examining compliance with the requirement under Article 35 § 1. This does not, however, affect the position under Article 13, given the remedy which was available to the applicant before the civil courts. In addition, it was open to the applicant to request a criminal investigation into her case.", "167. The Court has found a breach of Article 8 on account of the respondent State’s failure to incorporate appropriate safeguards in the domestic law (see paragraph 152). To the extent that the applicant alleges a breach of Article 13 on the ground that the deficiencies in the domestic law were at the origin of her sterilisation and the subsequent dismissal of her action, the Court reiterates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law (see Iordachi and Others v. Moldova, no. 25198/02, § 56, 10 February 2009).", "168. In these circumstances, the Court finds no breach of Article 13 of the Convention taken together with Articles 3, 8 and 12.", "V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "169. The applicant complained that in the context of her sterilisation she had been discriminated against, on the grounds of her race and sex, in the enjoyment of her rights under Articles 3, 8 and 12 of the Convention. She alleged a violation of Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties’ submissions", "1. The applicant", "170. The applicant considered that her ethnic origin had played a decisive role in the decision by the medical personnel of Prešov Hospital to sterilise her. Her complaint about discriminatory treatment was to be examined in the light of the sterilisation policies and practice existing under the communist regime and also in the context of the widespread intolerance towards the Roma in Slovakia. That climate had influenced the attitudes of the medical personnel. The indication in her medical record that she was of Roma ethnic origin and her treatment as a patient in Prešov Hospital demonstrated the climate in that hospital with regard to Roma patients and the overall context in which her sterilisation had taken place. After the hearing the applicant specified that she did not wish to complain separately about the segregation of Roma patients in Prešov Hospital.", "171. In addition to having been subjected to racial discrimination, the applicant alleged that she had been subjected to discrimination on the ground of her sex as she had been subjected to a difference in treatment in connection with her pregnancy. Referring to documents from CEDAW, the applicant argued that a failure by health services to accommodate the fundamental biological differences between men and women in reproduction was in breach of the prohibition of discrimination on the ground of sex. The sterilisation performed on her without her full and informed consent amounted to a form of violence against women. As such it was contrary to Article 14.", "2. The Government", "172. The Government denied any practice of targeted discrimination of Roma patients in medical institutions in Slovakia, including Prešov Hospital, and disputed the applicant’s allegations in that regard.", "173. The applicant’s sterilisation had been indicated for medical reasons and had been performed at her request. In other similar cases doctors had proceeded in the same way regardless of patients’ race or skin colour.", "174. While it was true that the medical documents included an entry indicating that the applicant was of Roma origin, that entry had been made in the delivery record, in the part describing the applicant’s medical history. The medical staff of Prešov Hospital specifically mentioned the Roma origin of patients in documents, as those patients’ social and health care had been frequently neglected and they therefore required special attention.", "3. FIGO", "175. FIGO considered it unethical for a physician to perform a sterilisation procedure as an adjunct to a Caesarean section because he or she considered it desirable in the patient’s interest, unless the physician had fully discussed the matter with the patient before delivery and received her voluntary consent. Given the irreversible nature of many sterilisation procedures, physicians should not allow any language, cultural or other differences between themselves and their patients to leave the latter unaware of the nature of the sterilisation procedures being proposed to them and for which they were requested to provide prior consent.", "B. The Court’s assessment", "176. The applicant alleged a breach of Article 14 read in conjunction with Articles 3, 8 and 12 of the Convention. In the circumstances of the case, the Court considers it most natural to consider the discrimination complaint in conjunction with Article 8 as the interference at issue affected one of her essential bodily functions and entailed numerous adverse consequences for her private and family life in particular.", "177. The materials before the Court indicate that the practice of sterilisation of women without their prior informed consent affected vulnerable individuals from various ethnic groups. The Court has held that the information available is not sufficient to demonstrate in a convincing manner that the doctors acted in bad faith, with the intention of ill-treating the applicant (see paragraph 119). Similarly, and notwithstanding the fact that the applicant’s sterilisation without her informed consent calls for serious criticism, the objective evidence is not sufficiently strong in itself to convince the Court that it was part of an organised policy or that the hospital staff’s conduct was intentionally racially motivated (see, mutatis mutandis, Mižigárová v. Slovakia, no. 74832/01, §§ 117 and 122, 14 December 2010).", "178. Nevertheless, it is relevant from the viewpoint of Article 14 that in their materials both the Human Rights Commissioner and ECRI identified serious shortcomings in the legislation and practice relating to sterilisations. They expressed the view that those shortcomings were liable to particularly affect members of the Roma community, who were severely disadvantaged in most areas of life. The same was implicitly admitted by the group of experts established by the Ministry of Health, who recommended special measures in respect of the Roma population.", "179. In that connection the Court has found that the respondent State failed to comply with its positive obligation under Article 8 of the Convention to secure to the applicant a sufficient measure of protection enabling her, as a member of the vulnerable Roma community, to effectively enjoy her right to respect for her private and family life in the context of her sterilisation.", "180. In these circumstances, the Court does not find it necessary to separately determine whether the facts of the case also gave rise to a breach of Article 14 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "181. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "182. The applicant argued that the interference with her rights had been of a particularly serious nature and had had lasting repercussions. She claimed 50,000 euros (EUR) in respect of non-pecuniary damage.", "183. The Government considered that claim overstated. They argued that the applicant had given her consent to the sterilisation procedure and that she could undergo in vitro fertilisation if she wished to have more children. The Government pointed out that, at the hearing before the Court, they had offered to cover the costs of such a procedure.", "184. Having regard to the breaches of the Convention established and their factual background, the Court awards the applicant EUR 31,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "185. The applicant claimed EUR 38,930.43. That sum comprised EUR 34,621.59 in respect of the legal costs related to her representation both in the domestic proceedings and before the Court. It further comprised EUR 4,308.84 in respect of costs and expenses related to the preparation and photocopying of documents, communications and postage, and expenses related to the participation of the applicant’s representatives at the hearing on 22 March 2011, as well as irrecoverable costs incurred in connection with the hearing scheduled for 7 September 2010 (see paragraph 6 above).", "186. The Government submitted that the claim was unreasonably high and that the Court should grant the applicant compensation only in respect of those costs and expenses which she had reasonably incurred.", "187. According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were reasonable as to quantum (see Sanoma Uitgevers B.V. v. the Netherlands, no. 38224/03, § 109, ECHR 2010 ‑ ...., with further references).", "188. In the present case the Court considers that the sum claimed is excessive, in particular as regards the fees of the applicant’s representatives. Regard being had to the information in its possession and the above ‑ mentioned criteria, the Court considers it reasonable to award the global sum of EUR 12,000 in respect of costs and expenses, plus any tax that may be chargeable to the applicant on that amount.", "C. Default interest", "189. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant is of Roma ethnic origin. She was born in 1983 and lives in Nálepkovo.", "A. Sterilisation of the applicant at the Gelnica Hospital", "6. On 25 April 2001, during the delivery of her second child, the applicant was sterilised by means of tubal ligation at the gynaecology and obstetrics department of the hospital in Gelnica (“the Gelnica Hospital ”). The Gelnica Hospital was a public hospital administered by the Ministry of Health at that time and until the end of 2002.", "7. During her pregnancy the applicant visited her doctor regularly. She was informed that the delivery would be via caesarean section.", "8. According to the applicant ’ s medical records, the applicant was brought to the hospital in labour by an ambulance at 7.50 a.m. on 25 April 2001. At 9 a.m. on the same day, when her contractions were occurring at five minute intervals, the applicant was administered premedication in view of the envisaged caesarean section. It included a benzodiazepine derivative which is used for its sedative, anxiety-relieving and muscle-relaxing effects.", "9. Following a handwritten entry on the administration of the premedication, the medical record contains a typed entry on the next page, according to which the applicant had requested that a sterilisation procedure be carried out on her reproductive organs during the delivery, and that she had been informed about the irreversible nature of such an operation and of her being unable to conceive a child in the future. The entry is signed by a doctor and it also bears the signature of the applicant.", "10. The applicant later declared that, after the administration of the premedication, she had been approached by a member of the medical staff who was carrying three A4 size pieces of paper. The staff member had taken her hand to help her sign the papers. The applicant had been in labour and had felt as if she were intoxicated under the influence of the medication. She had neither had the strength nor the will to ask what the documents contained. She remembers a doctor who was present saying that she would die unless she signed the papers. She had therefore not objected to signing the papers with the assistance of the staff member.", "11. The applicant ’ s child was born at 9.35 a.m.", "12. Another section of the medical records, dated 11 May 2001, indicates that the child was delivered by caesarean section.", "13. According to a surgical report in the applicant ’ s medical file, in the course of the operation the doctors discovered a large fissure running the length of the scar from a previous caesarean section on the applicant. After the child ’ s delivery, the doctors discovered a rupture of the applicant ’ s uterus. It had probably been the result of the secondary healing of a suture which had become loose during the course of the applicant ’ s second pregnancy. As a result, the applicant ’ s life had been at risk. The doctors had therefore considered a hysterectomy as a radical solution to the problem. However, in view of the patient ’ s age, they had preferred to carry out reconstructive surgery despite the risk of complications. Since the applicant ’ s uterus was severely damaged, it had been considered certain that a similar situation would occur in any future pregnancy and would pose a grave risk to the life of the applicant and her foetus. After the reconstructive surgery, the doctors had therefore decided to sterilise the applicant in accordance with the request she had made prior to the operation. The report indicates that no complications occurred in the course of the surgery.", "14. The applicant was released from the Gelnica Hospital on 11 May 2001.", "15. The medical records also contain a copy of a decision of the sterilisation commission established at the Gelnica Hospital. The decision is dated 15 May 2001 and indicates that the commission approved, ex post facto, the applicant ’ s sterilisation, which had been carried out at her request. According to the document, a sterilisation procedure had been justified within the meaning of the Sterilisation Regulation 1972 in view of the applicant ’ s health.", "16. At the time of the delivery and sterilisation procedure the applicant was underage. She reached the age of majority ten days later. Her mother, who was the applicant ’ s representative while she was under the age of majority, was not present during the delivery and she had not been asked to give her consent to the sterilisation.", "17. The applicant learned about the operation and its nature in December 2002, when her lawyer reviewed her medical file in the Gelnica Hospital.", "18. According to the applicant, as a result of the operation, she has suffered from serious physical and mental health problems. The applicant ’ s psychological problems were recognised by a psychologist in a statement dated 7 September 2007. She maintained that she had been ostracised by her husband and the Roma community because of her infertility.", "19. With a view to describing the overall situation and context in which she had been sterilised, the applicant submitted that she had experienced inferior treatment during her stay at the Gelnica Hospital. In particular, the applicant indicated that patients in the gynaecological and obstetrics ward had been segregated according to their ethnic origin. The applicant had been accommodated in a “Gypsy room” separated from women who were not of Roma ethnic origin. The applicant considered that her ethnic origin had played a decisive role in the decision of the medical staff to sterilise her. Citing a number of international reports, [1] the applicant submitted that discrimination against Roma in Slovakia extended to all facets of their lives.", "20. The Government were in disagreement with the applicant ’ s allegations.", "B. Civil proceedings", "21. On 8 December 2004 the applicant sued the Gelnica Hospital for damages before the Spišská Nová Ves District Court. Apart from the relevant provisions of the Slovakian Civil Code, she also relied on Articles 3, 8 and 12 of the Convention. The applicant argued that she had been sterilised contrary to the relevant provisions of Slovak law, as her mother had not given consent to the operation. It had also run counter to relevant international human rights standards. The applicant claimed the equivalent of 17, 310 euros (EUR) in damages and also claimed reimbursement of her costs.", "22. Following the privatisation of the Gelnica Hospital, the District Court substituted the Gelnica Municipality as the defendant in the proceedings on 25 May 2005.", "23. On 10 February 2006 the District Court dismissed the applicant ’ s action. With reference to the evidence available, it concluded that the operation had been necessary with a view to saving the applicant ’ s life. As such, it could have been performed without her prior consent.", "24. On 2 8 March 2006 the applicant appealed. She maintained, inter alia, that her ethnic origin had motivated the doctors to sterilise her.", "25. On 28 February 2007 the Košice Regional Court quashed the first ‑ instance judgment. It expressed the view that the sterilisation operation on the applicant could not be considered as life-saving surgery and ordered the first-instance court to re-examine the case in light of that opinion.", "26. An expert opinion submitted to the District Court indicated that during the caesarean section the doctors had discovered an extensive injury to the applicant ’ uterus. A hysterectomy, which they had originally considered carrying out, would have been, in the expert ’ s view, acceptable medical practice in the circumstances. The expert considered the alternative solution which the doctors had chosen, namely reconstructive surgery of the uterus, as an intervention which had saved the applicant ’ s life in the circumstances. However, the subsequent sterilisation of the applicant had not been indispensable with a view to preventing an imminent danger to her life.", "27. On 7 September 2007 a psychology centre conducted an examination of the applicant and issued a report at the request of the applicant ’ s representative. It was noted that during the examination the applicant had indicated that there was conflict in her marriage, as her husband frequently reproached her for her inability to have more children. The applicant had further indicated that she suffered from stomach pains, loss of appetite and breathing problems. The psychologist concluded that the depressive and pessimistic moods from which the applicant suffered were possibly related to her inability to conceive.", "28. In her submissions to the District Court the applicant also relied on views expressed by several experts on sociology and Roma culture indicating that the inability to have children strongly diminished the position of a woman and her family in the Roma community.", "29. On 14 May 2008 the District Court ordered the defendant to pay the equivalent of EUR 1, 5 93 to the applicant. It further held that none of the parties were entitled to have the costs of the proceedings reimbursed.", "30. The District Court established that the medical staff had failed to obtain informed consent to the applicant ’ s sterilisation prior to the operation. At the relevant time, the applicant had been underage and her legal representative had not signed the request. It determined the amount of compensation with reference to Regulation 32/1965. The court did not consider it necessary to avail itself of its right to increase the award of compensation above the rates indicated in the regulation. It noted that the applicant had married the father of her children since bringing the action and had not shown that her position in the Roma community had deteriorated.", "31. By an additional judgment of 11 June 2008 the District Court formally rejected the remainder of the applicant ’ s claims and ordered the defendant to reimburse the State ’ s costs incurred in the proceedings.", "32. On 23 June 2008 the applicant appealed. She argued that the compensation awarded to her was insufficient in view of the scope and consequences of the damage which she had suffered, and complained that the District Court had dismissed her request for reimbursement of her legal costs.", "33. On 27 October 2009 the Regional Court upheld the first-instance judgment on the merits to the extent that it was challenged by the applicant. The Regional Court referred to the opinion of an expert indicating that a third pregnancy would be highly risky for both the applicant and the foetus. If the applicant had not agreed to her sterilisation, she would have been required to confirm in writing that she had been advised that any future pregnancy would threaten her life. Albeit that it could not be established with absolute certainty that such a situation would occur, the existence of such a risk nevertheless justified the conclusion that an increase in compensation under sections 6(2) and 7(3) of Regulation 32/1965 was not justified in the circumstances.", "34. The Regional Court further quashed the first-instance decision as to the costs of the proceedings and ordered the District Court to re-examine the issue.", "C. Criminal complaint", "35. On 26 August 2008 the applicant filed a criminal complaint with the District Prosecutor ’ s Office in Spišská Nová Ves. She alleged that the sterilisation operation had been unlawful and had caused her serious bodily harm. The applicant also relied on her rights under the Convention.", "36. On 20 October 2008 the District Directorate of the Office of the Judicial and Criminal Police in Spišská Nová Ves dismissed the applicant ’ s complaint. It concluded that no offence had been committed, as the medical staff involved had acted with a view to protecting the applicant ’ s life and health. Furthermore, it was still possible for the applicant to conceive by means of in vitro fertilisation.", "37. On 14 November 2008 the Spišská Nová Ves District Prosecutor ’ s Office dismissed the applicant ’ s complaint against that decision.", "38. On 14 January 2009 the Košice Regional Prosecutor ’ s Office quashed the lower prosecutor ’ s decision as being premature.", "39. Subsequently, the police started a criminal investigation. They took statements from the applicant, her mother and a doctor from the Gelnica Hospital. The doctor stated that complications had occurred in the course of the delivery, as a result of which the applicant ’ s life had been at risk. It had therefore been decided to perform a sterilisation, with the applicant ’ s approval, as a life-saving procedure. In contrast, an expert provided an opinion to the effect that it had not been necessary to sterilise the applicant during the delivery with a view to saving her life. Both the doctor and the expert concurred that the operation had not prevented the applicant from becoming pregnant by means of assisted reproduction.", "40. On 31 July 2009 the police closed the investigation, concluding that no criminal offence had been committed.", "41. On 16 September 2009 the Spišská Nová Ves District Prosecutor ’ s Office dismissed the applicant ’ s complaint against that decision. It held, with reference to an expert opinion, that the operation had become necessary as, in the course of the delivery, extensive bleeding had occurred due to a rupture of the applicant ’ s uterus. In that situation, the doctors had had to take a decision immediately. After consultation with the head physician, they had decided not to carry out a hysterectomy, which was normally indicated in similar situations, but had elected to reconstruct the uterus with a view to preserving it. The surgical team had then carried out a sterilisation by means of tubal ligation so that the applicant could lead a normal life. The applicant had not suffered irreversible damage to her health and she had given her consent to the procedure. She had reached the age of majority only ten days thereafter. Prior to the delivery she had lived with her partner and had taken care of one child.", "42. On 18 November 2009 the Košice Regional Prosecutor ’ s Office, in response to a complaint by the applicant, upheld the findings reached by the police and the District Prosecutor ’ s Office. The letter informing the applicant of this decision further stated that the above-mentioned findings of the civil courts in relation to the case did not bind the prosecuting authorities.", "43. At the applicant ’ s request, a prosecutor from the General Prosecutor ’ s Office reviewed the case. In a letter of 8 March 2010 the prosecutor admitted that the operation had not been consented to by the applicant ’ s representative, contrary to the relevant law. That did not mean, however, that the doctors had committed an offence. In particular, they had acted in good faith with a view to protecting the applicant, as they had considered the operation necessary in view of the applicant ’ s health.", "44. The public prosecutor noted that the applicant had signed the request while experiencing labour pains and that her sterilisation had not been a life ‑ saving intervention. The provisions of the Sterilisation Regulation 1972 had been interpreted and applied for many years in such a manner that, where it was medically indicated and where the prior agreement of the woman concerned was obtained, sterilisation was carried out immediately after delivery by means of caesarean section.", "D. Constitutional proceedings", "45. On 18 January 2010 the applicant lodged a complaint with the Constitutional Court. She alleged a breach, in the above civil and criminal proceedings, of her rights under Articles 3, 8, 13 and 14 of the Convention, of several provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, of the Convention on the Elimination of All Forms of Discrimination against Women, and a number of constitutional provisions. As regards the civil proceedings, she also alleged a breach of Article 6 of the Convention.", "46. The Constitutional Court dismissed the complaint on 5 May 2010. It held that the prosecuting authorities involved could not be held liable for the alleged breach of the applicant ’ s substantive rights which had primarily resulted from her sterilisation in the Gelnica Hospital. As to the civil proceedings, the Constitutional Court found that the Košice Regional Court had given sufficient and relevant reasons for its judgment of 27 October 2009, which had therefore not been arbitrary. There was no appearance of a breach of Article 6 § 1 of the Convention in the proceedings leading to that judgment. The Constitutional Court further found no causal link between the Regional Court ’ s judgment and the other rights on which the applicant had relied." ]

[ "II. RELEVANT DOMESTIC LAW, PRACTICE AND RELEVANT INTERNATIONAL MATERIALS", "47. The relevant domestic law, practice and international materials are set out in the judgment of V.C. v. Slovakia, no. 18968/07, § § 57-86, 8 November 2011.", "48. In addition, the following information is relevant to the present case.", "49. The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164) was ratified by Slovakia on 15 January 1998 and entered into force in respect of Slovakia on 1 December 1999. The corresponding notification, together with the text of the Convention, was published in the Collection of Laws under number 40/2000 on 10 February 2000. Article 6 § 2 reads as follows:", "“Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.", "The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.”", "50. Section 13(1) of the Health Care Act 1994 (“the 1994 Act”), in force at the relevant time, made medical treatment subject to the patient ’ s consent. A patient ’ s consent to medical procedures of a particularly serious character or which substantially affected a person ’ s future life had to be given in writing or in another provable manner (section 13(2)).", "51. Pursuant to section 13(5) of the 1994 Act, in the case of patients under the age of majority consent to medical procedures of a particularly serious character within the meaning of section 13(2) was to be given by their representative upon the recommendation of a group of at least three experts. Patients over the age of sixteen who were deemed to be intellectually capable of assessing the envisaged procedure had to give their consent to such a procedure as well. The only exception to the foregoing concerned indispensable medical procedures which could not be delayed (section 13(6)).", "52. Regulation 32/1965 (“the Regulation”) governed compensation for pain and impediments to a person ’ s integration in society which resulted from an injury, occupational disease or other damage to one ’ s health. It was repealed with effect from 1 January 2009.", "53. Section 2 (1) of the Regulation provided for compensation for pain resulting from damage to a person ’ s health, and for subsequent medical treatment and the elimination of the effects of such damage. The amount of the compensation for pain was to be determined in accordance with the principles and rates attached to the Regulation. It was to correspond to the scope of the damage to one ’ s health and the course of its treatment.", "54. Section 4(1) of the Regulation governed compensation for damage to one ’ s health which demonstrably entailed negative consequences for the everyday life of the person concerned, for satisfying his or her living and social needs or for fulfilling his or her role in society. The compensation granted was to correspond to the nature of such negative consequences and their expected prognosis, and should reflect the extent to which a person ’ s life and integration in society were affected.", "55. Pursuant to section 6(1) of the Regulation, compensation under section 4(1) of the Regulation was to be determined pursuant to the number of points which a medical expert attributed to a particular case on the basis of the rates attached to the Regulation. Paragraph 2 of section 6 allowed for the number of points assigned to be increased by up to one hundred per cent, depending on: (i) the prospects which the injured person had at the moment when his or her health was damaged; (ii) the injured person ’ s family life; or (iii) the injured person ’ s involvement in politics, culture or sport, their profession and/or their level of education.", "56. Section 7 of the Regulation governed the amount of compensation. Its paragraph 2 limited the overall compensation to the equivalent of approximately EUR 8, 000. Finally, paragraph 3 of section 7 entitled the courts to increase the award over and above the sums foreseen by the Regulation where it was justified by particular circumstances.", "THE LAW", "I. THE GOVERNMENT ’ S OBJECTION AS TO THE STATUS OF THE APPLICANT AS A VICTIM", "57. The Government argued that the applicant had lost her status as a victim because the domestic courts had acknowledged, in substance, a breach of her rights and had granted compensation to her in that respect. In the domestic proceedings the applicant had not shown that the impact of the sterilisation justified a higher compensation award.", "58. The applicant maintained that the domestic authorities had neither acknowledged a breach of her rights, nor had they granted appropriate compensation to her.", "59. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status under Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; or Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).", "60. In the present case, the applicant relied on her rights under Articles 3, 8 and 12 of the Convention in the civil proceedings. The civil courts acknowledged that her sterilisation had been unlawful due to the fact that her mother had not signed the request. However, they did not accept the applicant ’ s arguments about the particularly serious character of the breach of her rights (see paragraphs 30 and 3 3 above ). It does not appear from their reasoning that the civil courts considered the circumstances of the case from the perspective of the international standards on which the applicant had relied ( compare and contrast R.R. v. Poland, no. 27617/04, §§ 101-102, 2 6 May 2011 ).", "61. In the context of the criminal proceedings, the prosecuting authorities concluded that the applicant had not suffered irreversible damage to her health and that the doctors involved had not committed an offence.", "62. Subsequently, the Constitutional Court did not deal with the substance of the applicant ’ s complaints under the Convention. It addressed only the procedural aspects of the case (see paragraph 46 above). The Court reiterates that it qualified a similar approach, in a different case which also concerned the sterilisation of a Roma woman, as amounting to excessive formalism (see V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009).", "63. Even assuming that by their judgments the civil courts acknowledged to an acceptable extent the breach of the rights which the applicant alleges, the Court notes that they awarded her the equivalent of EUR 1, 593. In the judgment of V.C. v. Slovakia (cited above, §§ 120, 155 and 184), which also concerned sterilisation of a Roma woman in a public hospital, the Court found a breach of Articles 3 and 8 of the Convention and awarded the applicant EUR 31, 000 as just satisfaction. The Court is therefore of the view that, having regard to the circumstances of the case, the award at the domestic level cannot be regarded as financial redress commensurate with the nature of the damage alleged by the present applicant.", "64. The Government ’ s objection that the applicant ceased to be a victim within the meaning of Article 34 of the Convention must accordingly be dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "65. The applicant complained that she had been subjected to inhuman and degrading treatment on account of her sterilisation without her and her representative ’ s full and informed consent, and that the authorities had failed to carry out a thorough, fair and effective investigation into the circumstances surrounding her sterilisation. She relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "66. The Government contested that argument.", "A. Admissibility", "67. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Alleged ill-treatment of the applicant", "(a) The parties ’ submissions", "(i) The applicant", "68. The applicant, with reference to the arguments which she had raised in the domestic proceedings, maintained that her sterilisation had not been a life-saving intervention and that it had had a lasting impact on her physical and psychological health, her relationship with her husband, and on her family and had affected her position within the Roma community. It had amounted to treatment contrary to Article 3 of the Convention.", "(ii) The Government", "69. The Government argued that the applicant ’ s medical records included a sterilisation request signed by her and that the sterilisation committee had approved the procedure. It had been established in the course of the delivery that the applicant ’ s uterus was seriously damaged to an extent which had justified, from the medical point of view, a hysterectomy. Despite a risk of complications, the doctors had decided to carry out reconstructive surgery instead, in view of the applicant ’ s age and also for the sake of maintaining the applicant ’ s menstrual cycle. Subsequently, they had carried out the sterilisation in accordance with the wish which the applicant had earlier expressed and confirmed in writing.", "70. The Government maintained that the applicant had not been subjected to treatment contrary to Article 3 of the Convention, as the doctors had acted with the intention of protecting her life and health, as well as the life of her child. Had the doctors deliberately wished to deprive the applicant of her reproductive capacity, they would have carried out a hysterectomy which, as an expert had confirmed, would have been considered as a life-saving intervention given the state of the applicant ’ s reproductive organs. While it was true that the applicant ’ s mother had not formally agreed to the procedure, it was to be noted that the applicant had previously given birth to a child and that she had reached the age of majority only ten days after her sterilisation.", "(b) The Court ’ s assessment", "(i) Recapitulation of the relevant principles", "71. The relevant principles established in the Court ’ s case-law are set out, for example, in V.C. v. Slovakia, judgment cited above, §§ 100-105, with further references.", "72. That case concerned the sterilisation of a Roma woman without her informed consent. The procedure had been carried out immediately after she had delivered a child via a caesarean section on the basis of a consent which she had been asked to give while in labour.", "73. In V.C. v. Slovakia (see §§ 106-120) the Court held that sterilisation as such was not, in accordance with generally recognised standards, a life ‑ saving medical intervention. Where sterilisation was carried out without the informed consent of a mentally competent adult, it was incompatible with the requirement of respect for human freedom and dignity. In that case the Court concluded that, although there was no indication that the medical staff had acted with the intention of ill-treating the applicant, they had nevertheless acted with gross disregard for her right to autonomy and choice as a patient. Such treatment had been in breach of Article 3 of the Convention.", "(ii) Assessment of the facts of the case", "74. It has not been disputed between the parties that the present applicant ’ s sterilisation was not a life-saving medical intervention and that it was carried out without the informed consent of the applicant and/or her representative. Similarly as in the case of V.C., the procedure was therefore incompatible with the requirement of respect for the applicant ’ s human freedom and dignity. The fact that the doctors had considered the procedure necessary because the applicant ’ s life and health would be seriously threatened in the event of her further pregnancy cannot affect the position (see also V.C. v. Slovakia, cited above, §§ 76-77 and 105, with further references).", "75. It therefore remains to be determined whether the procedure and its repercussions attained a level of severity justifying its qualification as treatment contrary to Article 3.", "76. The applicant submitted, and it was not contradicted by the medical records or contested by the Government, that she had been asked to sign a typed text indicating that she requested sterilisation after tranquilising premedication had been administered in preparation for the envisaged caesarean section. Thus the applicant was in labour and was under the influence of medication. A member of the medical staff asked her to sign the sterilisation request, and she was prompted by one of the doctors present to do so with an explanation that she would otherwise die. The applicant therefore did not object to signing the paper with the assistance of a hospital staff member.", "77. For the Court, such a way of proceeding, by removing one of the important capacities of the applicant and making her formally agree to such a serious medical procedure while she was in labour, when her cognitive abilities were affected by medication, and then wrongfully indicating that the procedure was indispensable for preserving her life, violated the applicant ’ s physical integrity and was grossly disrespectful of her human dignity.", "78. Similarly as in V.C. v. Slovakia (cited above, § 119), the information available does not indicate that the medical staff acted with the intention of ill-treating the applicant. They nevertheless acted with gross disregard for her human freedom, including the right to freely decide, together with her representative and after having had the possibility of discussing the matter with her partner, whether she consented to the procedure.", "79. The Court notes that at the time of the procedure the applicant was seventeen years old, still legally underage, and at an early stage of her reproductive life. The sterilisation grossly interfered with her physical integrity, as she was thereby deprived of her reproductive capacity.", "80. Given its serious nature and consequences, the sterilisation procedure, including the manner in which the applicant was asked to agree to it, was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting suffering. As to the last- mentioned point, a psychologist admitted that the applicant ’ s depressive and pessimistic moods could be linked to her inability to conceive. In view of the documents which the applicant produced in the domestic proceedings (see paragraph 28 above), the Court finds no reason to doubt that her inability to have children strongly diminished her position as a woman living within a Roma community and entailed mental suffering. The treatment to which the applicant was subjected as described above attained the threshold of severity required to bring it within the scope of Article 3.", "81. There has accordingly been a violation of Article 3 of the Convention on account of the applicant ’ s sterilisation.", "2. Alleged failure to conduct an effective investigation", "82. The applicant maintained that the investigation into her case had not been effective as required by Article 3.", "83. The Government argued that the relevant aspects of the case had been examined in detail by prosecuting authorities at three levels in the context of the criminal proceedings instituted by the applicant, as well as in the context of the civil proceedings which had led to the finding that the sterilisation had been contrary to the relevant law.", "84. The Court reiterates that Articles 1 and 3 of the Convention impose procedural obligations on the Contracting Parties to conduct an effective official investigation which must be thorough and expeditious. However, the failure of any given investigation to produce conclusions does not, by itself, mean that it was ineffective: an obligation to investigate is not an obligation of result, but of means. Furthermore, in the specific sphere of medical negligence the obligation to carry out an effective investigation may, for instance, also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (for recapitulation of the relevant principles see V.C. v. Slovakia, cited above, §§ 123-125, with further references).", "85. In the present case, the civil courts acknowledged that the applicant ’ s sterilisation had been in disregard of the statutory requirements and awarded compensation to her. In addition, the applicant ’ s criminal complaint was examined by prosecuting authorities at three levels. The General Prosecutor ’ s Office acknowledged that the applicant had been sterilised contrary to the relevant law as her representative had not consented to the procedure. That action did not, however, constitute a criminal offence in the particular circumstances.", "86. Thus the applicant had the opportunity to have the actions of the hospital staff which she considered unlawful examined by the domestic authorities and the liability of those involved established. While it is true that the civil proceedings lasted four years and nine months, the Court notes that during that period courts at two levels of jurisdiction examined the case twice, and that the proceedings concerning the applicant ’ s criminal complaint, which lasted eighteen months, were conducted expeditiously.", "87. In view of the foregoing, the applicant ’ s complaint that the respondent State failed to carry out an effective investigation into her sterilisation, contrary to its obligations under Article 3, cannot be accepted.", "88. There has therefore been no procedural violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "89. The applicant complained that her right to respect for her private and family life had been violated as a result of her sterilisation, which had been carried out contrary to the requirements of the relevant law and without her and her mother ’ s full and informed consent. She relied on Article 8 of the Convention which, in its relevant parts, provides:", "“1. Everyone has the right to respect for his private and family life, ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "90. The Government admitted that a medical intervention without the informed consent of the person concerned amounted to an interference with that person ’ s private life.", "91. The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits", "92. The applicant maintained that her private and family life had been severely affected as a result of the sterilisation procedure.", "93. The Government pointed to the fact that the domestic courts had acknowledged that the requirements of domestic law had not been complied with in the applicant ’ s case. They further argued that the medical staff had considered the procedure necessary with a view to protecting the applicant ’ s life and health.", "94. The relevant case-law is recapitulated in V.C. v. Slovakia, cited above, §§ 138-142.", "95. The applicant ’ s sterilisation affected her reproductive health status and had repercussions on various aspects of her private and family life. It therefore amounted to interference with her rights under Article 8. It was carried out contrary to the requirements of domestic law, as the applicant ’ s mother had not given her consent to the procedure. This was not disputed between the parties.", "96. In addition, the Court has previously held, with reference to both international and domestic documents, that at the relevant time an issue arose in Slovakia as regards sterilisations and their improper use, including disregard for informed consent – required by the international standards by which Slovakia was bound. Such practice was found to affect vulnerable individuals belonging to various ethnic groups. However, Roma women had been at particular risk due to a number of shortcomings in domestic law and practice at the relevant time (see V.C. v. Slovakia, cited above, §§ 146-149 and 152-153).", "97. For reasons which are set out in detail in that judgment and which are relevant as regards the circumstances of the present case (see also paragraph 44 above), the Court finds that the respondent State failed to comply with its positive obligation under Article 8 to secure through its legal system the rights guaranteed by that Article, by putting in place effective legal safeguards to protect the reproductive health of, in particular, women of Roma origin.", "98. Accordingly, the failure to respect the statutory provisions combined with the absence at the relevant time of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman resulted in a failure by the respondent State to comply with its positive obligation to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life.", "99. There has therefore been a breach of Article 8 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION", "100. The applicant further complained that her right to found a family had been breached on account of her sterilisation. She relied on Article 12 of the Convention, which provides:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "101. The applicant maintained, in particular, that her marital life continued to be problematic to due her inability to conceive and that the domestic courts had disregarded her arguments in that respect.", "102. The Government argued that the applicant herself had agreed to her sterilisation. That procedure was not irreversible. If the applicant wished to have more children, it was open to her to undergo a sterilisation reversal operation or conceive from in-vitro fertilisation. The Government expressed their readiness to bear the costs of such an operation. They cautioned, however, that a fresh pregnancy would represent a serious danger to the applicant and her child given the applicant ’ s health status.", "103. The Court notes that this complaint is linked to the ones examined above and must therefore likewise be declared admissible.", "104. The sterilisation performed on the applicant had serious repercussions on her private and family life, and the Court found above that it was in breach of Article 8 of the Convention. In view of that finding, and also in regard of the fact that the applicant married and has lived with the father of her children after the sterilisation procedure, the Court considers that a further examination of whether the facts of the case also give rise to a breach of her right to marry and to found a family is not called for.", "105. It is therefore not necessary to examine separately the applicant ’ s complaint under Article 12 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "106. The applicant complained that she had had no effective remedy at her disposal in respect of her complaints about the infringement of her rights guaranteed by Articles 3, 8 and 12 of the Convention. She relied on Article 13, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "107. The Government contested that argument.", "108. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms. Its effect is to require the provision of a domestic remedy capable of dealing with the substance of an “arguable complaint” under the Convention and of granting appropriate relief (see, amongst other authorities, Aksoy v. Turkey, 25 September 1996, § 95, Reports 1996-VI). The word “remedy” within the meaning of Article 13 does not, however, mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Bensaid v. the United Kingdom, no. 44599/98, § 56, ECHR 2001-I).", "109. In the present case, the applicant was able to have her case reviewed by civil courts at two levels of jurisdiction which acknowledged that she had been sterilised contrary to the relevant law and made a compensation award under Regulation 32/1965. Furthermore, the relevant facts of the case were assessed from the perspective of the criminal law by prosecuting authorities at three levels. Shortcomings in the sterilisation procedure were confirmed in that context (see paragraphs 43 and 44 above). The applicant thus had effective remedies within the meaning of Article 13 in respect of her complaint about her sterilisation. The fact that no person was convicted of a criminal offence and that the Constitutional Court subsequently refused to address the substance of the applicant ’ s complaints under Articles 3, 8 and 14 of the Convention does not affect the position (see also V.C. v. Slovakia, cited above, § 166).", "110. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "111. Lastly, the applicant complained that she had been discriminated against on the grounds of her race/ethnic origin and sex in the enjoyment of her rights under Articles 3, 8 and 12 of the Convention. She alleged a violation of Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "112. The Government argued that the applicant had not exhausted domestic remedies, as she had failed to submit relevant arguments in the domestic proceedings concerning her case. It had been also open to the applicant to seek redress in respect of her alleged discriminatory treatment by means of an action for protection of her personal rights under Articles 11 et seq. of the Civil Code. In any event, the complaint was manifestly ill ‑ founded, as the applicant had failed to show that the hospital staff had discriminated against her in the context of the sterilisation procedure.", "113. The applicant maintained that at the relevant time no anti ‑ discrimination laws had been enacted in Slovakia and that the Government ’ s objection relating to exhaustion of domestic remedies should be dismissed. The applicant further argued that she had unsuccessfully sought redress as regards her allegation that sterilisation had been performed on her due to her ethnic origin in both criminal and civil proceedings and, ultimately, before the Constitutional Court.", "114. The Court notes that in the context of the civil proceedings the applicant argued that her ethnic origin had motivated the doctors to sterilise her. Subsequently, she alleged a breach of her rights, including those under Article 14 of the Convention, before the Constitutional Court, which is the supreme judicial authority in Slovakia charged with the protection of individuals ’ fundamental rights and freedoms guaranteed by the Constitution and also by the Convention.", "115. Thus the applicant afforded the domestic authorities the opportunity to redress by their own means the violation of her Convention right in issue. As regards the argument that the applicant should have sought redress by means of an action for protection of her personal rights, the Court recalls that an applicant who has used a remedy which is apparently effective and sufficient cannot be required to have tried others that were also available but probably no more likely to be successful (see Adamski v. Poland (dec.), no. 6973/04, 27 January 2009, with further references). It is also relevant in this respect that the Constitutional Court did not indicate in its decision that the applicant should have used the other civil remedy cited by the Government prior to lodging her constitutional complaint.", "116. In the above circumstances, the Government ’ s objection relating to the applicant ’ s failure to exhaust domestic remedies cannot be upheld.", "117. The Court further considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits", "118. The applicant reiterated that her race/ethnic origin had played a determining role in her sterilisation and that she had also been discriminated against on the grounds of her sex in that respect.", "119. The Government were in disagreement with the applicant.", "120. The applicant alleged a breach of Article 14 read in conjunction with Articles 3, 8 and 12 of the Convention. In the circumstances of the case, the Court considers it most natural to entertain the discrimination complaint in conjunction with Article 8, as the interference in issue affected one of her important bodily capacities and entailed numerous adverse consequences for, in particular, her private and family life.", "121. The Court has previously found that the practice of sterilisation of women without their prior informed consent affected vulnerable individuals from various ethnic groups. In view of the documents available, it cannot be established that the doctors involved acted in bad faith, that the applicant ’ s sterilisation was a part of an organised policy, or that the hospital staff ’ s conduct was intentionally racially motivated. At the same time, the Court finds no reason for departing from its earlier finding that shortcomings in legislation and practice relating to sterilisations were liable to particularly affect members of the Roma community (see V.C. v. Slovakia, cited above, §§ 177-178; and also paragraphs 9 6 -9 7 above ).", "122. In that connection, the Court has found that the respondent State failed to comply with its positive obligation under Article 8 of the Convention to secure to the applicant a sufficient measure of protection enabling her, as a member of the vulnerable Roma community, to effectively enjoy her right to respect for her private and family life in the context of her sterilisation (see paragraphs 9 8 -9 9 above).", "123. In these circumstances, the Court does not find it necessary to separately determine whether the facts of the case also gave rise to a breach of Article 14 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "124. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "125. The applicant claimed 50, 000 euros (EUR) in respect of non ‑ pecuniary damage. She submitted that she had been sterilised at an early stage of her reproductive life and that the procedure had had lasting consequences for her.", "126. The Government considered the sum claimed excessive. In case of a finding of a breach of the applicant ’ s rights, they submitted that any award should be proportionate to the circumstances of the case.", "127. The Court notes that the applicant obtained partial redress at the domestic level (see paragraph 29 above). Having regard to the circumstances of the case seen as a whole and deciding on equitable basis, the Court awards the applicant EUR 25, 000 in respect of non-pecuniary damage.", "B. Costs and expenses", "128. The applicant also claimed EUR 10, 436.07 for costs and expenses incurred in both the domestic proceedings and before the Court. That sum included EUR 9, 848.07 in respect of the costs of her legal representation and EUR 588 in respect of administrative expenses.", "129. The Government objected that the sum claimed for the legal costs was excessively high and that any reimbursement of administrative costs and expenses should correspond to sums demonstrably incurred.", "130. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5, 000 covering costs under all heads.", "C. Default interest", "131. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1967 and lives in Bourg-en-Bresse.", "10. On 27 November 1991 the applicant, Mrs Thi-Nho Vo, who is of Vietnamese origin, attended Lyons General Hospital for a medical examination scheduled during the sixth month of pregnancy.", "11. On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a contraceptive coil removed at the same hospital. When Dr G., who was to remove the coil, called out the name “Mrs Vo” in the waiting- room, it was the applicant who answered.", "After a brief interview, the doctor noted that the applicant had difficulty in understanding French. Having consulted the medical file, he sought to remove the coil without examining her beforehand. In so doing, he pierced the amniotic sac causing the loss of a substantial amount of amniotic fluid.", "After finding on clinical examination that the uterus was enlarged, the doctor ordered a scan. He then discovered that one had just been performed and realised that there had been a case of mistaken identity. The applicant was immediately admitted to hospital.", "Dr G. then attempted to remove the coil from Mrs Thi Thanh Van Vo, but was unsuccessful and so prescribed an operation under general anaesthetic for the following morning. A further error was then made when the applicant was taken to the operating theatre instead of Mrs Thi Thanh Van Vo, and only escaped the surgery intended for her namesake after she protested and was recognised by an anaesthetist.", "12. The applicant left the hospital on 29 November 1991. She returned on 4 December 1991 for further tests. The doctors found that the amniotic fluid had not been replaced and that the pregnancy could not continue further. The pregnancy was terminated on health grounds on 5 December 1991.", "13. On 11 December 1991 the applicant and her partner lodged a criminal complaint, together with an application to join the proceedings as civil parties, alleging unintentional injury to the applicant entailing total unfitness for work for a period not exceeding three months and unintentional homicide of her child. Three expert reports were subsequently filed.", "14. The first, which was filed on 16 January 1992, concluded that the foetus, a baby girl, was between 20 and 21 weeks old, weighed 375 grams, was 28 centimetres long, had a cranial perimeter of 17 centimetres and had not breathed after delivery. The expert also concluded that there was no indication that the foetus had been subjected to violence or was malformed and no evidence that the death was attributable to a morphological cause or to damage to an organ. Further, the autopsy performed after the abortion and an anatomico-pathological examination of the body indicated that the foetal lung was 20 to 24 weeks old.", "15. On 3 August 1992 a second report was filed concerning the applicant ’ s injuries:", "“( a) There is a period of temporary total unfitness for work from 27 November 1991 to 13 December 1991, when the patient was admitted to the Tonkin Clinic with an entirely unconnected pathology (appendectomy )", "( b) the date of stabilisation can be put at 13 December 1991", "( c) there is no loss of amenity", "( d) there is no aesthetic damage", "( e) there is no occupational damage", "( f) there is no partial permanent unfitness for work", "Damage in terms of pain and suffering resulting from this incident still has to be assessed. The assessment should be carried out with a doctor of Vietnamese extraction specialising in psychiatry or psychology .”", "16. The third report, which was issued on 29 September 1992, referred to the malfunctioning of the hospital department concerned and to negligence on the part of the doctor:", "“ 1. The manner in which appointments in the departments run by Professors [ T. ] and [ R. ] at Lyons General Hospital are organised is not beyond reproach, in particular in that namesakes are common among patients of foreign origin and create a risk of confusion, a risk that is undoubtedly increased by the patients ’ unfamiliarity with or limited understanding of our language.", "2. The fact that patients were not given precise directions and the consulting rooms and names of the doctors holding surgeries in them were not marked sufficiently clearly increased the likelihood of confusion between patients with similar surnames and explains why, after Dr [ G. ] had acquainted himself with Mrs Thi Thanh Van Vo ’ s medical file, it was [the applicant] who came forward in response to his call.", "3. The doctor acted negligently, by omission, and relied solely on the paraclinical examinations. He did not examine his patient and by an unfortunate error ruptured the amniotic sac, causing the pregnancy to terminate at five months. He is accountable for that error, although there are mitigating circumstances. ”", "17. On 25 January 1993, and also following supplemental submissions by the prosecution on 26 April 1994, Dr G. was charged with causing unintentional injury at Lyons on 27 November 1991 by:", "(i) through his inadvertence, negligent act or inattention, perforating the amniotic sac in which the applicant ’ s live and viable foetus was developing, thereby unintentionally causing the child ’ s death ( a criminal offence under Article 319 of the former Criminal Code – which was applicable at the material time – now Article 221-6 of the Criminal Code );", "(ii) through his inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of protection or care, causing the applicant bodily injury that resulted in her total unfitness for work for a period not exceeding three months ( a criminal offence under Article R. 40, sub - paragraph 4, of the former Criminal Code – which was applicable at the material time – now Articles R. 625-2 and R. 625-4 of the Criminal Code ).", "18. By an order of 31 August 1995, Dr G. was committed to stand trial in the Lyons Criminal Court on counts of unintentional homicide and unintentionally causing injuries.", "19. By a judgment of 3 June 1996, the Criminal Court found that the accused was entitled as of right to an amnesty under the Amnesty Law of 3 August 1995 in respect of the offence of unintentionally causing injuries entailing temporary unfitness for work of less than three months. As to the offence of unintentional homicide of the foetus, it held:", "“ The issue before the Court is whether the offence of unintentional homicide or the unintentional taking of the foetus ’ s life is made out when the life concerned is that of a foetus – if a 20 to 21 week - old foetus is a human person ( ‘ another ’ within the meaning of Article 221-6 of the Criminal Code).", "...", "The expert evidence must be accepted. The foetus was between 20 and 21 weeks old.", "At what stage of maturity can an embryo be considered a human person?", "The Voluntary Termination of Pregnancy Act of 17 January 1975 provides: ‘ The law guarantees respect of every human being from the beginning of life. ’", "The Law of 29 July 1994 (Article 16 of the Civil Code) provides: ‘ The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life ’.", "The laws of 29 July 1994 expressly employed the terms ‘ embryo ’ and ‘ human embryo ’ for the first time. However, the term ‘ human embryo ’ is not defined in any of them.", "When doing the preparatory work for the legislation on bioethics, a number of parliamentarians (both members of the National Assembly and senators) sought to define ‘ embryo ’. Charles de Courson proposed the following definition: ‘ Every human being shall be respected from the start of life; the human embryo is a human being. ’ Jean-François Mattéi stated: ‘ The embryo is in any event merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation. ’", "It thus appears that there is no legal rule to determine the position of the foetus in law either when it is formed or during its development. In view of this lack of a legal definition it is necessary to return to the known scientific facts. It has been established that a foetus is viable at 6 months and on no account, on present knowledge, at 20 or 21 weeks.", "The Court must have regard to that fact (viability at 6 months) and cannot create law on an issue which the legislators have not yet succeeded in defining.", "The Court thus notes that a foetus becomes viable at the age of 6 months; a 20 to 21 week-old foetus is not viable and is not a ‘ human person ’ or ‘ another ’ within the meaning of former Article 319 and Article 221-6 of the Criminal Code.", "The offence of unintentional homicide or of unintentionally taking the life of a 20 to 21 week-old foetus has not been made out, since the foetus was not a ‘ human person ’ or ‘ another ’ ...", "Acquits Dr G. on the charge without penalty or costs ... ”", "20. On 10 June 1996 the applicant appealed against that judgment. She argued that Dr G. had been guilty of personal negligence severable from the functioning of the public service and sought 1,000,000 French francs (FRF) in damages, comprising FRF 900, 000 for the death of the child and FRF 100, 000 for the injury she had sustained. The public prosecutor ’ s office, as second appellant, submitted that the acquittal should be overturned. It observed: “By failing to carry out a clinical examination, the accused was guilty of negligence that caused the death of the foetus, which at the time of the offence was between 20 and 24 weeks old and following, normally and inexorably, the path of life on which it had embarked, there being no medical doubt over its future. ”", "21. In a judgment of 13 March 1997, the Lyons Court of Appeal upheld the judgment in so far as it had declared the prosecution of the offence of unintentionally causing injuries time -barred but overturned the remainder of the judgment and found the doctor guilty of unintentional homicide. It imposed a six-month suspended prison sentence and a fine of FRF 10,000, holding :", "“ ... In the instant case Dr [ G. ] ’ s negligence is characterised in particular by the fact that the patient ’ s knowledge of French was insufficient to enable her to explain her condition to him, to answer his questions or to give him the date of her last period, circumstances that should have further impressed upon him the need for a thorough clinical examination. The assertion that he was entitled to rely on the medical records alone shows that, though an able scientist, this young doctor was nonetheless unaware of one of the essential skills of the practice of medicine: listening to, getting to know and examining the patient. Indeed, before this Court Dr [ G. ] said that the accident had impressed upon him how vital it was to take precautions before operating.", "There is a clear causal link between this negligent act and omission and the death of the child Mrs Vo was carrying. The accused has himself acknowledged, with commendable honesty, that a clinical examination would have alerted him to the fact that the patient was pregnant and had been mistaken for another patient.", "As regards the classification of the offence as unintentional homicide, it is first necessary to reiterate the legal principles governing this sphere.", "Various provisions of international treaties, such as Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of the International Covenant on Civil and Political Rights and Article 6 of the Convention on the Rights of the Child signed in New York on 26 January 1990, recognise a right to life protected by law for everyone, and notably children.", "Under domestic law, section 1 of the Voluntary Termination of Pregnancy Act ( Law no. 75-17 of 17 January 1975 ) specifies: ‘ The law guarantees respect of every human being from the beginning of life ... this principle may only be derogated from in the event of necessity and in accordance with the conditions set out in this statute. ’", "Further, Law no. 94-653 of 29 July 1994 on the respect of the human body lays down in Article 16 of the Civil Code: ‘ The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life. ’", "These statutory provisions cannot be regarded as mere statements of intent, devoid of any legal effect, since Article 16-9 of the Civil Code indicates that the provisions of Article 16 are mandatory.", "For its part the Criminal Division of the Court of Cassation applied these rules of international and domestic law in two judgments it delivered on 27 November 1996, specifying that the Act of 17 January 1975 only permits derogation from the rule stated in section 1 thereof that every human being is entitled to respect from the beginning of life in cases of necessity and subject to the conditions and limitations set out in it.", "The Court of Cassation added that, having regard to the conditions laid down by the legislature, the provisions of that statute and of the law of 31 December 1979 on the voluntary termination of pregnancy, taken as a whole, were not incompatible with the aforementioned treaty provisions.", "In a different case, moreover, the Court of Cassation pointed out that on signing the Convention on the Rights of the Child in New York on 26 January 1990, France made a declaration concerning interpretation in which it stated that the convention could not be interpreted as constituting any obstacle to the implementation of the provisions of French legislation on the voluntary termination of pregnancy. That reservation shows, by converse implication, that that convention could concern a foetus aged less than 10 weeks, the statutory maximum foetal age in France for a voluntary termination of pregnancy.", "It follows that, subject to the provisions on the voluntary termination of pregnancies and therapeutic abortions, the right to respect for every human being from the beginning of life is guaranteed by law, without any requirement that the child be born as a viable human being, provided it was alive when the injury occurred.", "Indeed, viability is a scientifically indefinite and uncertain concept, as the accused, who is currently studying in the United States, himself acknowledged, informing the Court that foetuses born between 23 and 24 weeks after conception could now be kept alive, a situation that was inconceivable a few years ago. In the opinion prepared by Professor [ T .] and adduced in evidence by Dr [ G. ], reference is made to a report by Professor Mattéi in which it is indicated that the embryo is merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation. ...", "Thus the issue of viability at birth, a notion that is uncertain scientifically, is in addition devoid of all legal effect, as the law makes no distinction on that basis.", "In the instant case it has been established that when the scan was performed on 27 November 1991 – before the amniotic fluid was lost later that day – the [applicant ’ s] pregnancy had been proceeding normally and the child she was carrying was alive. When the therapeutic abortion was performed on 5 December 1991, it was noted that a comparison of the child ’ s measurements with published tables suggested that the foetus was between 20 and 21 weeks old and possibly older, as it is not certain that the tables take into account the specific morphology of children of Vietnamese origin. Dr [ G. ], when questioned on this point at the hearing, was unable to provide any further information. The conclusion from the anatomo-pathological examination was that the foetal lung indicated an age of between 20 and 24 weeks, its measurements suggesting that an age at the lower end of that range was the most likely. In any event, as Dr [ G. ] said in evidence, the age of the foetus was very close to that of certain foetuses that have managed to survive in the United States. The photographs at page D 32 of the trial bundle show a perfectly formed child whose life was cut short by the accused ’ s negligence.", "As the Douai Court of Appeal observed in its judgment of 2 June 1987, had the assault on the child concerned inflicted a non-fatal wound, it would have been classified without any hesitation as an offence of unintentionally causing injuries. A fortiori, an assault leading to the child ’ s death must be classified as unintentional homicide.", "Thus, the strict application of the legal principles, established scientific fact and elementary common sense all dictate that a negligent act or omission causing the death of a 20 to 24 week-old foetus in perfect health should be classified as unintentional homicide.", "Consequently, the impugned judgment must be overturned ...", "While [ the applicant ’ s ] civil action is admissible, if only to corroborate the prosecution case, this Court has no jurisdiction to hear the claim for reparation. This is because despite the serious nature of the negligent act and omission of Dr [ G. ], a doctor in a public hospital, they do not constitute personal misconduct of such exceptional gravity entailing a total disregard for the most elementary principles and duties inherent in his function as to make them severable from public service.", "Nonetheless, it is appropriate to order Dr [ G. ] to pay to this civil party compensation in the sum of 5, 000 francs under Article 475-1 of the Code of Criminal Procedure on account of costs which she has incurred, but which have not been paid by the State.", "... ”", "22. On 30 June 1999, on an appeal on points of law by the doctor, the Court of Cassation reversed the judgment of the Lyons Court of Appeal and ruled that there was no reason to remit the case for retrial:", "“Having regard to Article 111-4 of the Criminal Code :", "Criminal-law provisions must be strictly construed.", "...", "In convicting [ the doctor ] of unintentional homicide, the appellate court noted that Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 6 of the International Covenant on Civil and Political Rights recognise the existence for all persons of a right to life protected by law. The appellate court stated that the Voluntary Termination of Pregnancy Act of 17 January 1975 establishes the rule that the life of every human being must be respected from the beginning of life. That rule is now restated in Article 16 of the Civil Code as worded following the amendment made by the Law of 29 July 1994. The appellate court went on to state that, by operating without performing a prior clinical examination, the doctor was guilty of a negligent act or omission that had a definite causal link with the death of the child the patient was carrying.", "However, by so holding, when the matters of which the defendant was accused did not come within the definition of the offences set out in former Article 319 and Article 221-6 of the Criminal Code, the Court of Appeal misinterpreted the aforementioned provisions.", "... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Criminal Code", "23. The provision dealing with the unintentional taking of life at the material time and until 1 March 1994 was Article 319 of the Criminal Code, which read as follows:", "“Anyone who through his or her inadvertence, negligent act, inattention, negligent omission or breach of regulation unintentionally commits homicide or unintentionally causes death, shall be liable to imprisonment of between three months and two years and a fine of between 1,000 and 30,000 francs.”", "24. Since 1 March 1994, the relevant provision has been Article 221-6 of the Criminal Code (as amended by Law no. 2000-647 of 10 July 2000 and Order no. 2000-916 of 19 September 2000), which is to be found in Section II (“Unintentional taking of life”) of Chapter I (“Offences against the life of the person”) of Part II (“Offences against the human person”) of Book II (“Serious crimes ( crimes ) and other major offences ( délits ) against the person”). Article 221-6 provides:", "“It shall be an offence of unintentional homicide punishable by three years ’ imprisonment and a fine of 45,000 euros to cause the death of another in the conditions and in accordance with the distinctions set out in Article 121-3 by inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of safety or care.", "In the event of a manifestly deliberate breach of a special statutory or regulatory duty of safety or care, the maximum sentences shall be increased to five years ’ imprisonment and a fine of 75,000 euros. ”", "25. Article 223-10 of the Criminal Code, which concerns the voluntary termination of pregnancy by a third party without the mother ’ s consent, is to be found in Section V under the heading “Unlawful termination of pregnancy” of Chapter III, entitled “ Endangering the person ”, in Part II of Book II. It reads as follows:", "“It shall be an offence punishable by five years ’ imprisonment and a fine of 75, 000 euros to terminate a pregnancy without the mother ’ s consent. ”", "26. Section III entitled “Protection of the human embryo” of Chapter I (“Offences against biomedical ethics”) of Part I ( “ Public-health offences ” ) of Book V ( “ Other serious crimes ( crimes ) and other major offences ( délits ) ” ) prohibits various types of conduct on grounds of medical ethics ( Articles 511-15 to 511-25), including the conception of human embryos in vitro for research or experimental purposes ( Article 511-18).", "B. The Public Health Code", "27. At the material time the limitation period for an action in damages in the administrative courts was four years, while the period in which a pregnancy could be voluntarily terminated lawfully was ten weeks following conception.", "28. The provisions of the Public Health Code as worded since the Patients ’ Rights and Quality of the Health Service Act (Law no. 2002-303 of 4 March 2002 ) came into force read as follows :", "Article L. 1142-1", "“ Save where they incur liability as a result of a defect in a health product, the medical practitioners mentioned in Part IV of this Code and all hospitals, clinics, departments and organisations in which preventive medicine, diagnosis or treatment is performed on individuals shall only be liable for damage caused by preventive medicine, diagnosis or treatment if they have been at fault.", "... ”", "Article L. 1142-2", "“ Private medical practitioners, the hospitals, clinics, health services and organisations mentioned in Article L. 1142-1 and any other legal entity other than the State that is engaged in preventive medicine, diagnosis or treatment and the producers and suppliers of and dealers in health products in the form of finished goods mentioned in Article L. 5311-1 with the exception of sub - paragraph 5 thereof, subject to the provisions of Article L. 1222-9, and sub - paragraphs 11, 14 and 15, that are used in connection with such activities shall be under a duty to take out insurance in respect of any third - party or administrative liability they may incur for damage sustained by third parties as a result of an assault against the person in the course of that activity taken as a whole.", "... ”", "Article L. 1142-28", "“The limitation period for actions against medical practitioners and public or private hospitals or clinics in respect of preventive medicine, diagnosis or treatment shall be ten years from the date the condition stabilises .”", "Article L. 2211-1", "“As stated in Article 16 of the Civil Code as hereafter reproduced : ‘", "‘ The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life. ’ ”", "Article L. 2211-2", "“ The principle referred to in Article L. 2211-1 may only be derogated from in the event of necessity and in accordance with the conditions set out in this Part. It shall be the nation ’ s duty to educate society on this principle and its consequences, [ to provide ] information on life ’ s problems and on national and international demography, to inculcate a sense of responsibility, to receive children into society and to uphold family life. The State, aided by the local and regional authorities, shall perform these obligations and support initiatives that assist it to do so. ”", "Article L. 2212-1", "“ A pregnant woman whose condition causes her distress may ask a doctor to terminate her pregnancy. The pregnancy may only be terminated within the first twelve weeks. ”", "Article L. 2213-1", "“A pregnancy may be voluntarily terminated at any time if two doctors from a pluridisciplinary team certify, after the team has issued a consultative opinion, that either the woman ’ s continued pregnancy puts her health at serious risk or that it is highly likely that the unborn child is suffering from a particularly serious affection which is recognised as incurable at the time of diagnosis.", "... ”", "C. The position taken by the Court of Cassation", "29. The Court of Cassation has followed its decision in the instant case (see paragraph 22 above) on two occasions ( in its judgments of 29 June 2001 (full court ), Bulletin no. 16 5, and of 25 June 2002 ( Criminal Division ), Bulletin no. 144), despite submissions from the advocates - general concerned to the contrary.", "1. Judgment of the full court of 29 June 2001", "“As regards the two grounds of appeal of the public prosecutor at the Metz Court of Appeal and of Mrs X which have been joined together ... :", "On 29 July 1995 a vehicle being driven by Mr Z collided with a vehicle being driven by Mrs X, who was six months pregnant. She was injured and as a result of the impact lost the foetus she was carrying. In the impugned judgment (Metz Court of Appeal, 3 September 1998), Mr Z was convicted of unintentionally injuring Mrs X, aggravated by the fact that he was under the influence of drink. However, he was acquitted of the unintentional killing of the unborn child.", "The grounds of appeal against that decision are, firstly, that Article 221-6 of the Criminal Code, which makes it an offence to cause the death of another, does not exclude from its scope a viable unborn child and that, by holding that this provision applied only to a child whose heart was beating at birth and who was breathing, the Court of Appeal had added a condition that was not contained in the statute, and, secondly, unintentionally causing the death of an unborn child constituted the offence of unintentional homicide if the unborn child was viable at the material time, irrespective of whether or not it breathed when it was separated from the mother, with the result that there had been a violation of Articles 111-3, 111-4 and 221-6 of the Criminal Code and Article 593 of the Code of Criminal Procedure.", "The rule that offences and punishment must be defined by law, which requires that criminal statutes be construed strictly, pleads against extending the scope of Article 221-6 of the Criminal Code, which makes unintentional homicide an offence, to cover unborn children whose status in law is governed by special provisions concerning embryos and foetuses.", "... ”", "2. Judgment of the Criminal Division of 25 June 2002", "“ ...", "Having regard to former Article 319, Article 221-6 and Article 111-4 of the Criminal Code :", "The rule that offences and punishment must be defined by law, which requires that criminal statutes be construed strictly, pleads against a charge of unintentional homicide lying in the case of a child that is not born alive.", "The impugned judgment established that Z, whose pregnancy under the supervision of X came to term on 10 November 1991, attended the clinic in order to give birth on 17 November. She was placed under observation at about 8.30 p.m. and drew the attention of the midwife, Y, to an anomaly in the child ’ s cardiac rhythm. Y refused to call the doctor. A further test carried out at 7 a.m. the following morning showed a like anomaly and subsequently that the heart had stopped beating altogether. At about 8 a.m., X pronounced the baby dead. In the evening he proceeded to extract the stillborn child by caesarean section. According to the autopsy report, the child did not present any malformation but had suffered from anoxia.", "In finding Y guilty of unintentional homicide and X, who was acquitted by the Criminal Court, liable for the civil consequences of that offence, the Court of Appeal held that the child ’ s death was a result of the negligent acts and omissions of both the doctor in failing to place the patient, who was beyond term, under closer observation and of the midwife in failing to notify an unequivocal anomaly noted when the child ’ s cardiac rhythm was recorded.", "After noting that the stillborn child did not present any organic lesion capable of explaining its death, the Court of Appeal stated: ‘ This child had reached term several days previously and, but for the fault that has been found, would have been capable of independent survival, with a human existence separate from its mother ’ s. ’", "However, by so holding, the Court of Appeal misapplied the provisions referred to above and the aforementioned principles.", "It follows that this appeal on points of law is allowed. The case will not be remitted, as the facts are not capable of coming within the definition of any criminal offence.", "... ”", "30. The Criminal Division of the Court of Cassation has held that a court of appeal gave valid reasons for finding a defendant guilty of the unintentional homicide of a child who died an hour after its birth on the day of a road traffic accident in which its mother, who was eight months ’ pregnant, was seriously injured, when it held that, by failing to control his vehicle, the driver had caused the child ’ s death an hour after birth as a result of irreversible lesions to vital organs sustained at the moment of impact ( Court of Cassation, Criminal Division, 2 December 2003).", "31. An article entitled “ Unintentional violence on pregnant women and the offence of unintentional homicide” ( Recueil Dalloz 2004, p. 449) notes that in twenty-eight out of a total of thirty-four articles commenting on the Criminal Division of the Court of Cassation ’ s judgment of 2 December 2003 ( see paragraph 30 above) the authors are critical of the Court of Cassation ’ s case-law (see paragraph 29 above ).", "The criticism includes : the laconic reasoning of the Court of Cassation ’ s judgments and incoherence of the protection afforded, as a person causing unintentional injury is liable to criminal prosecution while a person who unintentionally causes the death of the foetus goes unpunished; the fact that a child who has lived for a few minutes is recognised as having standing as a victim, whereas a child that dies in utero is ignored by the law; and the fact that freedom to procreate is less well protected than freedom to have an abortion.", "D. The Garraud amendment", "32. On 27 November 2003 the National Assembly adopted on its second reading a bill to adapt the criminal justice system to changes in criminality. The bill included the Garraud amendment, so named after the member of parliament who introduced it, which created an offence of involuntary termination of pregnancy (ITP ).", "33. The adoption of this amendment gave rise to fierce controversy and, after a week of consultations, the Minister of Justice, Mr Perben, declared on 5 December 2003 that the member ’ s proposal “caused more problems than it solved” and that he was in favour of abandoning it. On 23 January 2004 the Senate unanimously deleted the amendment. This was the second time the senators had rejected such a proposal, as they had already opposed it in April 2003 when examining the Reinforcement of Protection against Road Violence Act, passed on 12 June 2003.", "E. The laws on bioethics", "34. On 11 December 2003 the National Assembly adopted on its second reading a bill on bioethics with a view to reforming the 1994 laws on the donation and use of parts and products of the human body, medically assisted procreation and prenatal diagnosis, as envisaged by the legislature at the time, in order to take into account subsequent scientific and medical progress and new issues with which society was confronted. In view of the speed with which technological advances are made, the bill reinforces the guarantees on the provision of information and on seeking and obtaining consent, prohibits certain practices that are technically feasible (reproductive cloning) and provides a framework for those with a proven medical interest (research on embryos in vitro ). It establishes a regulatory and supervisory body ( the Procreation, Embryology and Human Genetics Agency) whose functions also include acting as a watchdog and providing support and expert guidance in these spheres (http://www.assemblee-nationale .fr/dossiers/bioethique.asp).", "III. EUROPEAN LAW", "A. The Oviedo Convention on Human Rights and Biomedicine", "35. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the Convention on Human Rights and Biomedicine, which was opened for signature on 4 April 1997 in Oviedo, came into force on 1 December 1999. In this convention, the member States of the Council of Europe, the other States and the European Community signatories to it,", "“ ...", "Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine,", "... agreed as follows:", "Chapter I – General provisions", "Article 1 – Purpose and object", "Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.", "Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.", "Article 2 – Primacy of the human being", "The interests and welfare of the human being shall prevail over the sole interest of society or science.", "...", "Chapter V – Scientific research", "...", "Article 18 – Research on embryos in vitro", "1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo.", "2. The creation of human embryos for research purposes is prohibited.", "...", "Chapter XI – Interpretation and follow-up of the Convention", "Article 29 – Interpretation of the Convention", "The European Court of Human Rights may give, without direct reference to any specific proceedings pending in a court, advisory opinions on legal questions concerning the interpretation of the present Convention at the request of:", "– the Government of a Party, after having informed the other Parties;", "– the Committee set up by Article 32, with membership restricted to the Representatives of the Parties to this Convention, by a decision adopted by a two-thirds majority of votes cast.", "... ”", "36. The commentary on Article 1 ( see paragraphs 16 to 19 of the explanatory report on the convention ) states :", "Article 1 – Purpose and object", "“ 16. This Article defines the Convention ’ s scope and purpose.", "17. The aim of the Convention is to guarantee everyone ’ s rights and fundamental freedoms and, in particular, their integrity and to secure the dignity and identity of human beings in this sphere.", "18. The Convention does not define the term ‘ everyone ’ (in French ‘ toute personne ’ ). These two terms are equivalent and found in the English and French versions of the European Convention on Human Rights, which however does not define them. In the absence of a unanimous agreement on the definition of these terms among member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention.", "19. The Convention also uses the expression ‘ human being ’ to state the necessity to protect the dignity and identity of all human beings. It was acknowledged that it was a generally accepted principle that human dignity and the identity of the human being had to be respected as soon as life began.", "... ”", "B. Additional Protocol to the Convention on Human Rights and Biomedicine, on the Prohibition of Cloning Human Beings ( 12 January 1998 )", "37. Article 1 of the Protocol provides :", "“ 1. Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited.", "2. For the purpose of this Article, the term human being ‘ genetically identical ’ to another human being means a human being sharing with another the same nuclear gene set.”", "C. Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research", "38. The draft Protocol was approved by the Steering Committee on Bioethics on 20 June 2003. It was submitted for approval to the Committee of Ministers of the Council of Europe, which sought a consultative opinion from the Parliamentary Assembly. On 30 April 2004 the Assembly issued an opinion (no. 252 (2004)) in which it declared itself in favour of the draft Protocol. On 30 June 2004 the Committee of Ministers adopted the text.", "Article 1 – Object and purpose", "“ Parties to this Protocol shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to any research involving interventions on human beings in the field of biomedicine. ”", "Article 2 – Scope", "“ 1. This Protocol covers the full range of research activities in the health field involving interventions on human beings.", "2. This Protocol does not apply to research on embryos in vitro. It does apply to research on foetuses and embryos in vivo.", "... ”", "Article 3 – Primacy of the human being", "“ The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science. ”", "Article 18 – Research during pregnancy or breastfeeding", "“ 1. Research on a pregnant woman which does not have the potential to produce results of direct benefit to her health, or to that of her embryo, foetus or child after birth, may only be undertaken if the following additional conditions are met:", "( i ) the research has the aim of contributing to the ultimate attainment of results capable of conferring benefit to other women in relation to reproduction or to other embryos, foetuses or children;", "... ”", "The explanatory report repeats the terms of the explanatory report on the convention.", "D. The Working Party on the Protection of the Human Embryo and Foetus : protection of the human embryo in vitro (2003)", "39. The Working Party on the Protection of the Human Embryo and Foetus set up by the Steering Committee on Bioethics reached the following conclusion in a report drawn up in 2003:", "“ This report aimed at giving an overview of current positions found in Europe regarding the protection of the human embryo in vitro and the arguments supporting them.", "It shows a broad consensus on the need for the protection of the embryo in vitro. However, the definition of the status of the embryo remains an area where fundamental differences are encountered, based on strong arguments. These differences largely form the basis of most divergences around the other issues related to the protection of the embryo in vitro.", "Nevertheless, even if agreement cannot be reached on the status of the embryo, the possibility of re - examining certain issues in the light of the latest developments in the biomedical field and related potential therapeutic advances could be considered. In this context, while acknowledging and respecting the fundamental choices made by the different countries, it seems possible and desirable with regard to the need to protect the embryo in vitro on which all countries have agreed, that common approaches be identified to ensure proper conditions for the application of procedures involving the creation and use of embryos in vitro. The purpose of this report is to aid reflection towards that objective. ”", "E. The European Group on Ethics in Science and New Technologies at the European Commission", "40. The Group has issued, inter alia, the following opinion on the ethical aspects of research involving the use of human embryos in the context of the 5th Framework Programme ( 23 November 1998 ):", "“ ...", "Legal background", "Controversies on the concept of beginning of life and ‘ personhood ’", "Existing legislation in the Member States differs considerably from one another regarding the question of when life begins and about the definition of ‘ personhood ’. As a result, no consensual definition, neither scientifically nor legally, of when life begins exists.", "Two main views about the moral status of the embryo and thus regarding the legal protection afforded to them with respect to scientific research exist:", "(i) human embryos are not considered as human beings and consequently have a relative worth of protection;", "(ii) human embryos have the same moral status as human beings and consequently are equally worthy of protection.", "The discussion of common rules on embryo research is continuing. Recently many European countries, when discussing and signing the Council of Europe Convention on Human Rights and Biomedicine, failed to reach a consensus concerning the definition of the embryo, and, therefore, were unable to find common ground on which to place the admissibility of human embryo research within the Convention. Hence, it is up to the Member States to legislate in this area. Yet, nevertheless, Article 18.1 of the Convention stipulates ‘ where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo ’.", "...", "Different approaches regarding the definition of the human embryo", "In most Member States there is presently no legal definition of the human embryo ( Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal and Sweden ). Among those Member States which define the embryo in their legislation, the existing definitions vary considerably from one country to another ( Austria, Germany, Spain and the United Kingdom ) ...", "...", "Different scope of national legislation", "Among the Member States with legal provisions on embryo research, there are many differences regarding the activities allowed and prohibited.", "There are countries where embryo research is allowed only for the benefit of the particular embryo ( Austria, Germany ). There are Member States where embryo research is exceptionally allowed ( France, Sweden ), or allowed under strict conditions ( Denmark, Finland, Spain, United Kingdom ).", "...", "Diversity of views", "The diversity of views regarding the question whether or not research on human embryos in vitro is morally acceptable, depends on differences in ethical approaches, philosophical theories and national traditions, which are deeply rooted in European culture. Two contrasting approaches exist: a deontological approach, in which duties and principles control the ends and consequences of our actions; and utilitarian or consequentialist approaches in which human actions are evaluated in terms of means and ends or consequences.", "...", "The group submits the following opinion", "In the preamble it appeared crucial to recall that the progress of knowledge of life sciences, which in itself has an ethical value, cannot, in any case, prevail over fundamental human rights and the respect which is due to all the members of the human family.", "The human embryo, whatever the moral or legal status conferred upon it in the different European cultures and ethical approaches, deserves legal protection. Even if taking into account the continuity of human life, this protection ought to be reinforced as the embryo and the foetus develop.", "The Treaty on European Union, which does not foresee legislative competence in the fields of research and medicine, implies that such protection falls within the competence of national legislation (as is the case for medically assisted procreation and voluntary interruption of pregnancy). However, Community authorities should be concerned with ethical questions resulting from medical practice or research dealing with early human development.", "However, when doing so, the said Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research, in the 15 Member States. It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code.", "The respect for different philosophical, moral or legal approaches and for diverse national culture is essential to the building of Europe.", "From an ethical point of view, the multicultural character of European society requires mutual tolerance to be shown by the citizens and political figures of the European Nation States that have chosen uniquely to tie their destiny together, while at the same time ensuring mutual respect for different historical traditions which are exceedingly strong.", "From a legal point of view, this multiculturalism is based upon Article 6 of the Amsterdam Treaty (ex Article F of the Treaty on European Union) which recognises fundamental rights at Union level notably based on ‘ constitutional traditions common to the Member States ’. It also declares that ‘ the Union shall respect the national identity of its Member States ’.", "It results from the aforementioned principles, that, in the scope of European research programmes, the question of research on the human embryo has to be approached, not only with regard to the respect for fundamental ethical principles, common to all Member States, but equally taking into consideration diverse philosophical and ethical conceptions, expressed through the practices and the national regulations in force in this field.", "... ”", "IV. COMPARATIVE LAW", "41. In the majority of the member States of the Council of Europe, the offence of unintentional homicide does not apply to the foetus. However, three countries have chosen to create specific offences. In Italy a person who negligently causes a pregnancy to terminate is liable to a prison sentence of between three months and two years under section 17 of the Abortion Act of 22 May 1978. In Spain Article 157 of the Criminal Code makes it a criminal offence to cause damage to the foetus and Article 146 an offence to cause an abortion through gross negligence. In Turkey Article 456 of the Criminal Code lays down that a person who causes damage to another shall be liable to a prison sentence of between six months and one year; if the victim is a pregnant woman and the damage results in premature birth, the Criminal Code prescribes a sentence of between two and five years ’ imprisonment.", "THE LAW", "I. ADMISSIBILITY OF THE APPLICATION", "42. The Government ’ s main submission was that the application was incompatible ratione materiae with the provisions of the Convention in that Article 2 did not apply to the unborn child. They further submitted that the applicant had had a legal remedy capable of redressing her complaint, namely an action for damages against the hospital in the administrative courts. Accordingly, she had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. In the alternative, they considered that the application should be rejected as being manifestly ill-founded.", "43. The applicant complained of the lack of protection of the unborn child under French criminal law and argued that the State had failed to discharge its obligations under Article 2 of the Convention by not allowing the offence of unintentional homicide to cover injury to an unborn child. She further submitted that the remedy available in the administrative courts was ineffective as it was incapable of securing judicial acknowledgment of the homicide of her child as such. Lastly, the applicant asserted that she had had a choice between instituting criminal and administrative proceedings and that, while her recourse to the criminal courts had, unforeseeably, proved unsuccessful, the possibility of applying to the administrative courts had in the meantime become statute-barred.", "44. The Court observes that an examination of the application raises the issue whether Article 2 of the Convention is applicable to the involuntary termination of pregnancy and, if so, whether that provision required a criminal remedy to be available in the circumstances of the case or whether its requirements were satisfied by the possibility of an action for damages in the administrative courts. Considered in those terms, the objections that the application is incompatible ratione materiae with the provisions of the Convention and that the applicant failed to exhaust domestic remedies are very closely linked to the substance of the applicant ’ s complaint under Article 2. Consequently, the Court considers it appropriate to join them to the merits (see, among other authorities, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 11, § 19).", "45. The application cannot therefore be declared inadmissible either as being incompatible ratione materiae with the provisions of the Convention or for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. The Court further considers that the application raises issues of fact and law which require examination of the merits. It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacle to its admissibility exists, the Court declares it admissible.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "46. The applicant complained of the authorities ’ refusal to classify the taking of her unborn child ’ s life as unintentional homicide. She argued that the absence of criminal legislation to prevent and punish such an act breached Article 2 of the Convention, which provides:", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "A. The parties ’ submissions", "1. The applicant", "47. The applicant asserted that the point at which life began had a universal meaning and definition. Even though that was in the nature of things, it was now scientifically proven that all life began at fertilisation. That was an experimental finding. A child that had been conceived but not yet born was neither a cluster of cells nor an object, but a person. Otherwise, it would have to be concluded that in the instant case she had not lost anything. Such an argument was unacceptable for a pregnant woman. Accordingly, the term “everyone” (“ toute personne ”) in Article 2 of the Convention was to be taken to mean human beings rather than individuals with the attributes of legal personality. Indeed, that had been the position taken by the Conseil d ’ Etat and the Court of Cassation, which, having agreed to review the compatibility of the Termination of Pregnancy Act with Article 2, had been compelled to accept that, from the first moments of its life in the womb, the unborn child came within the scope of that provision ( Conseil d ’ Etat ( full court ), 21 December 1990, Recueil Lebon, p. 368; Court of Cassation (Criminal Division), 27 November 1996, Bulletin criminel no. 431).", "48. In the applicant ’ s submission, French law guaranteed all human beings the right to life from conception, subject to certain exceptions provided for by law in the case of abortion. In that connection, she added that all forms of abortion, with the exception of therapeutic abortion, were incompatible with Article 2 of the Convention on account of the interference with the right to life of the conceived child. Even if it were accepted that, subject to certain conditions, States could allow women to have an abortion if they requested one, the Contracting States were not at liberty to exclude the unborn child from the protection of Article 2. A distinction should be made between the rule and the exception. Section 1 of the Voluntary Termination of Pregnancy Act of 1975 (reproduced in Article 16 of the Civil Code and Article L. 2211-1 of the Public Health Code – see paragraph 28 above) laid down the rule, namely respect for every human being from the beginning of its life, and subsequently provided for an exception in case of necessity and in accordance with conditions defined by law. The legislature had also implicitly accepted that life began at the moment of conception by laying down a number of rules protecting the embryo in vitro in the laws on bioethics of 29 July 1994 (see paragraph 34 above). Accordingly, although death could in exceptional cases prevail over life, life remained the fundamental value protected by the Convention. The exception should not rule out the possibility of punishing a third party who, through negligence, caused an unborn child to die. The mother ’ s wishes could not be equated with negligence on the part of a third party. The Court could therefore validly hold that the Contracting Parties ’ legislation should ensure the protection of the conceived child by making unintentional homicide of the latter a criminal offence, even if their legislation also permitted abortion.", "49. The applicant pointed out that, as the Court had held, States had “a primary duty ... to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions” (see Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000-III, and Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000-III). In her submission, the new line of case-law adopted by the Court in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR 2002-I), to the effect that where the right to life had been infringed unintentionally the judicial system did not necessarily require the provision of a criminal-law remedy, could not be followed in the instant case, because a civil remedy did not “satisfy the requirement of expressing public disapproval of a serious offence, such as the taking of life” ( see the partly dissenting opinion of Judge Rozakis joined by Judges Bonello and Strážnická in the above-mentioned case ). That would amount to debasing the right to life protected by Article 2. The applicant therefore considered that creating the offence of involuntary termination of pregnancy would fill the vacuum created by the Court of Cassation and would compensate for the State ’ s failure to fulfil its duty to protect the human being at the earliest stages of its development (see paragraph 32 above).", "50. The applicant argued that she had had the option of instituting criminal or administrative proceedings and had been able to choose between the two types of court. She explained that she had chosen to bring criminal proceedings because, firstly, they were the only remedy capable of securing judicial acknowledgment of the unintentional homicide of her child as such and, secondly, because a criminal investigation aided in the task of establishing responsibility. In her submission, there had been nothing to suggest that the criminal proceedings were bound to fail, as the position adopted by the Court of Cassation in her case in 1999 and subsequently confirmed in 2001 and 2002 had by no means been definitively established, in view of the resistance shown in decisions by courts of appeal and the virtually unanimous criticism by legal writers (see paragraph 3 1 above). For example, in a judgment of 3 February 2000 (Reims Court of Appeal, Dalloz 2000, case-law, p. 873), the Court of Appeal had convicted a motorist of unintentional homicide for driving into another vehicle, seriously injuring the driver, who was eight months ’ pregnant, and subsequently causing the death of the baby (see also Versailles Court of Appeal, 19 January 2000, unreported). The applicant submitted in conclusion that, on the face of it, she had had no reason to apply to the administrative courts and contended that she could not have known whether to do so until Dr G. had been acquitted by the Criminal Court. However, by that time an action against the administrative authorities had already become statute-barred. The remedy in the administrative courts could not therefore be regarded as effective within the meaning of Article 35 § 1 of the Convention.", "2. The Government", "51. After emphasising that neither metaphysics nor medicine had given a definitive answer to the question whether and from what moment a foetus was a human being, the Government asserted that from a legal standpoint Article 2 of the Convention did not protect the foetus ’ s right to life as a person. The use of the term “everyone” (“ toute personne ”) in Article 2 and in Articles 5, 6, 8 to 11 and 13 of the Convention was such that it could apply only postnatally ( see X v. the United Kingdom, no. 8416/79, Commission decision of 13 May 1980, Decisions and Reports (DR) 19, p. 244). The same observation applied to Article 2 taken separately, as all the restrictions on “everyone ’ s” right to life provided for in paragraph 2 concerned, by their very nature, persons who had already been born.", "52. Nor could the “right to life” referred to in the same Article be construed as applying to the foetus; it concerned only the life of persons who had already been born alive, since it would be neither consistent nor justified to detach that right from the entity in which it was vested, namely the person. Whereas, by contrast, Article 4 § 1 of the 1969 American Convention on Human Rights provided: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception”, the signatories to the Convention would not have envisaged such an extension of Article 2 of the Convention since by 1950 virtually all the Contracting Parties had already authorised abortion in certain circumstances. To acknowledge that the foetus had the right to life within the meaning of Article 2 would place the mother ’ s life and that of the foetus on an equal footing. Furthermore, prioritising the protection of the foetus ’ s life or restricting it solely in the event of a severe, immediate and insurmountable risk to the mother ’ s life would constitute a step backwards historically and socially and would call into question the legislation in force in many States Parties to the Convention.", "53. The Government pointed out that the Commission had considered whether it was appropriate to recognise the foetus as having the right to life subject to certain restrictions relating to the protection of the mother ’ s life and health (see X. v. the United Kingdom, cited above). They submitted that such a limitation would not allow recourse to abortion for therapeutic, moral or social reasons, which at the time when the text of the Convention was being negotiated had nonetheless already been authorised by the legislation of a number of countries. It would amount to penalising States that had opted for the right to abortion as an expression and application of a woman ’ s autonomy over her own body and her right to control her maternity. The States Parties had not intended to confer on the expression “right to life” a meaning that extended to the foetus and was manifestly contrary to their domestic legislation.", "54. Having regard to the foregoing, the Government considered that the Convention was not designed to cover the foetus and that if the European States wished to ensure effective protection of the foetus ’ s right to life, a provision separate from Article 2 would have to be drawn up. To construe Article 2 as allowing implicit exceptions to the right to life would be at variance with both the letter and the spirit of that Article. Firstly, the permissible exceptions formed an exhaustive list, there being no other option where such a fundamental right was concerned; here, the Government referred to the Pretty case in which the Court had stated: “[Article 2] sets out the limited circumstances when deprivation of life may be justified” ( see Pretty v. the United Kingdom, no. 2346/02, § 37, ECHR 2002-III). Secondly, the exceptions were to be understood and construed strictly ( see Öcalan v. Turkey, no. 46221/99, § 201, 12 March 2003 ).", "55. The Government observed that in the instant case the applicant had undergone a therapeutic abortion as a result of acts carried out by the doctor outside the statutory period within which abortion was permitted, which had been ten weeks at the time and was now twelve weeks (see paragraphs 27 ‑ 28 above). However, if the Court were to take the view that that factor rendered Article 2 applicable, and that the foetus should therefore be regarded as a person protected by that provision, they pointed out that in several European States the statutory period for abortion was more than twenty weeks, for example in the Netherlands or in England (where abortions could be carried out at up to twenty-four weeks). Unless domestic legislation and the national authorities ’ margin of appreciation in this sphere were to be called into question, Article 2 could consequently not apply to the unborn child. That also meant, in the Government ’ s submission, that the issue of the viability of the foetus was irrelevant in the instant case. It would be paradoxical for States to have a margin of appreciation allowing them to exclude the foetus from protection under Article 2 where a pregnancy was terminated intentionally with the mother ’ s consent – and sometimes on that condition alone – if they were not granted the same margin of appreciation in excluding the foetus from the scope of that provision where a pregnancy was interrupted on account of unintentional negligence.", "56. In the alternative, the Government pointed out that in French law the foetus was protected indirectly through the pregnant woman ’ s body, of which it was an extension. That was the case where abortion was carried out intentionally but not in one of the cases exhaustively listed in the relevant legislation (Article 223-10 of the Criminal Code – see paragraph 25 above), or in the event of an accident. In the latter case, the ordinary remedies for establishing civil liability could be used, and the mother could be awarded compensation for personal, pecuniary and non-pecuniary damage, her pregnant state being necessarily taken into account. Furthermore, under the criminal law, anyone who through inadvertence caused a pregnancy to be terminated could be prosecuted for causing unintentional injury, the destruction of the foetus being regarded as damage to the woman ’ s organs.", "57. The Government argued that the applicant could have sought damages from the hospital for the doctor ’ s negligence within the four-year limitation period for actions for damages in the administrative courts. They explained that victims of damage caused by public servants had two distinct remedies available. If the damage resulted from personal negligence on the part of the public servant, not intrinsically connected with the performance of his or her duties, the victim could obtain compensation by suing the person concerned in the ordinary courts, whereas if the damage resulted from negligence that disclosed failings on the part of the authority in question, the matter would be classified as official negligence and come within the jurisdiction of the administrative courts. The Government submitted that in Epoux V. ( judgment of 10 April 1992 ) the Conseil d ’ Etat had abandoned its position that a hospital department could incur liability only in cases of gross negligence. Furthermore, an exception to the rule that the hospital was liable in the event of medical negligence occurred where negligence was deemed to be severable from the public service, either because it was purely personal and thus wholly unrelated to the performance of official duties – which had not been the case in this instance – or because it was intentional or exceptionally serious, amounting to inexcusable professional misconduct of such gravity that it ceased to be regarded as indissociable from the performance of the official duties in question. The Government explained that personal and official negligence were in fact usually interlinked, particularly in cases of unintentional injury or homicide. For that reason, the Conseil d ’ Etat had accepted long ago that the personal liability of a public servant did not exclude the liability of the authority to which he or she was attached ( Epoux Lemonnier, 1918). The Government therefore considered that the applicant had had the possibility of seeking redress in the administrative courts as soon as the damage had occurred, without having to wait for the criminal proceedings to end. Such an action would have been all the more likely to succeed as, for the hospital to be held liable, only ordinary negligence had to be made out, and the expert reports ordered by the courts had referred precisely to the hospital department ’ s organisational problems. The administrative courts could therefore legitimately have been expected to reach the same conclusion.", "58. The Government asserted that that remedy had been effective and adequate in terms of the positive obligations under Article 2 of the Convention (see Calvelli and Ciglio, cited above) and that the applicant had, through her own inaction or negligence, deprived herself of a remedy which had nonetheless been available to her for four years from the time when the damage had occurred, and in respect of which she could have received advice from her lawyers. In Calvelli and Ciglio there had been no doubt that Article 2 of the Convention was applicable to a newborn child. In the instant case, in which the applicability of Article 2 was questionable, there were therefore additional reasons for considering that the possibility of using civil or administrative remedies to establish liability was sufficient. In the Government ’ s submission, such an action for damages could have been based on the taking of the life of the child the applicant was carrying, since the relevant case-law of the administrative courts did not appear thus far to preclude the possibility of affording embryos protection under Article 2 of the Convention ( Conseil d ’ Etat ( full court ), Confédération nationale des associations familiales catholiques et autres, judgment of 21 December 1990 – see paragraph 47 above). At the material time, in any event, the issue had not been clearly resolved by the Conseil d ’ Etat.", "59. In conclusion, the Government considered that, even supposing that Article 2 was applicable in the instant case, that provision did not require the life of the foetus to be protected by the criminal law in the event of unintentional negligence, as was the position in many European countries.", "B. Third-party interventions", "1. Center for Reproductive Rights", "60. The Center for Reproductive Rights (CRR) submitted that unborn foetuses could not be treated as persons under the law and hence covered by Article 2 of the Convention because there was no legal basis for such an approach (i), and because granting them that status would interfere with women ’ s basic human rights (ii). Lastly, they argued that it would be inadvisable to extend rights to the foetus because the loss of a wanted foetus constituted an injury to the expectant mother (iii).", "61. (i) The assertion that a foetus was a person ran counter to the case-law of the Convention institutions, the legislation of the member States of the Council of Europe, international standards and the case-law of courts throughout the world. Relying on the decisions in X v. the United Kingdom (Commission decision cited above), H. v. Norway (no. 17004/90, Commission decision of 19 May 1992, DR 73, p. 155) and, most recently, Boso v. Italy (no. 50490/99, ECHR 2002-VII), in which the Commission and the Court had held that granting a foetus the same rights as a person would place unreasonable limitations on the Article 2 rights of persons already born, the CRR saw no reason to depart from that conclusion unless the right to abortion in all Council of Europe member States were to be called into question.", "62. The foetus was not recognised as a person in European domestic legislation or by the national courts interpreting it. The CRR drew attention to the Court of Cassation ’ s settled position (see paragraph 29 above), which was consistent with the distinction made in French law between the concepts of “human being” and “person”, the former being a biological concept and the latter a legal term attached to a legal category whose rights took effect and were perfected at birth, although in certain circumstances the rights acquired at birth were retroactive to conception. The national courts had also addressed the issue of the legal status of the person in the context of abortion. For example, the Austrian and Netherlands Constitutional Courts had held that Article 2 should not be interpreted as protecting the unborn child, and the French Constitutional Council had found no conflict between legislation on the voluntary termination of pregnancy and the constitutional protection of the child ’ s right to health (decision no. 74-54 of 15 January 1975 ). That reading was consistent with the relevant legislation throughout Europe: thirty-nine member States of the Council of Europe – the exceptions being Andorra, Ireland, Liechtenstein, Malta, Poland and San Marino, which had maintained severe restrictions on abortion (with only very narrow therapeutic exceptions) – permitted a woman to terminate a pregnancy without restriction during the first trimester or on very broad therapeutic grounds.", "63. With regard to international and regional standards, the CRR observed that the International Covenant on Civil and Political Rights provided no indication that the right to life applied to a foetus. It added that the Human Rights Committee had routinely emphasised the threat to women ’ s lives posed by illegal abortions. The same was true of the Convention on the Rights of the Child and the interpretation by the Committee on the Rights of the Child of Article 6, which provided: “Every child has the inherent right to life. ” On several occasions the Committee had stated its concern about the difficulties of adolescent girls in having their pregnancies terminated in safe conditions and had expressed its fears as to the impact of punitive legislation on maternal mortality rates. The case-law of the Inter-American regional system, notwithstanding Article 4 of the American Convention on Human Rights (see paragraph 52 above), did not provide absolute protection to a foetus before birth. The Inter-American Commission on Human Rights had held in Baby Boy (1981) that Article 4 did not preclude liberal national-level abortion legislation. Furthermore, the Organisation of African Unity had adopted the Protocol on the Rights of Women on 11 July 2003 to supplement the African Charter on Human and Peoples ’ Rights of 27 June 1981, broadening the protection of the right of women to terminate a pregnancy.", "64. Lastly, with regard to non-European States, the CRR noted that the Supreme Courts of Canada and the United States had declined to treat unborn foetuses as persons under the law (in Winnipeg Child Family Services v. G. (1997) and Roe v. Wade (1973)). The United States Supreme Court had reaffirmed that position in a recent case in 2000 ( Stenberg v. Carhart ), in which it had declared unconstitutional a State law prohibiting certain methods of abortion and providing no protection for women ’ s health. Similarly, in South Africa, ruling on a constitutional challenge to the recently enacted Choice on Termination of Pregnancy Act, which permitted abortion without restriction during the first trimester and on broad grounds at later stages of pregnancy, the High Court had considered that the foetus was not a legal person ( Christian Lawyers Association of South Africa and Others v. Minister of Health and Others, 1998).", "65. (ii) In the CRR ’ s submission, recognition of the foetus ’ s rights interfered, in particular, with women ’ s fundamental right to a private life. In Brüggemann and Scheuten v. Germany ( no. 6959/75, Commission ’ s report of 12 July 1977, DR 10, p. 100), the Commission had implicitly accepted that an absolute prohibition on abortion would be an impermissible interference with privacy rights under Article 8 of the Convention. Subsequently, while rejecting the suggestion that Article 2 protected the right to life of foetuses, the Convention institutions had further recognised that the right to respect for the private life of the pregnant woman, as the person primarily concerned by the pregnancy and its continuation or termination, prevailed over the father ’ s rights (see paragraph 61 above). In addition to respect for private life, the preservation of the pregnant woman ’ s life and health took precedence. In holding that restrictions on the exchange of information on abortion created a risk to the health of women whose pregnancies posed a threat to their lives, the Court had ruled that the injunction in question had been “disproportionate to the aims pursued” and that, consequently, a woman ’ s health interest prevailed over a State ’ s declared moral interest in protecting the rights of a foetus (see Open Door and Dublin Well Woman v. Ireland, judgment of 29 October 1992, Series A no. 246-A).", "66. (iii) In the CRR ’ s submission, declining to recognise the foetus as a person under Article 2 did not preclude a remedy for injuries such as the one that had given rise to the instant case. The loss of a wanted foetus was an injury suffered by the expectant mother. Consequently, the rights that were entitled to protection in the instant case were those of the applicant and not those of the foetus she had lost. It was within the power of the legislature of every Council of Europe member State to recognise both civil and criminal offences committed by individuals who injured a woman by causing the termination of a wanted pregnancy.", "2. Family Planning Association", "67. The Family Planning Association (FPA) set out primarily to argue that the right to life enshrined in Article 2 of the Convention should not be interpreted as extending to the unborn (i). In support of that argument, the FPA provided the Court with information on the current legal position on abortion in the member States of the Council of Europe (ii), and a summary of the legal status of the unborn in United Kingdom law (iii).", "68. (i) The FPA pointed out that Article 2 was drafted in such a way as to allow only very limited exceptions to the prohibition it imposed on intentional deprivation of life. Voluntary termination of pregnancy was not one of those exceptions; nor could any of the exceptions be interpreted to include that practice. Recent evidence showed that voluntary termination of pregnancy on request in the first trimester was now widely accepted across Europe, as was termination on certain grounds in the second trimester. If Article 2 were interpreted as applying to the unborn from the moment of conception, as contended by the applicant, the Court would be calling into question the laws on abortion enacted in most Contracting States. Furthermore, that would render illegal the majority of methods of contraception currently in use throughout Europe, since they acted or could act after conception to prevent implantation. There would therefore be devastating implications in terms of both individual choices and lives and social policy. The English High Court had recently acknowledged that that would be the undesirable consequence if it were to accept the argument of the Society for the Protection of Unborn Children that emergency hormonal contraceptives were abortifacients because pregnancy began at conception (see Society for the Protection of Unborn Children v. Secretary of State for Health [2002 ] High Court, Administrative Court (England and Wales) ).", "69. The possibility that Article 2 applied to the foetus but with certain implied limitations, for example only after a critical point in time (viability or some other gestational stage) should likewise be rejected. Recent evidence showed that, beyond the broad consensus identified above, there was a complete lack of any generally accepted standard in relation to the gestational limit on the availability of abortion, the grounds on which termination was available after that point in time, or the conditions that had to be satisfied.", "70. (ii) Recent survey information was available ( Abortion Legislation in Europe, International Planned Parenthood Federation (IPPF) European Network, July 2002, and Abortion Policies: a Global Review, United Nations Population Division, June 2002) in relation to the legal position on abortion in the Council of Europe member States with the exception of Serbia and Montenegro. The surveys showed that four States essentially prohibited abortion, except where the pregnant woman ’ s life was endangered (Andorra, Liechtenstein, San Marino and Ireland), whereas the great majority of member States provided for much wider access to abortion services. Such evidence of the availability of abortion across Europe was in keeping with the general trend towards the liberalisation of abortion laws. No general consensus emerged from the practice of the member States as to the period during which abortion was permitted after the first trimester or the conditions that had to be satisfied for abortion to be available in the later stages of pregnancy. Furthermore, the grounds on which abortion was permitted without a time-limit were many and varied. The FPA accordingly contended that if Article 2 were interpreted as applying to the unborn from some particular point in time, that would call into question the legal position in a number of States where termination was available on certain grounds at a later stage than that determined by the Court.", "71. (iii) It was now a settled general principle of the common law that in the United Kingdom legal personality crystallised upon birth. Up until that point, the unborn had no legal personality independent of the pregnant woman. However, despite that lack of legal personality, the interests of the unborn were often protected while they were in the womb, even though those interests could not be realised as enforceable rights until the attainment of legal personality on birth.", "72. In the civil law, that specifically meant that prior to birth the unborn had no standing to bring proceedings for compensation or other judicial remedies in relation to any harm done or injury sustained while in the womb, and that no claim could be made on their behalf (see Paton v. British Pregnancy Advisory Service Trustees [1979] Queen ’ s Bench Reports 276). Efforts had been made to persuade the courts dealing with such cases that according to the law of succession, the unborn could be deemed to be “born” or “persons in being” whenever their interests so demanded. However, Burton confirmed that that principle was also subject to the live birth of a child ([1993] Queen ’ s Bench Reports 204, 227).", "73. In the criminal law, it was well established that the unborn were not treated as legal persons for the purpose of the common-law rules of murder or manslaughter. In Attorney-General ’ s Reference (no. 3, 1994), the House of Lords had concluded that injury of the unborn without a live birth could not lead to a conviction for murder, manslaughter or any other violent crime. The rights of the unborn were further protected by the criminal law on abortion. Sections 58 and 59 of the Offences against the Person Act 1861 had introduced the statutory offences of procuring abortion and procuring the means to cause abortion. Similarly, by section 1 of the Infant Life (Preservation) Act 1929 the destruction of the unborn, where capable of live birth, was a serious offence. Those Acts were still in force. Abortion and child destruction remained illegal, subject to the application of the Abortion Act 1967.", "C. The Court ’ s assessment", "74. The applicant complained that she had been unable to secure the conviction of the doctor whose medical negligence had caused her to have to undergo a therapeutic abortion. It has not been disputed that she intended to carry her pregnancy to full term and that her child was in good health. Following the material events, the applicant and her partner lodged a criminal complaint, together with an application to join the proceedings as civil parties, alleging unintentional injury to the applicant and unintentional homicide of the child she was carrying. The courts held that the prosecution of the offence of unintentional injury to the applicant was statute-barred and, quashing the Court of Appeal ’ s judgment on the second point, the Court of Cassation held that, regard being had to the principle that the criminal law was to be strictly construed, a foetus could not be the victim of unintentional homicide. The central question raised by the application is whether the absence of a criminal remedy within the French legal system to punish the unintentional destruction of a foetus constituted a failure on the part of the State to protect by law the right to life within the meaning of Article 2 of the Convention.", "1. Existing case-law", "75. Unlike Article 4 of the American Convention on Human Rights, which provides that the right to life must be protected “in general, from the moment of conception”, Article 2 of the Convention is silent as to the temporal limitations of the right to life and, in particular, does not define “everyone” (“ toute personne ” ) whose “life” is protected by the Convention. The Court has yet to determine the issue of the “beginning” of “everyone ’ s right to life” within the meaning of this provision and whether the unborn child has such a right.", "To date it has been raised solely in connection with laws on abortion. Abortion does not constitute one of the exceptions expressly listed in paragraph 2 of Article 2, but the Commission has expressed the opinion that it is compatible with the first sentence of Article 2 § 1 in the interests of protecting the mother ’ s life and health because “if one assumes that this provision applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the ‘ right to life ’ of the foetus” (see X v. the United Kingdom, Commission decision cited above, p. 253).", "76. Having initially refused to examine in abstracto the compatibility of abortion laws with Article 2 of the Convention (see X v. Norway, no. 867/60, Commission decision of 29 May 1961, Collection of Decisions, vol. 6, p. 34, and X v. Austria, no. 7045/75, Commission decision of 10 December 1976, DR 7, p. 87), the Commission acknowledged in Brüggemann and Scheuten (cited above) that women complaining under Article 8 of the Convention about the Constitutional Court ’ s decision restricting the availability of abortions had standing as victims. It stated on that occasion: “... pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a woman is pregnant her private life becomes closely connected with the developing foetus” (ibid., p. 116, § 59). However, the Commission did not find it “necessary to decide, in this context, whether the unborn child is to be considered as ‘ life ’ in the sense of Article 2 of the Convention, or whether it could be regarded as an entity which under Article 8 § 2 could justify an interference ‘ for the protection of others ’ ” (ibid., p. 116, § 60). It expressed the opinion that there had been no violation of Article 8 of the Convention because “not every regulation of the termination of unwanted pregnancies constitutes an interference with the right to respect for the private life of the mother” (ibid., pp. 116-17, § 61), while emphasising: “There is no evidence that it was the intention of the Parties to the Convention to bind themselves in favour of any particular solution” (ibid., pp. 117-18, § 64).", "77. In X v. the United Kingdom ( cited above ), the Commission considered an application by a man complaining that his wife had been allowed to have an abortion on health grounds. While it accepted that the potential father could be regarded as the “victim” of a violation of the right to life, it considered that the term “everyone” in several Articles of the Convention could not apply prenatally, but observed that “such application in a rare case – e.g. under Article 6, paragraph 1 – cannot be excluded” (p. 2 4 9, § 7; for such an application in connection with access to a court, see Reeve v. the United Kingdom, no. 2484 4/94, Commission decision of 30 November 1994, DR 79-A, p. 146). The Commission added that the general usage of the term “everyone” (“ toute personne ”) and the context in which it was used in Article 2 of the Convention did not include the unborn. As to the term “life” and, in particular, the beginning of life, the Commission noted a “divergence of thinking on the question of where life begins” and added: “While some believe that it starts already with conception, others tend to focus upon the moment of nidation, upon the point that the foetus becomes ‘ viable ’, or upon live birth” ( X v. the United Kingdom, p. 250, § 12).", "The Commission went on to examine whether Article 2 was “to be interpreted: as not covering the foetus at all; as recognising a ‘ right to life ’ of the foetus with certain implied limitations; or as recognising an absolute ‘ right to life ’ of the foetus” (ibid. p. 251, § 17). Although it did not express an opinion on the first two options, it categorically ruled out the third interpretation, having regard to the need to protect the mother ’ s life, which was indissociable from that of the unborn child: “The ‘ life ’ of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the ‘ unborn life ’ of the foetus would be regarded as being of a higher value than the life of the pregnant woman” (ibid., p. 252, § 19). The Commission adopted that solution, noting that by 1950 practically all the Contracting Parties had “permitted abortion when necessary to save the life of the mother” and that in the meantime the national law on termination of pregnancy had “shown a tendency towards further liberalisation” (ibid., p. 252, § 20).", "78. In H. v. Norway (cited above), concerning an abortion carried out on non-medical grounds against the father ’ s wishes, the Commission added that Article 2 required the State not only to refrain from taking a person ’ s life intentionally but also to take appropriate steps to safeguard life (p. 167). It considered that it did not have to decide “whether the foetus may enjoy a certain protection under Article 2, first sentence”, but did not exclude the possibility that “in certain circumstances this may be the case notwithstanding that there is in the Contracting States a considerable divergence of views on whether or to what extent Article 2 protects the unborn life” (ibid.). It further noted that in such a delicate area the Contracting States had to have a certain discretion, and concluded that the mother ’ s decision, taken in accordance with Norwegian legislation, had not exceeded that discretion ( p. 168).", "79. The Court has only rarely had occasion to consider the application of Article 2 to the foetus. In Open Door and Dublin Well Woman (cited above ), the Irish Government relied on the protection of the life of the unborn child to justify their legislation prohibiting the provision of information concerning abortion facilities abroad. The only issue that was resolved was whether the restrictions on the freedom to receive and impart the information in question had been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 of the Convention, to pursue the “legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn is one aspect” (pp. 27 ‑ 28, § 63), since the Court did not consider it relevant to determine “whether a right to abortion is guaranteed under the Convention or whether the foetus is encompassed by the right to life as contained in Article 2” (p. 28, § 66). Recently, in circumstances similar to those in H. v. Norway (cited above), where a woman had decided to terminate her pregnancy against the father ’ s wishes, the Court held that it was not required to determine “whether the foetus may qualify for protection under the first sentence of Article 2 as interpreted [in the case-law relating to the positive obligation to protect life]”, and continued: “Even supposing that, in certain circumstances, the foetus might be considered to have rights protected by Article 2 of the Convention, ... in the instant case ... [the] pregnancy was terminated in conformity with section 5 of Law no. 194 of 1978” – a law which struck a fair balance between the woman ’ s interests and the need to ensure protection of the foetus (see Boso, cited above ).", "80. It follows from this recapitulation of the case-law that in the circumstances examined to date by the Convention institutions – that is, in the various laws on abortion – the unborn child is not regarded as a “person” directly protected by Article 2 of the Convention and that if the unborn do have a “right” to “life”, it is implicitly limited by the mother ’ s rights and interests. The Convention institutions have not, however, ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child. That is what appears to have been contemplated by the Commission in considering that “Article 8 § 1 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother” (see Brüggemann and Scheuten, cited above, pp. 116-17, § 61) and by the Court in the above-mentioned Boso decision. It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-à-vis an unborn child.", "2. Approach in the instant case", "81. The special nature of the instant case raises a new issue. The Court is faced with a woman who intended to carry her pregnancy to term and whose unborn child was expected to be viable, at the very least in good health. Her pregnancy had to be terminated as a result of an error by a doctor and she therefore had to have a therapeutic abortion on account of negligence by a third party. The issue is consequently whether, apart from cases where the mother has requested an abortion, harming a foetus should be treated as a criminal offence in the light of Article 2 of the Convention, with a view to protecting the foetus under that Article. This requires a preliminary examination of whether it is advisable for the Court to intervene in the debate as to who is a person and when life begins, in so far as Article 2 provides that the law must protect “everyone ’ s right to life”.", "82. As is apparent from the above recapitulation of the case-law, the interpretation of Article 2 in this connection has been informed by a clear desire to strike a balance, and the Convention institutions ’ position in relation to the legal, medical, philosophical, ethical or religious dimensions of defining the human being has taken into account the various approaches to the matter at national level. This has been reflected in the consideration given to the diversity of views on the point at which life begins, of legal cultures and of national standards of protection, and the State has been left with considerable discretion in the matter, as the opinion of the European Group on Ethics in Science and New Technologies at the European Commission appositely puts it: “the ... Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research ... It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code” (see paragraph 40 above).", "It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a “living instrument which must be interpreted in the light of present-day conditions” (see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31, and subsequent case-law). The reasons for that conclusion are, firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves, in France in particular, where it is the subject of debate (see paragraph 83 below) and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life (see paragraph 84 below).", "83. The Court observes that the French Court of Cassation, in three successive judgments delivered in 1999, 2001 and 2002 (see paragraphs 22 and 29 above), considered that the rule that offences and punishment must be defined by law, which required criminal statutes to be construed strictly, excluded acts causing a fatal injury to a foetus from the scope of Article 221-6 of the Criminal Code, under which unintentional homicide of “another” is an offence. However, if, as a result of unintentional negligence, the mother gives birth to a live child who dies shortly after being born, the person responsible may be convicted of the unintentional homicide of the child (see paragraph 30 above). The first-mentioned approach, which conflicts with that of several courts of appeal (see paragraphs 21 and 50 above), was interpreted as an invitation to the legislature to fill a legal vacuum. That was also the position of the Criminal Court in the instant case: “The court ... cannot create law on an issue which [the legislature has] not yet succeeded in defining.” The French parliament attempted such a definition in proposing to create the offence of involuntary termination of pregnancy (see paragraph 32 above), but the bill containing that proposal was lost, on account of the fears and uncertainties that the creation of the offence might arouse as to the determination of when life began, and the disadvantages of the proposal, which were thought to outweigh its advantages (see paragraph 33 above). The Court further notes that alongside the Court of Cassation ’ s repeated rulings that Article 221-6 of the Criminal Code does not apply to foetuses, the French parliament is currently revising the 1994 laws on bioethics, which added provisions to the Criminal Code on the protection of the human embryo (see paragraph 25 above) and required re-examination in the light of scientific and technological progress (see paragraph 34 above). It is clear from this overview that in France the nature and legal status of the embryo and/or foetus are currently not defined and that the manner in which it is to be protected will be determined by very varied forces within French society.", "84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus (see paragraphs 39- 40 above), although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person – enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the United Kingdom (see paragraph 72 above) – require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2. The Oviedo Convention on Human Rights and Biomedicine, indeed, is careful not to give a definition of the term “everyone”, and its explanatory report indicates that, in the absence of a unanimous agreement on the definition, the member States decided to allow domestic law to provide clarification for the purposes of the application of that Convention (see paragraph 36 above). The same is true of the Additional Protocol on the Prohibition of Cloning Human Beings and the Additional Protocol on Biomedical Research, which do not define the concept of “human being” (see paragraphs 37 - 38 above). It is worth noting that the Court may be requested under Article 29 of the Oviedo Convention to give advisory opinions on the interpretation of that instrument.", "85. Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention (“ personne ” in the French text). As to the instant case, it considers it unnecessary to examine whether the abrupt end to the applicant ’ s pregnancy falls within the scope of Article 2, seeing that, even assuming that that provision was applicable, there was no failure on the part of the respondent State to comply with the requirements relating to the preservation of life in the public-health sphere. With regard to that issue, the Court has considered whether the legal protection afforded the applicant by France in respect of the loss of the unborn child she was carrying satisfied the procedural requirements inherent in Article 2 of the Convention.", "86. In that connection, it observes that the unborn child ’ s lack of a clear legal status does not necessarily deprive it of all protection under French law. However, in the circumstances of the present case, the life of the foetus was intimately connected with that of the mother and could be protected through her, especially as there was no conflict between the rights of the mother and the father or of the unborn child and the parents, the loss of the foetus having been caused by the unintentional negligence of a third party.", "87. In Boso, cited above, the Court said that even supposing that the foetus might be considered to have rights protected by Article 2 of the Convention (see paragraph 79 above), Italian law on the voluntary termination of pregnancy struck a fair balance between the woman ’ s interests and the need to ensure protection of the unborn child. In the present case, the dispute concerns the involuntary killing of an unborn child against the mother ’ s wishes, causing her particular suffering. The interests of the mother and the child clearly coincided. The Court must therefore examine, from the standpoint of the effectiveness of existing remedies, the protection which the applicant was afforded in seeking to establish the liability of the doctor concerned for the loss of her child in utero and to obtain compensation for the abortion she had to undergo. The applicant argued that only a criminal remedy would have been capable of satisfying the requirements of Article 2 of the Convention. The Court does not share that view, for the following reasons.", "88. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36).", "89. Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above, § 49).", "90. Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004- I ), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, “the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged” (see Calvelli and Ciglio, cited above, § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).", "91. In the instant case, in addition to the criminal proceedings which the applicant instituted against the doctor for unintentionally causing her injury – which, admittedly, were terminated because the offence was covered by an amnesty, a fact that did not give rise to any complaint on her part – she had the possibility of bringing an action for damages against the authorities on account of the doctor ’ s alleged negligence (see Kress v. France [GC], no. 39594/98, §§ 14 et seq., ECHR 2001-VI). Had she done so, the applicant would have been entitled to have an adversarial hearing on her allegations of negligence (see Powell, cited above) and to obtain redress for any damage sustained. A claim for compensation in the administrative courts would have had fair prospects of success and the applicant could have obtained damages from the hospital. That is apparent from the findings clearly set out in the expert reports (see paragraph 16 above) in 1992 – before the action had become statute-barred – concerning the poor organisation of the hospital department in question and the serious negligence on the doctor ’ s part, which nonetheless, in the Court of Appeal ’ s opinion (see paragraph 21 above), did not reflect a total disregard for the most fundamental principles and duties of his profession such as to render him personally liable.", "92. The applicant ’ s submission concerning the fact that the action for damages in the administrative courts was statute-barred cannot succeed in the Court ’ s view. In this connection, it refers to its case-law to the effect that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, among other authorities, Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports 1997 ‑ VIII, p. 2955, § 33). These legitimate restrictions include the imposition of statutory limitation periods, which, as the Court has held in personal injury cases, “serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time” (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1502-03, § 51).", "93. In the instant case, a four-year limitation period does not in itself seem unduly short, particularly in view of the seriousness of the damage suffered by the applicant and her immediate desire to prosecute the doctor. However, the evidence indicates that the applicant deliberately turned to the criminal courts, apparently without ever being informed of the possibility of applying to the administrative courts. Admittedly, the French parliament recently extended the time allowed to ten years under the Law of 4 March 2002 (see paragraph 28 above). It did so with a view to standardising limitation periods for actions for damages in all courts, whether administrative or ordinary. This enables the general emergence of a system increasingly favourable to victims of medical negligence to be taken into account, an area in which the administrative courts appear capable of striking an appropriate balance between consideration of the damage to be redressed and the excessive “judicialisation” of the responsibilities of the medical profession. The Court does not consider, however, that these new rules can be said to imply that the previous period of four years was too short.", "94. In conclusion, the Court considers that in the circumstances of the case an action for damages in the administrative courts could be regarded as an effective remedy that was available to the applicant. Such an action, which she failed to use, would have enabled her to prove the medical negligence she alleged and to obtain full redress for the damage resulting from the doctor ’ s negligence, and there was therefore no need to institute criminal proceedings in the instant case.", "95. The Court accordingly concludes that, even assuming that Article 2 was applicable in the instant case (see paragraph 85 above), there has been no violation of Article 2 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal ( Canada ).", "9. The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003.", "10. After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her.", "11. At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter.", "He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father ’ s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant ’ s attempts to bring her to Canada lawfully had failed.", "12. On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter.", "13. On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980.", "On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/ 5 of that Act.", "Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands.", "On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status.", "14. On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant ’ s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her.", "In the interim, the first applicant lodged an application in Canada for a visa for her daughter.", "15. On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada.", "16. On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant ’ s request for asylum under the Dublin Convention, but they refused.", "It also asked K. to furnish the addresses of the members of the family in Kinshasa.", "17. In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs.", "18. On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant ’ s former address in Kinshasa and her parents ’ address there.", "19. On 27 August 2002 the second applicant ’ s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d ’ Etat for an order setting aside the removal directions.", "The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons.", "20. On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant ’ s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses.", "21. In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada.", "22. On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant ’ s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior ’ s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989.", "23. On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms M., an 18- year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know.", "The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal.", "No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M. ’ s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle.", "24. In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees ( UNHCR), the Red Cross and the Belgian embassy in Kinshasa.", "With the embassy ’ s help it was able, on the basis of K. ’ s statements, to identify and subsequently locate a member of the second applicant ’ s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B. ’ s home and explained the situation to him, but B. told him that he did not have the means to look after the child.", "25. On 9 October 2002 the second applicant ’ s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74 / 5, paragraph 1, of the Law of 15 December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant ’ s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children.", "In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child.", "26. On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74 / 4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed.", "27. On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant ’ s application and requested the case file, which the Aliens Office supplied on 14 October 2002.", "28. According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October.", "29. In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant ’ s release:", "“... the enquiries have enabled the person concerned ’ s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant ’ s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family ’ s address. Accordingly, in the child ’ s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa. ”", "On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery :", "“Dear Sir,", "I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N ’ Djili ) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002.", "Yours faithfully,", "... ”", "30. On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant ’ s detention was incompatible with Article 3 § § 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day.", "Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal.", "On the same day the UNHCR ’ s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office ’ s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant ’ s father had disappeared in August 2000 and that her twin sister had been taken to Congo- Brazzaville four months earlier.", "31. On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported.", "There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B. ’ s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute.", "32. The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office ’ s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation.", "On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter ’ s deportation to Kinshasa.", "33. On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B. ’ s home, only to discover that he had disappeared.", "On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her.", "34. The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities.", "The case had attracted considerable attention from the press in the meantime.", "35. On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa.", "36. On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification.", "37. At the request of the Aliens Office, the director of Transit Centre no. 127 described the second applicant ’ s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no. 127 were concerned about the welfare of children, particularly unaccompanied minors." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "38. Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980", "(a) Appeals against decisions on the entry, residence, settlement and expulsion of aliens", "Section 63", "“Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions.", "No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis. ...”", "(b) Measures entailing deprivation of liberty", "Section 71", "“Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 2 5, 27, 29, second paragraph, 51/ 5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63 /5, third paragraph, 67 and 74/ 6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found.", "Aliens held in a designated place at the border pursuant to section 74/ 5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held.", "They may renew the appeal referred to in the preceding paragraphs at monthly intervals.”", "Section 72", "“The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released.", "The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness.", "An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate.", "The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file.", "Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.”", "Section 73", "“If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.”", "Section 74", "“If the Minister decides to prolong the alien ’ s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/ 5 ( 3 ), or section 74 / 6 ( 2 ), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.”", "Section 74/ 4", "“§ 1. Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them.", "§ 2. Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if:", "(a) the carrier that was due to take them to their country of destination refuses to allow them to embark; or", "(b) the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3.", "§ 3. If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers ’ accommodation and stay and any medical expenses they incur.", "...”", "Section 74/ 5", "“§ 1. The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory:", "1 o aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities;", "2 o aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border.", "§ 2. The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1.", "Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom.", "§ 3. Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided:", "1 o the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and", "2 o the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1 o and are prosecuted with all due diligence and the alien ’ s physical removal within a reasonable period remains possible.", "After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister.", "The total length of detention shall under no circumstances exceed five months.", "If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months.", "§ 4. The following may enter the Kingdom:", "1 o aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1 o has been taken;", "2 o aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1 o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof;", "3 o aliens referred to in § 1 who have been held for a total period of five or eight months respectively.", "...”", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "39. Convention on the Rights of the Child of 20 November 1989, ratified by Belgium by a law of 25 November 1991", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision .”", "Article 10", "“1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.", "...”", "Article 22", "“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.", "2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.”", "Article 37", "“States Parties shall ensure that:", "...", "( b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;", "( c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;", "...”", "40. In its “ Concluding observations of the Committee on the Rights of the Child: Belgium ” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium :", "“28. ...", "(a) Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation;", "(b) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres;", "(c) Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor;", "(d) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process;", "(e) Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs;", "(f) Ensure that, if family reunification is carried out, it is done in the best interests of the child;", "(g) Expand and improve follow-up of returned unaccompanied minors.”", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "41. The applicants complained that the second applicant had been detained and deported in violation of Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Detention of the second applicant", "1. The applicants ’ submissions", "42. The applicants submitted that the detention of the second applicant, who was then five years old, for nearly two months in a closed centre for adults constituted inhuman or degrading treatment prohibited by Article 3 of the Convention. They explained that Transit Centre no. 127 was a closed centre near Brussels Airport used to detain illegal immigrants pending their removal from the country. As had been noted in the Committee on the Rights of the Child ’ s second report on Belgium dated 7 July 2002, no facilities for children of the second applicant ’ s age existed in 2002. Accordingly, no arrangements were in place to attend to the second applicant ’ s needs and the only assistance she received was from another Congolese minor. Despite all the assistance given by individual members of staff, the fact remained that there had been a violation of Article 3 of the Convention as, at a crucial stage in her development, the second applicant had been denied freedom of movement, had been unable to play or express her feelings, and had been held in precarious conditions in an adult world where liberty was restricted. The Government had had other, more appropriate, options at their disposal. They could, for instance, have placed the second applicant with the Aid to Young People Department. The applicants noted, lastly, that the second applicant had suffered from sleeping disorders after her release from detention.", "2. The Government ’ s submissions", "43. The Government argued that, in order to determine whether the second applicant ’ s detention for two months in a closed centre – Transit Centre no. 127 – was capable of constituting inhuman or degrading treatment, the facts of the case had to be taken into account.", "In their submission, it had not been possible for the child to be given permission to enter Belgian territory without any identity papers or a visa. Nor could she have been allowed to leave with her uncle, as he had not provided any evidence to show that he was her guardian or established that he was a relative. At that juncture the Canadian authorities had not offered to issue a laissez-passer, and indeed none had been requested by the applicants. Had the first applicant travelled to Belgium, her daughter ’ s detention and subsequent removal would, no doubt, have been avoided.", "44. The chances of finding accommodation in a more suitable centre were virtually non-existent and, above all, would not have guaranteed the child ’ s supervision or, therefore, her protection. There had accordingly been a risk that she would disappear. Furthermore, although the place of detention was not adapted to the needs of a five-year-old child, particularly for what turned out to be quite a lengthy period, the explanation for this lay in the exceptional circumstances of the case and in the fact that, since situations of this type were relatively rare at the time, adequate procedures and structures had yet to be established.", "Legislation had since been introduced in the form of the financial planning Act ( loi-programme ) of 24 December 2002, which provided for the appointment of a guardian and for the minor to be taken into care. In addition, on 19 May 2006, the Cabinet had approved in principle a measure intended to prohibit the detention in a closed centre of unaccompanied foreign minors arrested at the border.", "45. The first applicant had been informed of her daughter ’ s situation straightaway and had been allowed to speak with her on the telephone for as long as she wished. The staff at the centre had gone to considerable lengths to look after the second applicant, as Mr Ma. had noted in his letter of 23 August 2002. Moreover, in his report of 23 November 2004, the director of Transit Centre no. 127 had noted that the medical and administrative staff at the centre had been attentive to her needs, that she had had daily telephone contact with her mother and uncle and had been integrated into the family life of children of her own age by the children ’ s mothers. In the light of all this, it was not so much the second applicant ’ s detention in the instant case that was in issue but the very principle of the detention of minors and the fact that the Belgian authorities had rejected the proposed alternative accommodation.", "46. As to the length of the detention, the explanation for this lay in the lengths to which the authorities had gone to clarify the second applicant ’ s situation, a particular example of this being the care with which the Commissioner-General for Refugees and Stateless Persons had examined her expedited appeal. Various requests for information had been made by the Aliens Office to various persons and bodies, including international organisations and private individuals in Canada and the Democratic Republic of Congo, in order to find the most appropriate solution. Another contributory factor had been the unceasing efforts the Belgian authorities had made to find a suitable home for the second applicant in her country of origin following the dismissal of her application for asylum.", "47. The Government further alleged that areas of uncertainty remained in the case. For example, why was it that no application for a visa was made at the time to enable the second applicant to continue her journey to Canada and what had become of the second applicant ’ s father.", "There were also question marks over the first applicant ’ s conduct : she had not mentioned the existence of her two children in her application for asylum in Canada or sought a visa to enable her to travel to Belgium as a matter of urgency, firstly to be with her daughter and then to take her back to Canada. The Government considered that both the first applicant and the family had failed to cooperate with the competent authorities and had brought the situation of which they now complained upon themselves by treating certain matters as a “ fait accompli ”. They argued that the first applicant could not therefore hold the Belgian State accountable for the two months during which it had looked after the second applicant as well as it was able.", "3. The Court ’ s assessment", "48. Article 3 makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe ( see Soering v. the United Kingdom, 7 July 1989, § 8 8, Series A no. 161).", "In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions, 1997 ‑ VIII ).", "In order to carry out this assessment, regard must be had to “ the fact that the Convention is a ‘ living instrument which must be interpreted in the light of present-day conditions ’ [and] that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies ” ( see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V).", "49. The Court will first examine the Article 3 complaint of the second applicant – she being the person who was detained – before proceeding to consider the complaint of her mother (the first applicant), who also claims that she was a victim of the measure.", "( a) The second applicant", "50. The Court notes that the second applicant, who was only five years old, was held in the same conditions as adults. She was detained in a centre that had initially been designed for adults, even though she was unaccompanied by her parents and no one had been assigned to look after her. No measures were taken to ensure that she received proper counselling and educational assistance from qualified personnel specially mandated for that purpose. That situation lasted for two months. It is further noted that the respondent State have acknowledged that the place of detention was not adapted to her needs and that there were no adequate structures in place at the time.", "51. A five-year-old child is quite clearly dependent on adults and has no ability to look after itself so that, when separated from its parents and left to its own devices, it will be totally disoriented.", "52. The fact that the second applicant received legal assistance, had daily telephone contact with her mother or uncle and that staff and residents at the centre did their best for her cannot be regarded as sufficient to meet all her needs as a five-year-old child. The Court further considers that the uncoordinated attention she received was far from adequate.", "53. It reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals ( see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII).", "54. In this connection, the Court must examine whether or not the impugned regulations and practices, and in particular the manner in which they were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 3 of the Convention.", "55. The second applicant ’ s position was characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by Article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicant ’ s status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3 of the Convention.", "56. The Court observes that, whereas under the general law minors came within the jurisdiction of the youth courts, there was a legal void at the time in respect of unaccompanied foreign minors. The respondent State accepted that the prospects of finding accommodation in a more suitable centre were virtually non-existent and that such centres as did exist did not have facilities for the child ’ s supervision or, therefore, protection. Furthermore, there was no statutory basis on which the courts could review the conditions under which minors were held or require the authorities to provide legal, humanitarian and social assistance where necessary ( see, mutatis mutandis, Amuur v. France, 25 June 1996, § 53, Reports 1996-III). The only available remedy was an application to the chambre du conseil under section 71 of the aforementioned Act. In such cases, the question before the chambre du conseil was whether the detention was lawful, not whether it was appropriate.", "57. Following an application by the second applicant ’ s lawyer on 9 October 2002, the chambre du conseil ruled on 16 October 2002 that the second applicant ’ s detention was unlawful under the Convention on the Rights of the Child and ordered her immediate release. It expressly found that it had no jurisdiction to examine the appropriateness of detention or the conditions in which she was held, or to modify the regime and order alternative arrangements.", "Moreover, prior to applying to the chambre du conseil, the second applicant ’ s lawyer had referred the matter to the Aliens Office on 26 September 2002 and, referring to her isolation and the risks of psychological damage, requested her placement with foster parents or, failing that, in a specialised institution. The inescapable conclusion must therefore be that the domestic authorities failed to take action to avoid or remedy the alleged shortcomings, despite being expressly informed of the position.", "Furthermore, in his decision of 25 September 2002, the Commissioner-General for Refugees and Stateless Persons had drawn the Minister of the Interior ’ s attention to the fact that the second applicant was a minor and entitled to be reunited with her family by virtue of Article 10 of the Convention on the Rights of the Child. On 13 June 2002 the Committee on the Rights of the Child had recommended that the Belgian State should expedite efforts to establish special reception centres and that stays in such centres should be for the shortest time possible.", "58. The Court considers that the measures taken by the Belgian authorities – informing the first applicant of the position, giving her a telephone number where she could reach her daughter, appointing a lawyer to assist the second applicant and liaising with the Canadian authorities and the Belgian embassy in Kinshasa – were far from sufficient to fulfil the Belgian State ’ s obligation to provide care for the second applicant. The State had, moreover, had an array of means at its disposal. The Court is in no doubt that the second applicant ’ s detention in the conditions described above caused her considerable distress. Nor could the authorities who ordered her detention have failed to be aware of the serious psychological effects it would have on her. In the Court ’ s view, the second applicant ’ s detention in such conditions demonstrated a lack of humanity to such a degree that it amounted to inhuman treatment.", "59. There has therefore been a violation of Article 3 of the Convention.", "( b) The first applicant", "60. The Court reiterates, firstly, that Article 3 affords absolute protection, irrespective of any reprehensible conduct on the part of the applicant ( see, mutatis mutandis, Soering, cited above, § 88). Accordingly, it cannot accept the Belgian Government ’ s argument that the conduct of the first applicant was such as to prevent the Court from finding a violation.", "61. The Court reiterates, secondly, that the issue whether a parent qualifies as a “ victim ” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant ’ s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent ’ s enquiries. The essence of such a violation lies in the authorities ’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities ’ conduct ( see, mutatis mutandis, Çakıcı v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV, and Hamiyet Kaplan and Others v. Turkey, no. 36749/97, § 67, 13 September 2005 ).", "62. As regards the Belgian authorities ’ conduct towards the first applicant, it is apparent from the material before the Court that the only action the Belgian authorities took was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court has no doubt that, as a mother, the first applicant suffered deep distress and anxiety as a result of her daughter ’ s detention. In view of the circumstances of the case, the Court concludes that the level of severity required for a violation of Article 3 of the Convention was attained in the present case.", "63. There has therefore been a violation of Article 3 of the Convention.", "B. The second applicant ’ s deportation", "1. The applicants ’ submissions", "64. The applicants also alleged that the Belgian authorities had engaged in treatment proscribed by Article 3 of the Convention in that they had deported the second applicant without awaiting the Canadian authorities ’ decision on their application for family reunification and had failed to ensure that she would be met by a member of the family or, at least, a Belgian official. They said that the second applicant, who was only five years old at the time, had travelled without anyone being assigned to accompany her and had been forced to wait at Kinshasa Airport from 5 p.m. until approximately 11 p.m., when Ms T. arrived to collect her. In their submission, deporting the child of a person with recognised refugee status was contrary to the fundamental rule that asylum - seekers should not be expelled. There was, furthermore, a danger in such cases that the authorities in the country of origin would use the child ’ s presence there to compel the refugee to return or even that they would seek to exact revenge on the child. The applicants added that the Government had been aware that neither B., who was a student, nor any other member of the family was in a position to look after the second applicant. In their submission, their case had to be distinguished from the case of Nsona v. the Netherlands (28 November 1996, Reports 1996 ‑ V), in which a nine-year-old girl had been deported in an aircraft belonging to one of her father ’ s acquaintances and had been accompanied by a ( sufficiently ) close relative. The present case was different in that the second applicant had travelled alone. It was not enough to say that an air hostess had been assigned to look after her by the airline. Furthermore, the complications in Nsona had come about following the intervention of counsel for the applicant in that case, which was not the position in the present case. The fact that the Belgian authorities had been aware of the first applicant ’ s refugee status in Canada and that the second applicant had ultimately returned to Europe after five days indicated that the decision to deport her was disproportionate. Lastly, as the applicants had already stated with regard to the second applicant ’ s detention, the Government had had other means at their disposal.", "2. The Government ’ s submissions", "65. The Government submitted that in the absence of papers authorising the second applicant to travel and to enter the country, the Belgian authorities had had no reason not to deport her. In addition, the first applicant had at no stage established that she was the child ’ s mother and the Belgian authorities had managed to establish contact with other members of her family. In those circumstances, they had acted properly in sending the child back to her family. The Government said that removal had been necessary and that there had been a legal basis for it, so that the arguments had to be confined to the conditions in which the deportation had taken place.", "They observed that the applicants had not alleged that the second applicant was at risk of treatment proscribed by Article 3 if she returned to Kinshasa; the applicants ’ argument was that, on account of her age, deportation itself constituted proscribed treatment. In the Government ’ s submission, the arrangements made for the second applicant ’ s removal were comparable to those in Nsona and, indeed, in certain respects were more favourable than in that case. Although the trauma suffered by the child and the lack of anyone to meet her at Kinshasa Airport were regrettable, there had been no problems with the conditions in which the second applicant had travelled as she had been accompanied all the way to the airport by a social worker and there placed in the care of an air hostess who had been assigned to accompany her by the airline, as its report dated 25 October 2002 indicated. The Belgian authorities had, moreover, received assurances that members of the second applicant ’ s family would collect her at the airport. Nor were the authorities responsible for the fact that her uncle, B., had reneged on his promise at the last minute; in any event, his failure to turn up had been of no consequence because the child was met by a representative of the Congolese authorities, who had accommodated her for the night. The Government considered that primary responsibility for the additional inconvenience that was caused to the child lay with B. Nevertheless, they acknowledged that the deportation was not executed with proper vigilance. In particular, they admitted that they should have anticipated the possibility that B. might not turn up and regretted not having done so. The Government nonetheless considered that the child ’ s family had no grounds for complaint in that respect, as it was the family, and in particular the first applicant, who were responsible for the situation.", "3. The Court ’ s assessment", "66. The Court will begin by examining the complaint concerning the second applicant ’ s rights and would state at the outset that it is struck by the failure to provide adequate preparation, supervision and safeguards for her deportation.", "For example, the Belgian authorities stood by their decision to proceed with the second applicant ’ s deportation on 17 October 2002 despite two new factual developments, these being the chambre du conseil ’ s decision of the previous day to order her immediate release on the grounds that her detention was unlawful and the fact that the UNHCR had informed the authorities that the first applicant had acquired refugee status in Canada.", "67. As regards the conditions in which the second applicant travelled, the Court notes that, although an assistant from the centre accompanied her as far as customs, the second applicant had to travel alone as the Belgian authorities had not assigned an adult to accompany her.", "As to the arrangements in her country of origin, the Belgian authorities merely informed her uncle B., who was the only relative they had managed to trace in Kinshasa, of her arrival, but did not expressly require his presence or make sure that he would be at the airport. The Court cannot, therefore, accept the Government ’ s submission that they were not responsible for the situation or for the fact that B. did not turn up. The Belgian authorities had not considered or made alternative arrangements for the second applicant ’ s arrival and it was only after several hours ’ wait at the airport that a solution – and a wholly improvised one at that – was found by the Congolese authorities.", "68. In the Court ’ s view, this shows that the Belgian authorities did not seek to ensure that the second applicant would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin. This view is not altered by the fact that the airline decided to assign an air hostess – an ordinary member of the flight crew – to look after her for the duration of the flight or that the second applicant was ultimately taken into the home of a representative of the Congolese authorities after an almost six-hour wait at the airport.", "69. The Court considers that the second applicant ’ s deportation in such conditions was bound to cause her extreme anxiety and demonstrated such a total lack of humanity towards someone of her age and in her situation as an unaccompanied minor as to amount to inhuman treatment. The Court also finds that, by deporting the second applicant, the Belgian State violated its positive obligations to take requisite measures and precautions.", "70. As regards the first applicant and in the light of the case-law it has cited in relation to the previous complaint (see paragraph 61 above), the Court notes in particular that the Belgian authorities did not trouble themselves to advise her of her daughter ’ s deportation so that she only became aware of it when she tried to reach her at the closed centre on the telephone after the deportation had already taken place. The Court has no doubt that this caused the first applicant deep anxiety. The disregard such conduct showed for her feelings and the evidence in the case file lead the Court to find that the requisite threshold of severity has been attained in the present case.", "71. It follows from the foregoing that there has been a violation of both applicants ’ rights under Article 3 of the Convention on account of the second applicant ’ s deportation.", "II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION", "72. The applicants complained that the second applicant ’ s detention and deportation also violated Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The second applicant ’ s detention", "1. The applicants ’ submissions", "73. The applicants submitted that the second applicant ’ s detention also violated Article 8 of the Convention as it constituted disproportionate interference with their right to respect for their private and family life. The Belgian State was or should have been aware of the first applicant ’ s refugee status in Canada because of the letters it had received from Mr Ma. and the UNHCR ’ s intervention. The applicants argued that family reunification was a fundamental right of refugees and cited, among other authorities, Recommendation 1327 (1997) of the Parliamentary Assembly of the Council of Europe on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe. In their submission, the obligations incumbent on States that were parties to the Convention on the Rights of the Child signed in New York on 20 November 1989 (and in particular, Articles 3 and 10 thereof) could be used as a guide when assessing whether the interference with the child ’ s family life had been necessary. The reasons given by the Government in no way justified the interference, which had consisted of the second applicant ’ s detention notwithstanding a proposal by her lawyer for her to be placed with foster parents. Her illegal entry was not a reason for denying her fundamental rights; nor did her inability to travel to the Netherlands prevent her placement with foster parents. Furthermore, although family reunification in Canada would have taken some time, there had been no need to keep the child in a closed centre. Nor could the fact that members of her family had been located in Kinshasa serve to justify her detention since she was the daughter of a person with recognised refugee status and her return to her country of origin placed her safety and even her life at risk. The fact that the first applicant had been granted refugee status in Canada should, furthermore, have alerted the Belgian authorities to the need to act with great caution. Lastly, while the applicants accepted that the first applicant had been wrong to ask her brother to bring her daughter to Europe, they said that she had done so in the belief that it was in her daughter ’ s best interests.", "2. The Government ’ s submissions", "74. The Government pointed out that, while Article 8 did in principle apply to cases concerning aliens, an alien ’ s family life had to be reconciled with the State ’ s prerogatives in immigration cases. The Court had consistently affirmed in its case-law the principle that the State Parties to the Convention were entitled to control the entry of non-nationals into their territory and that that prerogative, which could result in interference with the alien ’ s family life, had to be exercised in conformity with the second paragraph of Article 8. In the Government ’ s submission, keeping an alien in detention after he or she had attempted to enter the national territory without complying with the relevant conditions and had asked to be given refugee status while the application for asylum was considered could not in itself be considered to constitute a violation of his or her family life. Detention enabled the State to issue a deportation order that would be enforceable in practice in the event of the request for asylum being turned down. The Government accepted that it was legitimate to enquire whether these principles ought to be moderated when the immigrant concerned was a young child. However, they nevertheless considered that in the instant case there had been no infringement of the second applicant ’ s family life for several reasons:", "(i) on her arrival at the airport, her uncle had fraudulently tried to pass her off as his daughter;", "(ii) no members of the family lived in Belgium;", "(iii) according to the information that had been provided to the authorities, it would not have been legally possible for the second applicant to continue her journey to the Netherlands with her uncle;", "(iv) the first applicant had not made any application for family reunification at the material time;", "(v) certain members of the family whom it had been possible to locate in Kinshasa had been contacted personally and duly informed of the second applicant ’ s arrival in her country of origin – moreover, there was no doubt that she would be permitted to enter the country;", "(vi) the Belgian authorities were not informed that the first applicant had been granted refugee status until 18 October 2002, that is to say, until after the deportation order had been executed.", "The Government further questioned why between July 2001 and August 2002 the first applicant had not made an application to the Canadian authorities and / or to the Canadian embassy in Kinshasa with a view to arranging for her daughter ’ s lawful immigration, preferring instead to use an illegal route with her brother ’ s assistance. They said in conclusion that the second applicant ’ s detention in a closed centre during the period necessary for the examination of her request for asylum and her appeal under the expedited procedure and from then till 17 October 2002 did not amount to interference that was contrary to the Convention.", "3. The Court ’ s assessment", "75. The Court considers that, by its very essence, the tie between the second applicant, a minor child, and her mother – the first applicant – comes within the definition of family life within the meaning of Article 8 of the Convention ( see, among other authorities, Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290, and Hokkanen v. Finland, 23 September 1994, § 54, Series A no. 299-A), especially considering that in the instant case the first applicant had been granted refugee status, so that the interruption of family life was solely a result of her decision to flee her country of origin out of a genuine fear of persecution within the meaning of the Geneva Convention Relating to the Status of Refugees of 28 July 1951. The Government did not dispute the fact that the relationship between the applicants constituted family life and, in this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life ( see, mutatis mutandis, Olsson v. Sweden ( no. 1), 24 March 1988, § 59, Series A no. 130; Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156; and Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX).", "76. In the Court ’ s view, the second applicant ’ s detention amounted to interference with both applicants ’ rights under Article 8 of the Convention. Indeed, this was not disputed by the Government.", "77. The Court reiterates that an infringement of an individual ’ s right to respect for his or her private and family life will violate Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society”, in other words, proportionate to the pursued objectives. The question before the Court is whether the interference was justified under paragraph 2 of Article 8 of the Convention.", "78. The Court observes that the detention was based on section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 and was therefore in accordance with the law.", "79. The second defendant was detained under the authorities ’ powers to control the entry and residence of aliens on the territory of the Belgian State. The decision to detain could have been in the interests of national security or the economic well-being of the country or, just as equally, for the prevention of disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of the second paragraph of Article 8 of the Convention.", "80. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court will examine, in the light of the case as a whole, whether the detention was necessary in a democratic society, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued ( see Amrollahi v. Denmark, no. 56811/00, § 33, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 ‑ IX; Adam v. Germany (dec.), no. 43359/98, 4 October 2001; and Mokrani v. France, no. 52206/00, § 26, 15 July 2003). The Court ’ s task here is to determine whether the second applicant ’ s detention struck a fair balance between the competing interests in the case.", "81. The Convention does not guarantee, as such, any right for an alien to enter or stay on the territory of the State of which he or she is not a national ( see Moustaquim v. Belgium, 18 February 1991, § 43, Series A no. 193, and Beldjoudi v. France, 26 March 1992, § 74, Series A no. 234-A). Furthermore, the Contracting States are under a duty to maintain public order, in particular by exercising their right, as a matter of well-established international law, to control the entry and residence of aliens. In this connection, detention in centres used for aliens awaiting deportation will be acceptable only where it is intended to enable the States to combat illegal immigration while at the same time complying with their international obligations, including those arising under the European Convention on Human Rights and the Convention on the Rights of the Child ( ratified by Belgium in 1991).", "Furthermore, the States ’ interest in foiling attempts to circumvent immigration rules must not deprive aliens of the protection afforded by these conventions or deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State ’ s immigration policy must therefore be reconciled.", "82. The Court observes that the effect of the second applicant ’ s detention was to separate her from the member of her family in whose care she had been placed and who was responsible for her welfare, with the result that she became an unaccompanied foreign minor, a category in respect of which there was a legal void at the time. Her detention significantly delayed the applicants ’ reunification. The Court further notes that, far from assisting her reunification with her mother, the authorities ’ actions in fact hindered it. Having been informed at the outset that the first applicant was in Canada, the Belgian authorities should have made detailed enquiries of their Canadian counterparts in order to clarify the position and bring about the reunification of mother and daughter. The Court considers that that duty became more pressing from 16 October 2002 onwards, that being the date when the Belgian authorities received the fax from the UNHCR contradicting the information they had previously held.", "83. The Court considers that the complaint can also be analysed from the perspective of the second applicant ’ s private life. It has often said that the expression “private life” is broad and does not lend itself to exhaustive definition. Thus, private life, in the Court ’ s view, includes a person ’ s physical and mental integrity. The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ( see, mutatis mutandis, Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B; Botta v. Italy, 24 February 1998, § 32, Reports 1998-I; and Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 -VI ).", "In this connection, in the absence of any risk of the second applicant ’ s seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults was unnecessary. Other measures could have been taken that would have been more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child. These included her placement in a specialised centre or with foster parents. Indeed, these alternatives had in fact been proposed by the second applicant ’ s counsel.", "84. The Court considers that, in view of her young age, the second applicant cannot bear any responsibility for her uncle ’ s attempts to deceive the Belgian authorities by passing her off as his daughter. The same applies to the conduct of her mother and family. Further, although the first applicant ’ s conduct was questionable and does not appear to have been entirely fault-free, it was not such as to deprive her of victim status in the instant case.", "85. Ultimately, since the second applicant was an unaccompanied foreign minor, the Belgian State was under an obligation to facilitate the family ’ s reunification ( see, mutatis mutandis, Johansen v. Norway, 7 August 1996, § 78, Reports 1996 ‑ III; Eriksson, cited above, § 71; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000 ‑ VIII ).", "86. In the light of all the foregoing considerations, the Court finds that there has been disproportionate interference with the applicants ’ right to respect for their family life.", "87. There has therefore been a violation of Article 8 of the Convention.", "B. The second applicant ’ s deportation", "1. The applicants ’ submissions", "88. The applicants relied on the arguments they had used with respect to the complaint under Article 3 of the Convention.", "2. The Government ’ s submissions", "89. The Government argued that it had to be remembered that the first applicant had sought to deceive the Belgian authorities with her brother ’ s help. Her brother had clearly stated to the Belgian authorities that it was not his intention to look after his niece, as he did not wish to have problems with the Dutch authorities. The first applicant could have used her refugee papers or her Congolese passport, which had been issued on 27 September 2002, to travel. Moreover, her request to the Canadian authorities for asylum did not extend to the second applicant and between July 2001 and August 2002 she had not taken any action with a view to family reunification. The enquiries that had been made had revealed that she had members of her family living in Kinshasa. Lastly, the second applicant ’ s return to her country of origin had been organised in such a way that a Congolese official representative had been there to accommodate her when her family failed to meet her in Kinshasa.", "3. The Court ’ s assessment", "90. The Court does not consider it necessary to recapitulate the circumstances in which the deportation took place, as these have already been described above (see paragraphs 66 et seq.). It reiterates that the Belgian State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants ’ reunification (see paragraph 85 above). By deporting the second applicant, the authorities did not assist their reunification (see paragraph 82 above). Nor did they ensure that the second applicant would in fact be looked after in Kinshasa ( see paragraph 67 above). In these circumstances, the Court considers that the Belgian State failed to comply with its positive obligations and interfered with the applicants ’ right to respect for their family life to a disproportionate degree.", "91. There has therefore been a violation of both applicants ’ rights under Article 8 of the Convention as a result of the second applicant ’ s deportation.", "III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AS A RESULT OF THE SECOND APPLICANT ’ S DETENTION", "92. The applicants also argued that the second applicant ’ s detention violated Article 5 § 1 ( d) of the Convention, which provides :", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ”", "A. The applicants ’ submissions", "93. In the applicants ’ submission, the second applicant ’ s detention did not serve the purpose set out in paragraph ( d) of Article 5, which was the only provision that permitted the detention of a minor. The sole aim of the detention in the present case had been to prevent the second applicant from entering Belgium and to facilitate her subsequent deportation to her country of origin. The applicants argued in the alternative that were the Court to consider that the word “person” referred to in Article 5 § 1 ( f) of the Convention included minors, the child ’ s age and minority would nevertheless remain an important factor in assessing the lawfulness of the detention. In other words, when a minor was detained, a stricter review would be required, in accordance with the Convention on the Rights of the Child. In such cases, the Government would have to be able to prove that the detention was in the child ’ s interest. In the second applicant ’ s case, there had been no need for the detention. Alternatives had been available such as permitting her to enter the country and stay with foster parents under the supervision of the Aid to Younger People in the French Community Department. Furthermore, the second applicant ’ s deportation could not be regarded as release from detention and so was in breach of the chambre du conseil ’ s order of 16 October 2002. The applicants added that Crown Counsel had, in fact, had only one aim when he decided to defer his appeal against the order for the second applicant ’ s release and that was to facilitate her removal by the Government. They said that proof of this was to be found in the letter from the Aliens Office dated 15 October 2002. It followed that the second applicant ’ s detention subsequent to the order of 16 October 2002 was unlawful, its sole purpose being to allow her deportation before the order for her release became final.", "B. The Government ’ s submissions", "94. The basis for the detention of a foreign minor in Belgian law was to be found in section 74 / 5 of the Law of 15 December 1980, which made no distinction between aliens who had reached their majority and those who were still minors. There could be no one single answer to the question whether the detention of a foreign minor was lawful : the minor ’ s age and the particular difficulties with which the Belgian authorities were confronted were essential criteria for deciding on the best solution for the child. In any event, it would be hazardous to work on the premise that if a child was very young, it could “as it were serve as a safe conduct for third parties”, which was the situation that was in danger of arising if a rule was established prohibiting the detention of minors. The detention of a minor was, furthermore, consistent with the provisions of Article 5 § 1 ( f) of the Convention. As regards more specifically the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, while it was true that that court had ruled that the second applicant ’ s continued detention in Transit Centre no. 127 was unlawful and had ordered her release, Crown Counsel had a right under section 72 of the Law of 15 December 1980 to appeal within twenty-four hours of the date of the decision. It was only on the expiration of that period that the order became final (in accordance with section 73 of the Act) and the alien had to be released. In the present case, the order of 16 October 2002 had not become final until midnight on 17 October 2002 and it was only at that point, once the time - limit for appealing had expired, that the second applicant had to be released. The Government said that it followed from this that the second applicant ’ s continued detention until 17 October 2002 – when she was taken to the airport to be put on the plane to Kinshasa – complied with the provisions of domestic law. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention had ended when the deportation order was executed.", "C. The Court ’ s assessment", "95. The Court notes at the outset that the first applicant has not been detained and accordingly cannot claim personally to have been a victim of a violation of Article 5 of the Convention.", "96. In so far as this complaint concerns the second applicant, the Court reiterates that the Contracting States are entitled to control the entry and residence of non-nationals on their territory at their discretion, but stresses that this right must be exercised in conformity with the provisions of the Convention, including Article 5. In proclaiming the right to liberty, paragraph 1 of Article 5 contemplates the physical liberty of the person and its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion ( see, mutatis mutandis, Amuur, cited above, § 42). The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision ( see, mutatis mutandis, K. ‑ F. v. Germany, 27 November 1997, § 70, Reports 1997 ‑ VII; Čonka v. Belgium, no. 51564/99, § 42, ECHR 2002-I; and D.G. v. Ireland, no. 39474/98, § 74, ECHR 2002-III). Detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5 which is to protect an individual from arbitrariness ( see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114).", "97. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, the Court must assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that a national law authorising deprivation of liberty must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness.", "98. As regards the compatibility of the detention with domestic law in the instant case, the Court considers that two periods can be distinguished, these being the period prior to the order of 16 October 2002 in which the chambre du conseil declared the second applicant ’ s detention unlawful and the period after that date. It observes that the Government have not sought to argue that the chambre du conseil ’ s ruling that the detention was illegal affected the second applicant ’ s victim status. In any event, it notes that the ruling did not bring the detention to an end. In the Court ’ s view, the finding by the domestic court that the first period of detention was unlawful raises serious doubts as to the lawfulness of the second period.", "99. The second applicant was placed in detention pursuant to section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, initially pending a decision on her application for asylum and subsequently pending her deportation. At that time, the Act did not contain any provisions specific to minors. Thus, the fact that the alien concerned was a minor was of no relevance to the application of the provisions governing his or her detention.", "100. The Court does not agree with the second applicant ’ s submission that paragraph ( d) of Article 5 § 1 of the Convention is the only provision which permits the detention of a minor. It in fact contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or for the purpose of bringing them before the competent legal authority to decide.", "101. In the instant case, the ground for the second applicant ’ s detention was that she had entered the country illegally as she did not have the necessary documents. Her detention therefore came within paragraph ( f) of Article 5 § 1 of the Convention which permits “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”.", "102. However, the fact that the second applicant ’ s detention came within paragraph ( f) of Article 5 § 1 does not necessarily mean that it was lawful within the meaning of this provision, as the Court ’ s case - law requires that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention ( see, mutatis mutandis, Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references ).", "103. The Court notes that the second applicant was detained in a closed centre intended for illegal immigrants in the same conditions as adults; these conditions were consequently not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor.", "104. In these circumstances, the Court considers that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the second applicant ’ s right to liberty.", "105. There has therefore been a violation of the second applicant ’ s rights under Article 5 § 1 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLES 5 § 4 AND 13 OF THE CONVENTION", "106. Relying on Articles 5 § 4 and 13 of the Convention, the applicants maintained that the Belgian State had rendered the second applicant ’ s appeal futile and ineffective by proceeding to deport her the day after her release was ordered, in defiance of that order. Article 5 § 4 provides :", "Article 5 § 4", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "Article 13 reads as follows :", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The applicants ’ submissions", "107. The applicants alleged that prolonging the second applicant ’ s detention and then proceeding to deport her following an order by the chambre du conseil for her immediate release was contrary to the Convention and rendered the remedy ineffective. In their submission, even assuming that detention could be prolonged in order to enable Crown Counsel to appeal against the order within twenty-four hours, detention could only be used for that purpose and not as a means to deport the alien within that period. Furthermore, once the alien had been deported, the powers of review of the chambre du conseil and the indictments division became redundant, even though deportation did not amount to release. They concluded from the above that they had not had an effective remedy in respect of the second applicant ’ s detention.", "B. The Government ’ s submissions", "108. The Government maintained that the right of appeal to the chambre du conseil was an effective remedy within the meaning of the Convention. The chambre du conseil ’ s review concerned both the detention and the deportation order on which it was based. Referring specifically to the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, the Government argued that their observations on the issue of the lawfulness of the second applicant ’ s detention showed that its extension until 17 October 2002 was lawful. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention ended when the deportation order was executed.", "C. The Court ’ s assessment", "109. The Court has already found that since the first applicant was not detained she could not personally claim to have been a victim of a violation of Article 5 of the Convention (see paragraph 95 above).", "110. In so far as this complaint is also made by the second applicant, the Court refers firstly to its case-law holding that a complaint under Article 13 will be absorbed by a complaint under Article 5 § 4 since the requirements of Article 13 are less strict than those of Article 5 § 4, which must be regarded as the lex specialis for Article 5 grievances ( see Chahal v. the United Kingdom, 15 November 1996, § 126, Reports 1996-V ).", "111. The Court will therefore examine the complaint solely under Article 5 § 4 of the Convention.", "112. The purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected ( see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release ( see, mutatis mutandis, Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003 ‑ X ).", "113. The Court notes that the Belgian authorities made arrangements for the second applicant ’ s deportation on the day after she lodged an application to the chambre du conseil for release, that is to say, even before it had delivered its decision. Furthermore, the authorities did not at any stage reconsider the decision to deport her. The Court also notes that the second applicant was deported on the scheduled date, notwithstanding the fact that the twenty-four-hour period for an appeal by Crown Counsel, during which a stay applied, had not expired. Crown Counsel deliberately chose to reserve his decision after receiving a letter from the Belgian authorities informing him of their view that the second applicant should remain in detention so that she could be deported to Kinshasa. Lastly, the Government have acknowledged that the Belgian authorities ’ conduct was not dictated by the chambre du conseil ’ s decision to grant the application for release as her deportation had been arranged in advance.", "Even assuming that the second applicant ’ s deportation can be equated to “release” for the purposes of Article 5 § 4 of the Convention, it follows from the foregoing considerations that there was no link between her deportation and the exercise of the remedy or the fact that it was granted.", "In these circumstances, the Court finds that the second applicant ’ s appeal to the chambre du conseil appears, in the circumstances of the case, to have been ineffective.", "114. There has therefore been a violation of Article 5 § 4 of the Convention. The Court does not consider that any separate examination of the complaint under Article 13 of the Convention is necessary.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "115. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "116. The applicants said that they had sustained non-pecuniary damage which they put at 10, 000 euros (EUR) for the first applicant and EUR 25, 000 for the second.", "117. The Government observed that the first applicant had only requested family reunification after her daughter ’ s deportation and arrival in Canada (on 29 October 2002) and said that the first applicant ’ s role in the case had not been clearly established. Either she had been unaware that her daughter had left Kinshasa, in which case it had been on her brother ’ s initiative and it was to him and not the Government that she should address her grievances, or she herself had been the instigator, in which case she ought not to be awarded anything because she had knowingly broken the law. In the light of these considerations, the Government submitted that the finding of a violation would afford adequate compensation for the non-pecuniary damage sustained by the first applicant. They left the issue of the non-pecuniary damage sustained by the second applicant to the Court ’ s discretion whilst pointing out that they had sought to defend her interests as best they could in what, to say the least, had been a complex situation.", "118. In the light of the various violations it has found, including the violation of both the first and second applicant ’ s rights under Article 3, which, as has been noted, confers absolute protection ( see Soering, cited above, § 88), the Court considers the sums claimed by each of the applicants reasonable and awards them the amounts by way of just satisfaction.", "B. Costs and expenses", "119. The applicants, who have produced detailed fee notes, claimed EUR 14, 177. 04 for costs and expenses. This amount was broken down into EUR 10, 500 for the fees and expenses of Mr Vanheule, EUR 3, 042 for the fees and expenses of Mr Ma., EUR 141 for the fees of a Canadian lawyer, Mr A., in connection with family reunification in Canada in 2002, EUR 35 for the costs of a visa to enable the first applicant to attend the hearing before the Court and EUR 459. 04 in travel expenses.", "120. The Government referred to the principles established by the Court and submitted that it should disallow the fees and expenses of Mr A., and at least part of the fees and expenses of Mr Ma. It left the remainder of the claim to the Court ’ s discretion.", "121. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy ( just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).", "The Court notes that the Government have not contested Mr Vanheule ’ s fees or the first applicant ’ s claim in respect of the cost of her visa and travel expenses. It considers that the action taken by Mr Ma. was intended to prevent the violation it has found to have occurred and that the amount claimed in respect thereof is reasonable. Consequently, it awards the applicants the sum of EUR 14, 036 for costs and expenses, less the amount which the Council of Europe has granted in legal aid.", "C. Default interest", "122. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal ( Canada ).", "9. The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003.", "10. After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her.", "11. At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter.", "He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father ’ s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant ’ s attempts to bring her to Canada lawfully had failed.", "12. On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter.", "13. On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980.", "On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/ 5 of that Act.", "Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands.", "On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status.", "14. On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant ’ s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her.", "In the interim, the first applicant lodged an application in Canada for a visa for her daughter.", "15. On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada.", "16. On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant ’ s request for asylum under the Dublin Convention, but they refused.", "It also asked K. to furnish the addresses of the members of the family in Kinshasa.", "17. In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs.", "18. On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant ’ s former address in Kinshasa and her parents ’ address there.", "19. On 27 August 2002 the second applicant ’ s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d ’ Etat for an order setting aside the removal directions.", "The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons.", "20. On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant ’ s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses.", "21. In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada.", "22. On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant ’ s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior ’ s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989.", "23. On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms M., an 18- year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know.", "The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal.", "No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M. ’ s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle.", "24. In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees ( UNHCR), the Red Cross and the Belgian embassy in Kinshasa.", "With the embassy ’ s help it was able, on the basis of K. ’ s statements, to identify and subsequently locate a member of the second applicant ’ s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B. ’ s home and explained the situation to him, but B. told him that he did not have the means to look after the child.", "25. On 9 October 2002 the second applicant ’ s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74 / 5, paragraph 1, of the Law of 15 December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant ’ s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children.", "In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child.", "26. On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74 / 4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed.", "27. On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant ’ s application and requested the case file, which the Aliens Office supplied on 14 October 2002.", "28. According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October.", "29. In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant ’ s release:", "“... the enquiries have enabled the person concerned ’ s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant ’ s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family ’ s address. Accordingly, in the child ’ s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa. ”", "On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery :", "“Dear Sir,", "I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N ’ Djili ) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002.", "Yours faithfully,", "... ”", "30. On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant ’ s detention was incompatible with Article 3 § § 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day.", "Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal.", "On the same day the UNHCR ’ s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office ’ s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant ’ s father had disappeared in August 2000 and that her twin sister had been taken to Congo- Brazzaville four months earlier.", "31. On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported.", "There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B. ’ s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute.", "32. The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office ’ s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation.", "On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter ’ s deportation to Kinshasa.", "33. On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B. ’ s home, only to discover that he had disappeared.", "On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her.", "34. The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities.", "The case had attracted considerable attention from the press in the meantime.", "35. On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa.", "36. On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification.", "37. At the request of the Aliens Office, the director of Transit Centre no. 127 described the second applicant ’ s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no. 127 were concerned about the welfare of children, particularly unaccompanied minors." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "38. Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980", "(a) Appeals against decisions on the entry, residence, settlement and expulsion of aliens", "Section 63", "“Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions.", "No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis. ...”", "(b) Measures entailing deprivation of liberty", "Section 71", "“Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 2 5, 27, 29, second paragraph, 51/ 5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63 /5, third paragraph, 67 and 74/ 6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found.", "Aliens held in a designated place at the border pursuant to section 74/ 5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held.", "They may renew the appeal referred to in the preceding paragraphs at monthly intervals.”", "Section 72", "“The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released.", "The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness.", "An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate.", "The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file.", "Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.”", "Section 73", "“If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.”", "Section 74", "“If the Minister decides to prolong the alien ’ s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/ 5 ( 3 ), or section 74 / 6 ( 2 ), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.”", "Section 74/ 4", "“§ 1. Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them.", "§ 2. Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if:", "(a) the carrier that was due to take them to their country of destination refuses to allow them to embark; or", "(b) the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3.", "§ 3. If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers ’ accommodation and stay and any medical expenses they incur.", "...”", "Section 74/ 5", "“§ 1. The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory:", "1 o aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities;", "2 o aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border.", "§ 2. The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1.", "Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom.", "§ 3. Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided:", "1 o the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and", "2 o the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1 o and are prosecuted with all due diligence and the alien ’ s physical removal within a reasonable period remains possible.", "After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister.", "The total length of detention shall under no circumstances exceed five months.", "If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months.", "§ 4. The following may enter the Kingdom:", "1 o aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1 o has been taken;", "2 o aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1 o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof;", "3 o aliens referred to in § 1 who have been held for a total period of five or eight months respectively.", "...”", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "39. Convention on the Rights of the Child of 20 November 1989, ratified by Belgium by a law of 25 November 1991", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision .”", "Article 10", "“1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.", "...”", "Article 22", "“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.", "2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.”", "Article 37", "“States Parties shall ensure that:", "...", "( b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;", "( c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;", "...”", "40. In its “ Concluding observations of the Committee on the Rights of the Child: Belgium ” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium :", "“28. ...", "(a) Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation;", "(b) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres;", "(c) Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor;", "(d) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process;", "(e) Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs;", "(f) Ensure that, if family reunification is carried out, it is done in the best interests of the child;", "(g) Expand and improve follow-up of returned unaccompanied minors.”", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "41. The applicants complained that the second applicant had been detained and deported in violation of Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Detention of the second applicant", "1. The applicants ’ submissions", "42. The applicants submitted that the detention of the second applicant, who was then five years old, for nearly two months in a closed centre for adults constituted inhuman or degrading treatment prohibited by Article 3 of the Convention. They explained that Transit Centre no. 127 was a closed centre near Brussels Airport used to detain illegal immigrants pending their removal from the country. As had been noted in the Committee on the Rights of the Child ’ s second report on Belgium dated 7 July 2002, no facilities for children of the second applicant ’ s age existed in 2002. Accordingly, no arrangements were in place to attend to the second applicant ’ s needs and the only assistance she received was from another Congolese minor. Despite all the assistance given by individual members of staff, the fact remained that there had been a violation of Article 3 of the Convention as, at a crucial stage in her development, the second applicant had been denied freedom of movement, had been unable to play or express her feelings, and had been held in precarious conditions in an adult world where liberty was restricted. The Government had had other, more appropriate, options at their disposal. They could, for instance, have placed the second applicant with the Aid to Young People Department. The applicants noted, lastly, that the second applicant had suffered from sleeping disorders after her release from detention.", "2. The Government ’ s submissions", "43. The Government argued that, in order to determine whether the second applicant ’ s detention for two months in a closed centre – Transit Centre no. 127 – was capable of constituting inhuman or degrading treatment, the facts of the case had to be taken into account.", "In their submission, it had not been possible for the child to be given permission to enter Belgian territory without any identity papers or a visa. Nor could she have been allowed to leave with her uncle, as he had not provided any evidence to show that he was her guardian or established that he was a relative. At that juncture the Canadian authorities had not offered to issue a laissez-passer, and indeed none had been requested by the applicants. Had the first applicant travelled to Belgium, her daughter ’ s detention and subsequent removal would, no doubt, have been avoided.", "44. The chances of finding accommodation in a more suitable centre were virtually non-existent and, above all, would not have guaranteed the child ’ s supervision or, therefore, her protection. There had accordingly been a risk that she would disappear. Furthermore, although the place of detention was not adapted to the needs of a five-year-old child, particularly for what turned out to be quite a lengthy period, the explanation for this lay in the exceptional circumstances of the case and in the fact that, since situations of this type were relatively rare at the time, adequate procedures and structures had yet to be established.", "Legislation had since been introduced in the form of the financial planning Act ( loi-programme ) of 24 December 2002, which provided for the appointment of a guardian and for the minor to be taken into care. In addition, on 19 May 2006, the Cabinet had approved in principle a measure intended to prohibit the detention in a closed centre of unaccompanied foreign minors arrested at the border.", "45. The first applicant had been informed of her daughter ’ s situation straightaway and had been allowed to speak with her on the telephone for as long as she wished. The staff at the centre had gone to considerable lengths to look after the second applicant, as Mr Ma. had noted in his letter of 23 August 2002. Moreover, in his report of 23 November 2004, the director of Transit Centre no. 127 had noted that the medical and administrative staff at the centre had been attentive to her needs, that she had had daily telephone contact with her mother and uncle and had been integrated into the family life of children of her own age by the children ’ s mothers. In the light of all this, it was not so much the second applicant ’ s detention in the instant case that was in issue but the very principle of the detention of minors and the fact that the Belgian authorities had rejected the proposed alternative accommodation.", "46. As to the length of the detention, the explanation for this lay in the lengths to which the authorities had gone to clarify the second applicant ’ s situation, a particular example of this being the care with which the Commissioner-General for Refugees and Stateless Persons had examined her expedited appeal. Various requests for information had been made by the Aliens Office to various persons and bodies, including international organisations and private individuals in Canada and the Democratic Republic of Congo, in order to find the most appropriate solution. Another contributory factor had been the unceasing efforts the Belgian authorities had made to find a suitable home for the second applicant in her country of origin following the dismissal of her application for asylum.", "47. The Government further alleged that areas of uncertainty remained in the case. For example, why was it that no application for a visa was made at the time to enable the second applicant to continue her journey to Canada and what had become of the second applicant ’ s father.", "There were also question marks over the first applicant ’ s conduct : she had not mentioned the existence of her two children in her application for asylum in Canada or sought a visa to enable her to travel to Belgium as a matter of urgency, firstly to be with her daughter and then to take her back to Canada. The Government considered that both the first applicant and the family had failed to cooperate with the competent authorities and had brought the situation of which they now complained upon themselves by treating certain matters as a “ fait accompli ”. They argued that the first applicant could not therefore hold the Belgian State accountable for the two months during which it had looked after the second applicant as well as it was able.", "3. The Court ’ s assessment", "48. Article 3 makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe ( see Soering v. the United Kingdom, 7 July 1989, § 8 8, Series A no. 161).", "In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions, 1997 ‑ VIII ).", "In order to carry out this assessment, regard must be had to “ the fact that the Convention is a ‘ living instrument which must be interpreted in the light of present-day conditions ’ [and] that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies ” ( see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V).", "49. The Court will first examine the Article 3 complaint of the second applicant – she being the person who was detained – before proceeding to consider the complaint of her mother (the first applicant), who also claims that she was a victim of the measure.", "( a) The second applicant", "50. The Court notes that the second applicant, who was only five years old, was held in the same conditions as adults. She was detained in a centre that had initially been designed for adults, even though she was unaccompanied by her parents and no one had been assigned to look after her. No measures were taken to ensure that she received proper counselling and educational assistance from qualified personnel specially mandated for that purpose. That situation lasted for two months. It is further noted that the respondent State have acknowledged that the place of detention was not adapted to her needs and that there were no adequate structures in place at the time.", "51. A five-year-old child is quite clearly dependent on adults and has no ability to look after itself so that, when separated from its parents and left to its own devices, it will be totally disoriented.", "52. The fact that the second applicant received legal assistance, had daily telephone contact with her mother or uncle and that staff and residents at the centre did their best for her cannot be regarded as sufficient to meet all her needs as a five-year-old child. The Court further considers that the uncoordinated attention she received was far from adequate.", "53. It reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals ( see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII).", "54. In this connection, the Court must examine whether or not the impugned regulations and practices, and in particular the manner in which they were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 3 of the Convention.", "55. The second applicant ’ s position was characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by Article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicant ’ s status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3 of the Convention.", "56. The Court observes that, whereas under the general law minors came within the jurisdiction of the youth courts, there was a legal void at the time in respect of unaccompanied foreign minors. The respondent State accepted that the prospects of finding accommodation in a more suitable centre were virtually non-existent and that such centres as did exist did not have facilities for the child ’ s supervision or, therefore, protection. Furthermore, there was no statutory basis on which the courts could review the conditions under which minors were held or require the authorities to provide legal, humanitarian and social assistance where necessary ( see, mutatis mutandis, Amuur v. France, 25 June 1996, § 53, Reports 1996-III). The only available remedy was an application to the chambre du conseil under section 71 of the aforementioned Act. In such cases, the question before the chambre du conseil was whether the detention was lawful, not whether it was appropriate.", "57. Following an application by the second applicant ’ s lawyer on 9 October 2002, the chambre du conseil ruled on 16 October 2002 that the second applicant ’ s detention was unlawful under the Convention on the Rights of the Child and ordered her immediate release. It expressly found that it had no jurisdiction to examine the appropriateness of detention or the conditions in which she was held, or to modify the regime and order alternative arrangements.", "Moreover, prior to applying to the chambre du conseil, the second applicant ’ s lawyer had referred the matter to the Aliens Office on 26 September 2002 and, referring to her isolation and the risks of psychological damage, requested her placement with foster parents or, failing that, in a specialised institution. The inescapable conclusion must therefore be that the domestic authorities failed to take action to avoid or remedy the alleged shortcomings, despite being expressly informed of the position.", "Furthermore, in his decision of 25 September 2002, the Commissioner-General for Refugees and Stateless Persons had drawn the Minister of the Interior ’ s attention to the fact that the second applicant was a minor and entitled to be reunited with her family by virtue of Article 10 of the Convention on the Rights of the Child. On 13 June 2002 the Committee on the Rights of the Child had recommended that the Belgian State should expedite efforts to establish special reception centres and that stays in such centres should be for the shortest time possible.", "58. The Court considers that the measures taken by the Belgian authorities – informing the first applicant of the position, giving her a telephone number where she could reach her daughter, appointing a lawyer to assist the second applicant and liaising with the Canadian authorities and the Belgian embassy in Kinshasa – were far from sufficient to fulfil the Belgian State ’ s obligation to provide care for the second applicant. The State had, moreover, had an array of means at its disposal. The Court is in no doubt that the second applicant ’ s detention in the conditions described above caused her considerable distress. Nor could the authorities who ordered her detention have failed to be aware of the serious psychological effects it would have on her. In the Court ’ s view, the second applicant ’ s detention in such conditions demonstrated a lack of humanity to such a degree that it amounted to inhuman treatment.", "59. There has therefore been a violation of Article 3 of the Convention.", "( b) The first applicant", "60. The Court reiterates, firstly, that Article 3 affords absolute protection, irrespective of any reprehensible conduct on the part of the applicant ( see, mutatis mutandis, Soering, cited above, § 88). Accordingly, it cannot accept the Belgian Government ’ s argument that the conduct of the first applicant was such as to prevent the Court from finding a violation.", "61. The Court reiterates, secondly, that the issue whether a parent qualifies as a “ victim ” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant ’ s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent ’ s enquiries. The essence of such a violation lies in the authorities ’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities ’ conduct ( see, mutatis mutandis, Çakıcı v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV, and Hamiyet Kaplan and Others v. Turkey, no. 36749/97, § 67, 13 September 2005 ).", "62. As regards the Belgian authorities ’ conduct towards the first applicant, it is apparent from the material before the Court that the only action the Belgian authorities took was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court has no doubt that, as a mother, the first applicant suffered deep distress and anxiety as a result of her daughter ’ s detention. In view of the circumstances of the case, the Court concludes that the level of severity required for a violation of Article 3 of the Convention was attained in the present case.", "63. There has therefore been a violation of Article 3 of the Convention.", "B. The second applicant ’ s deportation", "1. The applicants ’ submissions", "64. The applicants also alleged that the Belgian authorities had engaged in treatment proscribed by Article 3 of the Convention in that they had deported the second applicant without awaiting the Canadian authorities ’ decision on their application for family reunification and had failed to ensure that she would be met by a member of the family or, at least, a Belgian official. They said that the second applicant, who was only five years old at the time, had travelled without anyone being assigned to accompany her and had been forced to wait at Kinshasa Airport from 5 p.m. until approximately 11 p.m., when Ms T. arrived to collect her. In their submission, deporting the child of a person with recognised refugee status was contrary to the fundamental rule that asylum - seekers should not be expelled. There was, furthermore, a danger in such cases that the authorities in the country of origin would use the child ’ s presence there to compel the refugee to return or even that they would seek to exact revenge on the child. The applicants added that the Government had been aware that neither B., who was a student, nor any other member of the family was in a position to look after the second applicant. In their submission, their case had to be distinguished from the case of Nsona v. the Netherlands (28 November 1996, Reports 1996 ‑ V), in which a nine-year-old girl had been deported in an aircraft belonging to one of her father ’ s acquaintances and had been accompanied by a ( sufficiently ) close relative. The present case was different in that the second applicant had travelled alone. It was not enough to say that an air hostess had been assigned to look after her by the airline. Furthermore, the complications in Nsona had come about following the intervention of counsel for the applicant in that case, which was not the position in the present case. The fact that the Belgian authorities had been aware of the first applicant ’ s refugee status in Canada and that the second applicant had ultimately returned to Europe after five days indicated that the decision to deport her was disproportionate. Lastly, as the applicants had already stated with regard to the second applicant ’ s detention, the Government had had other means at their disposal.", "2. The Government ’ s submissions", "65. The Government submitted that in the absence of papers authorising the second applicant to travel and to enter the country, the Belgian authorities had had no reason not to deport her. In addition, the first applicant had at no stage established that she was the child ’ s mother and the Belgian authorities had managed to establish contact with other members of her family. In those circumstances, they had acted properly in sending the child back to her family. The Government said that removal had been necessary and that there had been a legal basis for it, so that the arguments had to be confined to the conditions in which the deportation had taken place.", "They observed that the applicants had not alleged that the second applicant was at risk of treatment proscribed by Article 3 if she returned to Kinshasa; the applicants ’ argument was that, on account of her age, deportation itself constituted proscribed treatment. In the Government ’ s submission, the arrangements made for the second applicant ’ s removal were comparable to those in Nsona and, indeed, in certain respects were more favourable than in that case. Although the trauma suffered by the child and the lack of anyone to meet her at Kinshasa Airport were regrettable, there had been no problems with the conditions in which the second applicant had travelled as she had been accompanied all the way to the airport by a social worker and there placed in the care of an air hostess who had been assigned to accompany her by the airline, as its report dated 25 October 2002 indicated. The Belgian authorities had, moreover, received assurances that members of the second applicant ’ s family would collect her at the airport. Nor were the authorities responsible for the fact that her uncle, B., had reneged on his promise at the last minute; in any event, his failure to turn up had been of no consequence because the child was met by a representative of the Congolese authorities, who had accommodated her for the night. The Government considered that primary responsibility for the additional inconvenience that was caused to the child lay with B. Nevertheless, they acknowledged that the deportation was not executed with proper vigilance. In particular, they admitted that they should have anticipated the possibility that B. might not turn up and regretted not having done so. The Government nonetheless considered that the child ’ s family had no grounds for complaint in that respect, as it was the family, and in particular the first applicant, who were responsible for the situation.", "3. The Court ’ s assessment", "66. The Court will begin by examining the complaint concerning the second applicant ’ s rights and would state at the outset that it is struck by the failure to provide adequate preparation, supervision and safeguards for her deportation.", "For example, the Belgian authorities stood by their decision to proceed with the second applicant ’ s deportation on 17 October 2002 despite two new factual developments, these being the chambre du conseil ’ s decision of the previous day to order her immediate release on the grounds that her detention was unlawful and the fact that the UNHCR had informed the authorities that the first applicant had acquired refugee status in Canada.", "67. As regards the conditions in which the second applicant travelled, the Court notes that, although an assistant from the centre accompanied her as far as customs, the second applicant had to travel alone as the Belgian authorities had not assigned an adult to accompany her.", "As to the arrangements in her country of origin, the Belgian authorities merely informed her uncle B., who was the only relative they had managed to trace in Kinshasa, of her arrival, but did not expressly require his presence or make sure that he would be at the airport. The Court cannot, therefore, accept the Government ’ s submission that they were not responsible for the situation or for the fact that B. did not turn up. The Belgian authorities had not considered or made alternative arrangements for the second applicant ’ s arrival and it was only after several hours ’ wait at the airport that a solution – and a wholly improvised one at that – was found by the Congolese authorities.", "68. In the Court ’ s view, this shows that the Belgian authorities did not seek to ensure that the second applicant would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin. This view is not altered by the fact that the airline decided to assign an air hostess – an ordinary member of the flight crew – to look after her for the duration of the flight or that the second applicant was ultimately taken into the home of a representative of the Congolese authorities after an almost six-hour wait at the airport.", "69. The Court considers that the second applicant ’ s deportation in such conditions was bound to cause her extreme anxiety and demonstrated such a total lack of humanity towards someone of her age and in her situation as an unaccompanied minor as to amount to inhuman treatment. The Court also finds that, by deporting the second applicant, the Belgian State violated its positive obligations to take requisite measures and precautions.", "70. As regards the first applicant and in the light of the case-law it has cited in relation to the previous complaint (see paragraph 61 above), the Court notes in particular that the Belgian authorities did not trouble themselves to advise her of her daughter ’ s deportation so that she only became aware of it when she tried to reach her at the closed centre on the telephone after the deportation had already taken place. The Court has no doubt that this caused the first applicant deep anxiety. The disregard such conduct showed for her feelings and the evidence in the case file lead the Court to find that the requisite threshold of severity has been attained in the present case.", "71. It follows from the foregoing that there has been a violation of both applicants ’ rights under Article 3 of the Convention on account of the second applicant ’ s deportation.", "II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION", "72. The applicants complained that the second applicant ’ s detention and deportation also violated Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The second applicant ’ s detention", "1. The applicants ’ submissions", "73. The applicants submitted that the second applicant ’ s detention also violated Article 8 of the Convention as it constituted disproportionate interference with their right to respect for their private and family life. The Belgian State was or should have been aware of the first applicant ’ s refugee status in Canada because of the letters it had received from Mr Ma. and the UNHCR ’ s intervention. The applicants argued that family reunification was a fundamental right of refugees and cited, among other authorities, Recommendation 1327 (1997) of the Parliamentary Assembly of the Council of Europe on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe. In their submission, the obligations incumbent on States that were parties to the Convention on the Rights of the Child signed in New York on 20 November 1989 (and in particular, Articles 3 and 10 thereof) could be used as a guide when assessing whether the interference with the child ’ s family life had been necessary. The reasons given by the Government in no way justified the interference, which had consisted of the second applicant ’ s detention notwithstanding a proposal by her lawyer for her to be placed with foster parents. Her illegal entry was not a reason for denying her fundamental rights; nor did her inability to travel to the Netherlands prevent her placement with foster parents. Furthermore, although family reunification in Canada would have taken some time, there had been no need to keep the child in a closed centre. Nor could the fact that members of her family had been located in Kinshasa serve to justify her detention since she was the daughter of a person with recognised refugee status and her return to her country of origin placed her safety and even her life at risk. The fact that the first applicant had been granted refugee status in Canada should, furthermore, have alerted the Belgian authorities to the need to act with great caution. Lastly, while the applicants accepted that the first applicant had been wrong to ask her brother to bring her daughter to Europe, they said that she had done so in the belief that it was in her daughter ’ s best interests.", "2. The Government ’ s submissions", "74. The Government pointed out that, while Article 8 did in principle apply to cases concerning aliens, an alien ’ s family life had to be reconciled with the State ’ s prerogatives in immigration cases. The Court had consistently affirmed in its case-law the principle that the State Parties to the Convention were entitled to control the entry of non-nationals into their territory and that that prerogative, which could result in interference with the alien ’ s family life, had to be exercised in conformity with the second paragraph of Article 8. In the Government ’ s submission, keeping an alien in detention after he or she had attempted to enter the national territory without complying with the relevant conditions and had asked to be given refugee status while the application for asylum was considered could not in itself be considered to constitute a violation of his or her family life. Detention enabled the State to issue a deportation order that would be enforceable in practice in the event of the request for asylum being turned down. The Government accepted that it was legitimate to enquire whether these principles ought to be moderated when the immigrant concerned was a young child. However, they nevertheless considered that in the instant case there had been no infringement of the second applicant ’ s family life for several reasons:", "(i) on her arrival at the airport, her uncle had fraudulently tried to pass her off as his daughter;", "(ii) no members of the family lived in Belgium;", "(iii) according to the information that had been provided to the authorities, it would not have been legally possible for the second applicant to continue her journey to the Netherlands with her uncle;", "(iv) the first applicant had not made any application for family reunification at the material time;", "(v) certain members of the family whom it had been possible to locate in Kinshasa had been contacted personally and duly informed of the second applicant ’ s arrival in her country of origin – moreover, there was no doubt that she would be permitted to enter the country;", "(vi) the Belgian authorities were not informed that the first applicant had been granted refugee status until 18 October 2002, that is to say, until after the deportation order had been executed.", "The Government further questioned why between July 2001 and August 2002 the first applicant had not made an application to the Canadian authorities and / or to the Canadian embassy in Kinshasa with a view to arranging for her daughter ’ s lawful immigration, preferring instead to use an illegal route with her brother ’ s assistance. They said in conclusion that the second applicant ’ s detention in a closed centre during the period necessary for the examination of her request for asylum and her appeal under the expedited procedure and from then till 17 October 2002 did not amount to interference that was contrary to the Convention.", "3. The Court ’ s assessment", "75. The Court considers that, by its very essence, the tie between the second applicant, a minor child, and her mother – the first applicant – comes within the definition of family life within the meaning of Article 8 of the Convention ( see, among other authorities, Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290, and Hokkanen v. Finland, 23 September 1994, § 54, Series A no. 299-A), especially considering that in the instant case the first applicant had been granted refugee status, so that the interruption of family life was solely a result of her decision to flee her country of origin out of a genuine fear of persecution within the meaning of the Geneva Convention Relating to the Status of Refugees of 28 July 1951. The Government did not dispute the fact that the relationship between the applicants constituted family life and, in this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life ( see, mutatis mutandis, Olsson v. Sweden ( no. 1), 24 March 1988, § 59, Series A no. 130; Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156; and Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX).", "76. In the Court ’ s view, the second applicant ’ s detention amounted to interference with both applicants ’ rights under Article 8 of the Convention. Indeed, this was not disputed by the Government.", "77. The Court reiterates that an infringement of an individual ’ s right to respect for his or her private and family life will violate Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society”, in other words, proportionate to the pursued objectives. The question before the Court is whether the interference was justified under paragraph 2 of Article 8 of the Convention.", "78. The Court observes that the detention was based on section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 and was therefore in accordance with the law.", "79. The second defendant was detained under the authorities ’ powers to control the entry and residence of aliens on the territory of the Belgian State. The decision to detain could have been in the interests of national security or the economic well-being of the country or, just as equally, for the prevention of disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of the second paragraph of Article 8 of the Convention.", "80. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court will examine, in the light of the case as a whole, whether the detention was necessary in a democratic society, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued ( see Amrollahi v. Denmark, no. 56811/00, § 33, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 ‑ IX; Adam v. Germany (dec.), no. 43359/98, 4 October 2001; and Mokrani v. France, no. 52206/00, § 26, 15 July 2003). The Court ’ s task here is to determine whether the second applicant ’ s detention struck a fair balance between the competing interests in the case.", "81. The Convention does not guarantee, as such, any right for an alien to enter or stay on the territory of the State of which he or she is not a national ( see Moustaquim v. Belgium, 18 February 1991, § 43, Series A no. 193, and Beldjoudi v. France, 26 March 1992, § 74, Series A no. 234-A). Furthermore, the Contracting States are under a duty to maintain public order, in particular by exercising their right, as a matter of well-established international law, to control the entry and residence of aliens. In this connection, detention in centres used for aliens awaiting deportation will be acceptable only where it is intended to enable the States to combat illegal immigration while at the same time complying with their international obligations, including those arising under the European Convention on Human Rights and the Convention on the Rights of the Child ( ratified by Belgium in 1991).", "Furthermore, the States ’ interest in foiling attempts to circumvent immigration rules must not deprive aliens of the protection afforded by these conventions or deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State ’ s immigration policy must therefore be reconciled.", "82. The Court observes that the effect of the second applicant ’ s detention was to separate her from the member of her family in whose care she had been placed and who was responsible for her welfare, with the result that she became an unaccompanied foreign minor, a category in respect of which there was a legal void at the time. Her detention significantly delayed the applicants ’ reunification. The Court further notes that, far from assisting her reunification with her mother, the authorities ’ actions in fact hindered it. Having been informed at the outset that the first applicant was in Canada, the Belgian authorities should have made detailed enquiries of their Canadian counterparts in order to clarify the position and bring about the reunification of mother and daughter. The Court considers that that duty became more pressing from 16 October 2002 onwards, that being the date when the Belgian authorities received the fax from the UNHCR contradicting the information they had previously held.", "83. The Court considers that the complaint can also be analysed from the perspective of the second applicant ’ s private life. It has often said that the expression “private life” is broad and does not lend itself to exhaustive definition. Thus, private life, in the Court ’ s view, includes a person ’ s physical and mental integrity. The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ( see, mutatis mutandis, Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B; Botta v. Italy, 24 February 1998, § 32, Reports 1998-I; and Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 -VI ).", "In this connection, in the absence of any risk of the second applicant ’ s seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults was unnecessary. Other measures could have been taken that would have been more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child. These included her placement in a specialised centre or with foster parents. Indeed, these alternatives had in fact been proposed by the second applicant ’ s counsel.", "84. The Court considers that, in view of her young age, the second applicant cannot bear any responsibility for her uncle ’ s attempts to deceive the Belgian authorities by passing her off as his daughter. The same applies to the conduct of her mother and family. Further, although the first applicant ’ s conduct was questionable and does not appear to have been entirely fault-free, it was not such as to deprive her of victim status in the instant case.", "85. Ultimately, since the second applicant was an unaccompanied foreign minor, the Belgian State was under an obligation to facilitate the family ’ s reunification ( see, mutatis mutandis, Johansen v. Norway, 7 August 1996, § 78, Reports 1996 ‑ III; Eriksson, cited above, § 71; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000 ‑ VIII ).", "86. In the light of all the foregoing considerations, the Court finds that there has been disproportionate interference with the applicants ’ right to respect for their family life.", "87. There has therefore been a violation of Article 8 of the Convention.", "B. The second applicant ’ s deportation", "1. The applicants ’ submissions", "88. The applicants relied on the arguments they had used with respect to the complaint under Article 3 of the Convention.", "2. The Government ’ s submissions", "89. The Government argued that it had to be remembered that the first applicant had sought to deceive the Belgian authorities with her brother ’ s help. Her brother had clearly stated to the Belgian authorities that it was not his intention to look after his niece, as he did not wish to have problems with the Dutch authorities. The first applicant could have used her refugee papers or her Congolese passport, which had been issued on 27 September 2002, to travel. Moreover, her request to the Canadian authorities for asylum did not extend to the second applicant and between July 2001 and August 2002 she had not taken any action with a view to family reunification. The enquiries that had been made had revealed that she had members of her family living in Kinshasa. Lastly, the second applicant ’ s return to her country of origin had been organised in such a way that a Congolese official representative had been there to accommodate her when her family failed to meet her in Kinshasa.", "3. The Court ’ s assessment", "90. The Court does not consider it necessary to recapitulate the circumstances in which the deportation took place, as these have already been described above (see paragraphs 66 et seq.). It reiterates that the Belgian State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants ’ reunification (see paragraph 85 above). By deporting the second applicant, the authorities did not assist their reunification (see paragraph 82 above). Nor did they ensure that the second applicant would in fact be looked after in Kinshasa ( see paragraph 67 above). In these circumstances, the Court considers that the Belgian State failed to comply with its positive obligations and interfered with the applicants ’ right to respect for their family life to a disproportionate degree.", "91. There has therefore been a violation of both applicants ’ rights under Article 8 of the Convention as a result of the second applicant ’ s deportation.", "III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AS A RESULT OF THE SECOND APPLICANT ’ S DETENTION", "92. The applicants also argued that the second applicant ’ s detention violated Article 5 § 1 ( d) of the Convention, which provides :", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ”", "A. The applicants ’ submissions", "93. In the applicants ’ submission, the second applicant ’ s detention did not serve the purpose set out in paragraph ( d) of Article 5, which was the only provision that permitted the detention of a minor. The sole aim of the detention in the present case had been to prevent the second applicant from entering Belgium and to facilitate her subsequent deportation to her country of origin. The applicants argued in the alternative that were the Court to consider that the word “person” referred to in Article 5 § 1 ( f) of the Convention included minors, the child ’ s age and minority would nevertheless remain an important factor in assessing the lawfulness of the detention. In other words, when a minor was detained, a stricter review would be required, in accordance with the Convention on the Rights of the Child. In such cases, the Government would have to be able to prove that the detention was in the child ’ s interest. In the second applicant ’ s case, there had been no need for the detention. Alternatives had been available such as permitting her to enter the country and stay with foster parents under the supervision of the Aid to Younger People in the French Community Department. Furthermore, the second applicant ’ s deportation could not be regarded as release from detention and so was in breach of the chambre du conseil ’ s order of 16 October 2002. The applicants added that Crown Counsel had, in fact, had only one aim when he decided to defer his appeal against the order for the second applicant ’ s release and that was to facilitate her removal by the Government. They said that proof of this was to be found in the letter from the Aliens Office dated 15 October 2002. It followed that the second applicant ’ s detention subsequent to the order of 16 October 2002 was unlawful, its sole purpose being to allow her deportation before the order for her release became final.", "B. The Government ’ s submissions", "94. The basis for the detention of a foreign minor in Belgian law was to be found in section 74 / 5 of the Law of 15 December 1980, which made no distinction between aliens who had reached their majority and those who were still minors. There could be no one single answer to the question whether the detention of a foreign minor was lawful : the minor ’ s age and the particular difficulties with which the Belgian authorities were confronted were essential criteria for deciding on the best solution for the child. In any event, it would be hazardous to work on the premise that if a child was very young, it could “as it were serve as a safe conduct for third parties”, which was the situation that was in danger of arising if a rule was established prohibiting the detention of minors. The detention of a minor was, furthermore, consistent with the provisions of Article 5 § 1 ( f) of the Convention. As regards more specifically the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, while it was true that that court had ruled that the second applicant ’ s continued detention in Transit Centre no. 127 was unlawful and had ordered her release, Crown Counsel had a right under section 72 of the Law of 15 December 1980 to appeal within twenty-four hours of the date of the decision. It was only on the expiration of that period that the order became final (in accordance with section 73 of the Act) and the alien had to be released. In the present case, the order of 16 October 2002 had not become final until midnight on 17 October 2002 and it was only at that point, once the time - limit for appealing had expired, that the second applicant had to be released. The Government said that it followed from this that the second applicant ’ s continued detention until 17 October 2002 – when she was taken to the airport to be put on the plane to Kinshasa – complied with the provisions of domestic law. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention had ended when the deportation order was executed.", "C. The Court ’ s assessment", "95. The Court notes at the outset that the first applicant has not been detained and accordingly cannot claim personally to have been a victim of a violation of Article 5 of the Convention.", "96. In so far as this complaint concerns the second applicant, the Court reiterates that the Contracting States are entitled to control the entry and residence of non-nationals on their territory at their discretion, but stresses that this right must be exercised in conformity with the provisions of the Convention, including Article 5. In proclaiming the right to liberty, paragraph 1 of Article 5 contemplates the physical liberty of the person and its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion ( see, mutatis mutandis, Amuur, cited above, § 42). The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision ( see, mutatis mutandis, K. ‑ F. v. Germany, 27 November 1997, § 70, Reports 1997 ‑ VII; Čonka v. Belgium, no. 51564/99, § 42, ECHR 2002-I; and D.G. v. Ireland, no. 39474/98, § 74, ECHR 2002-III). Detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5 which is to protect an individual from arbitrariness ( see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114).", "97. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, the Court must assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that a national law authorising deprivation of liberty must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness.", "98. As regards the compatibility of the detention with domestic law in the instant case, the Court considers that two periods can be distinguished, these being the period prior to the order of 16 October 2002 in which the chambre du conseil declared the second applicant ’ s detention unlawful and the period after that date. It observes that the Government have not sought to argue that the chambre du conseil ’ s ruling that the detention was illegal affected the second applicant ’ s victim status. In any event, it notes that the ruling did not bring the detention to an end. In the Court ’ s view, the finding by the domestic court that the first period of detention was unlawful raises serious doubts as to the lawfulness of the second period.", "99. The second applicant was placed in detention pursuant to section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, initially pending a decision on her application for asylum and subsequently pending her deportation. At that time, the Act did not contain any provisions specific to minors. Thus, the fact that the alien concerned was a minor was of no relevance to the application of the provisions governing his or her detention.", "100. The Court does not agree with the second applicant ’ s submission that paragraph ( d) of Article 5 § 1 of the Convention is the only provision which permits the detention of a minor. It in fact contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or for the purpose of bringing them before the competent legal authority to decide.", "101. In the instant case, the ground for the second applicant ’ s detention was that she had entered the country illegally as she did not have the necessary documents. Her detention therefore came within paragraph ( f) of Article 5 § 1 of the Convention which permits “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”.", "102. However, the fact that the second applicant ’ s detention came within paragraph ( f) of Article 5 § 1 does not necessarily mean that it was lawful within the meaning of this provision, as the Court ’ s case - law requires that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention ( see, mutatis mutandis, Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references ).", "103. The Court notes that the second applicant was detained in a closed centre intended for illegal immigrants in the same conditions as adults; these conditions were consequently not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor.", "104. In these circumstances, the Court considers that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the second applicant ’ s right to liberty.", "105. There has therefore been a violation of the second applicant ’ s rights under Article 5 § 1 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLES 5 § 4 AND 13 OF THE CONVENTION", "106. Relying on Articles 5 § 4 and 13 of the Convention, the applicants maintained that the Belgian State had rendered the second applicant ’ s appeal futile and ineffective by proceeding to deport her the day after her release was ordered, in defiance of that order. Article 5 § 4 provides :", "Article 5 § 4", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "Article 13 reads as follows :", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The applicants ’ submissions", "107. The applicants alleged that prolonging the second applicant ’ s detention and then proceeding to deport her following an order by the chambre du conseil for her immediate release was contrary to the Convention and rendered the remedy ineffective. In their submission, even assuming that detention could be prolonged in order to enable Crown Counsel to appeal against the order within twenty-four hours, detention could only be used for that purpose and not as a means to deport the alien within that period. Furthermore, once the alien had been deported, the powers of review of the chambre du conseil and the indictments division became redundant, even though deportation did not amount to release. They concluded from the above that they had not had an effective remedy in respect of the second applicant ’ s detention.", "B. The Government ’ s submissions", "108. The Government maintained that the right of appeal to the chambre du conseil was an effective remedy within the meaning of the Convention. The chambre du conseil ’ s review concerned both the detention and the deportation order on which it was based. Referring specifically to the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, the Government argued that their observations on the issue of the lawfulness of the second applicant ’ s detention showed that its extension until 17 October 2002 was lawful. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention ended when the deportation order was executed.", "C. The Court ’ s assessment", "109. The Court has already found that since the first applicant was not detained she could not personally claim to have been a victim of a violation of Article 5 of the Convention (see paragraph 95 above).", "110. In so far as this complaint is also made by the second applicant, the Court refers firstly to its case-law holding that a complaint under Article 13 will be absorbed by a complaint under Article 5 § 4 since the requirements of Article 13 are less strict than those of Article 5 § 4, which must be regarded as the lex specialis for Article 5 grievances ( see Chahal v. the United Kingdom, 15 November 1996, § 126, Reports 1996-V ).", "111. The Court will therefore examine the complaint solely under Article 5 § 4 of the Convention.", "112. The purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected ( see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release ( see, mutatis mutandis, Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003 ‑ X ).", "113. The Court notes that the Belgian authorities made arrangements for the second applicant ’ s deportation on the day after she lodged an application to the chambre du conseil for release, that is to say, even before it had delivered its decision. Furthermore, the authorities did not at any stage reconsider the decision to deport her. The Court also notes that the second applicant was deported on the scheduled date, notwithstanding the fact that the twenty-four-hour period for an appeal by Crown Counsel, during which a stay applied, had not expired. Crown Counsel deliberately chose to reserve his decision after receiving a letter from the Belgian authorities informing him of their view that the second applicant should remain in detention so that she could be deported to Kinshasa. Lastly, the Government have acknowledged that the Belgian authorities ’ conduct was not dictated by the chambre du conseil ’ s decision to grant the application for release as her deportation had been arranged in advance.", "Even assuming that the second applicant ’ s deportation can be equated to “release” for the purposes of Article 5 § 4 of the Convention, it follows from the foregoing considerations that there was no link between her deportation and the exercise of the remedy or the fact that it was granted.", "In these circumstances, the Court finds that the second applicant ’ s appeal to the chambre du conseil appears, in the circumstances of the case, to have been ineffective.", "114. There has therefore been a violation of Article 5 § 4 of the Convention. The Court does not consider that any separate examination of the complaint under Article 13 of the Convention is necessary.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "115. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "116. The applicants said that they had sustained non-pecuniary damage which they put at 10, 000 euros (EUR) for the first applicant and EUR 25, 000 for the second.", "117. The Government observed that the first applicant had only requested family reunification after her daughter ’ s deportation and arrival in Canada (on 29 October 2002) and said that the first applicant ’ s role in the case had not been clearly established. Either she had been unaware that her daughter had left Kinshasa, in which case it had been on her brother ’ s initiative and it was to him and not the Government that she should address her grievances, or she herself had been the instigator, in which case she ought not to be awarded anything because she had knowingly broken the law. In the light of these considerations, the Government submitted that the finding of a violation would afford adequate compensation for the non-pecuniary damage sustained by the first applicant. They left the issue of the non-pecuniary damage sustained by the second applicant to the Court ’ s discretion whilst pointing out that they had sought to defend her interests as best they could in what, to say the least, had been a complex situation.", "118. In the light of the various violations it has found, including the violation of both the first and second applicant ’ s rights under Article 3, which, as has been noted, confers absolute protection ( see Soering, cited above, § 88), the Court considers the sums claimed by each of the applicants reasonable and awards them the amounts by way of just satisfaction.", "B. Costs and expenses", "119. The applicants, who have produced detailed fee notes, claimed EUR 14, 177. 04 for costs and expenses. This amount was broken down into EUR 10, 500 for the fees and expenses of Mr Vanheule, EUR 3, 042 for the fees and expenses of Mr Ma., EUR 141 for the fees of a Canadian lawyer, Mr A., in connection with family reunification in Canada in 2002, EUR 35 for the costs of a visa to enable the first applicant to attend the hearing before the Court and EUR 459. 04 in travel expenses.", "120. The Government referred to the principles established by the Court and submitted that it should disallow the fees and expenses of Mr A., and at least part of the fees and expenses of Mr Ma. It left the remainder of the claim to the Court ’ s discretion.", "121. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy ( just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).", "The Court notes that the Government have not contested Mr Vanheule ’ s fees or the first applicant ’ s claim in respect of the cost of her visa and travel expenses. It considers that the action taken by Mr Ma. was intended to prevent the violation it has found to have occurred and that the amount claimed in respect thereof is reasonable. Consequently, it awards the applicants the sum of EUR 14, 036 for costs and expenses, less the amount which the Council of Europe has granted in legal aid.", "C. Default interest", "122. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal ( Canada ).", "9. The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003.", "10. After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her.", "11. At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter.", "He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father ’ s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant ’ s attempts to bring her to Canada lawfully had failed.", "12. On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter.", "13. On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980.", "On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/ 5 of that Act.", "Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands.", "On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status.", "14. On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant ’ s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her.", "In the interim, the first applicant lodged an application in Canada for a visa for her daughter.", "15. On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada.", "16. On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant ’ s request for asylum under the Dublin Convention, but they refused.", "It also asked K. to furnish the addresses of the members of the family in Kinshasa.", "17. In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs.", "18. On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant ’ s former address in Kinshasa and her parents ’ address there.", "19. On 27 August 2002 the second applicant ’ s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d ’ Etat for an order setting aside the removal directions.", "The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons.", "20. On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant ’ s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses.", "21. In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada.", "22. On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant ’ s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior ’ s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989.", "23. On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms M., an 18- year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know.", "The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal.", "No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M. ’ s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle.", "24. In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees ( UNHCR), the Red Cross and the Belgian embassy in Kinshasa.", "With the embassy ’ s help it was able, on the basis of K. ’ s statements, to identify and subsequently locate a member of the second applicant ’ s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B. ’ s home and explained the situation to him, but B. told him that he did not have the means to look after the child.", "25. On 9 October 2002 the second applicant ’ s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74 / 5, paragraph 1, of the Law of 15 December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant ’ s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children.", "In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child.", "26. On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74 / 4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed.", "27. On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant ’ s application and requested the case file, which the Aliens Office supplied on 14 October 2002.", "28. According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October.", "29. In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant ’ s release:", "“... the enquiries have enabled the person concerned ’ s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant ’ s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family ’ s address. Accordingly, in the child ’ s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa. ”", "On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery :", "“Dear Sir,", "I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N ’ Djili ) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002.", "Yours faithfully,", "... ”", "30. On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant ’ s detention was incompatible with Article 3 § § 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day.", "Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal.", "On the same day the UNHCR ’ s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office ’ s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant ’ s father had disappeared in August 2000 and that her twin sister had been taken to Congo- Brazzaville four months earlier.", "31. On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported.", "There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B. ’ s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute.", "32. The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office ’ s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation.", "On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter ’ s deportation to Kinshasa.", "33. On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B. ’ s home, only to discover that he had disappeared.", "On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her.", "34. The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities.", "The case had attracted considerable attention from the press in the meantime.", "35. On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa.", "36. On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification.", "37. At the request of the Aliens Office, the director of Transit Centre no. 127 described the second applicant ’ s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no. 127 were concerned about the welfare of children, particularly unaccompanied minors." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "38. Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980", "(a) Appeals against decisions on the entry, residence, settlement and expulsion of aliens", "Section 63", "“Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions.", "No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis. ...”", "(b) Measures entailing deprivation of liberty", "Section 71", "“Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 2 5, 27, 29, second paragraph, 51/ 5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63 /5, third paragraph, 67 and 74/ 6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found.", "Aliens held in a designated place at the border pursuant to section 74/ 5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held.", "They may renew the appeal referred to in the preceding paragraphs at monthly intervals.”", "Section 72", "“The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released.", "The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness.", "An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate.", "The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file.", "Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.”", "Section 73", "“If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.”", "Section 74", "“If the Minister decides to prolong the alien ’ s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/ 5 ( 3 ), or section 74 / 6 ( 2 ), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.”", "Section 74/ 4", "“§ 1. Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them.", "§ 2. Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if:", "(a) the carrier that was due to take them to their country of destination refuses to allow them to embark; or", "(b) the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3.", "§ 3. If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers ’ accommodation and stay and any medical expenses they incur.", "...”", "Section 74/ 5", "“§ 1. The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory:", "1 o aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities;", "2 o aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border.", "§ 2. The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1.", "Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom.", "§ 3. Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided:", "1 o the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and", "2 o the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1 o and are prosecuted with all due diligence and the alien ’ s physical removal within a reasonable period remains possible.", "After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister.", "The total length of detention shall under no circumstances exceed five months.", "If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months.", "§ 4. The following may enter the Kingdom:", "1 o aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1 o has been taken;", "2 o aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1 o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof;", "3 o aliens referred to in § 1 who have been held for a total period of five or eight months respectively.", "...”", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "39. Convention on the Rights of the Child of 20 November 1989, ratified by Belgium by a law of 25 November 1991", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision .”", "Article 10", "“1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.", "...”", "Article 22", "“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.", "2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.”", "Article 37", "“States Parties shall ensure that:", "...", "( b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;", "( c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;", "...”", "40. In its “ Concluding observations of the Committee on the Rights of the Child: Belgium ” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium :", "“28. ...", "(a) Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation;", "(b) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres;", "(c) Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor;", "(d) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process;", "(e) Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs;", "(f) Ensure that, if family reunification is carried out, it is done in the best interests of the child;", "(g) Expand and improve follow-up of returned unaccompanied minors.”", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "41. The applicants complained that the second applicant had been detained and deported in violation of Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Detention of the second applicant", "1. The applicants ’ submissions", "42. The applicants submitted that the detention of the second applicant, who was then five years old, for nearly two months in a closed centre for adults constituted inhuman or degrading treatment prohibited by Article 3 of the Convention. They explained that Transit Centre no. 127 was a closed centre near Brussels Airport used to detain illegal immigrants pending their removal from the country. As had been noted in the Committee on the Rights of the Child ’ s second report on Belgium dated 7 July 2002, no facilities for children of the second applicant ’ s age existed in 2002. Accordingly, no arrangements were in place to attend to the second applicant ’ s needs and the only assistance she received was from another Congolese minor. Despite all the assistance given by individual members of staff, the fact remained that there had been a violation of Article 3 of the Convention as, at a crucial stage in her development, the second applicant had been denied freedom of movement, had been unable to play or express her feelings, and had been held in precarious conditions in an adult world where liberty was restricted. The Government had had other, more appropriate, options at their disposal. They could, for instance, have placed the second applicant with the Aid to Young People Department. The applicants noted, lastly, that the second applicant had suffered from sleeping disorders after her release from detention.", "2. The Government ’ s submissions", "43. The Government argued that, in order to determine whether the second applicant ’ s detention for two months in a closed centre – Transit Centre no. 127 – was capable of constituting inhuman or degrading treatment, the facts of the case had to be taken into account.", "In their submission, it had not been possible for the child to be given permission to enter Belgian territory without any identity papers or a visa. Nor could she have been allowed to leave with her uncle, as he had not provided any evidence to show that he was her guardian or established that he was a relative. At that juncture the Canadian authorities had not offered to issue a laissez-passer, and indeed none had been requested by the applicants. Had the first applicant travelled to Belgium, her daughter ’ s detention and subsequent removal would, no doubt, have been avoided.", "44. The chances of finding accommodation in a more suitable centre were virtually non-existent and, above all, would not have guaranteed the child ’ s supervision or, therefore, her protection. There had accordingly been a risk that she would disappear. Furthermore, although the place of detention was not adapted to the needs of a five-year-old child, particularly for what turned out to be quite a lengthy period, the explanation for this lay in the exceptional circumstances of the case and in the fact that, since situations of this type were relatively rare at the time, adequate procedures and structures had yet to be established.", "Legislation had since been introduced in the form of the financial planning Act ( loi-programme ) of 24 December 2002, which provided for the appointment of a guardian and for the minor to be taken into care. In addition, on 19 May 2006, the Cabinet had approved in principle a measure intended to prohibit the detention in a closed centre of unaccompanied foreign minors arrested at the border.", "45. The first applicant had been informed of her daughter ’ s situation straightaway and had been allowed to speak with her on the telephone for as long as she wished. The staff at the centre had gone to considerable lengths to look after the second applicant, as Mr Ma. had noted in his letter of 23 August 2002. Moreover, in his report of 23 November 2004, the director of Transit Centre no. 127 had noted that the medical and administrative staff at the centre had been attentive to her needs, that she had had daily telephone contact with her mother and uncle and had been integrated into the family life of children of her own age by the children ’ s mothers. In the light of all this, it was not so much the second applicant ’ s detention in the instant case that was in issue but the very principle of the detention of minors and the fact that the Belgian authorities had rejected the proposed alternative accommodation.", "46. As to the length of the detention, the explanation for this lay in the lengths to which the authorities had gone to clarify the second applicant ’ s situation, a particular example of this being the care with which the Commissioner-General for Refugees and Stateless Persons had examined her expedited appeal. Various requests for information had been made by the Aliens Office to various persons and bodies, including international organisations and private individuals in Canada and the Democratic Republic of Congo, in order to find the most appropriate solution. Another contributory factor had been the unceasing efforts the Belgian authorities had made to find a suitable home for the second applicant in her country of origin following the dismissal of her application for asylum.", "47. The Government further alleged that areas of uncertainty remained in the case. For example, why was it that no application for a visa was made at the time to enable the second applicant to continue her journey to Canada and what had become of the second applicant ’ s father.", "There were also question marks over the first applicant ’ s conduct : she had not mentioned the existence of her two children in her application for asylum in Canada or sought a visa to enable her to travel to Belgium as a matter of urgency, firstly to be with her daughter and then to take her back to Canada. The Government considered that both the first applicant and the family had failed to cooperate with the competent authorities and had brought the situation of which they now complained upon themselves by treating certain matters as a “ fait accompli ”. They argued that the first applicant could not therefore hold the Belgian State accountable for the two months during which it had looked after the second applicant as well as it was able.", "3. The Court ’ s assessment", "48. Article 3 makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe ( see Soering v. the United Kingdom, 7 July 1989, § 8 8, Series A no. 161).", "In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions, 1997 ‑ VIII ).", "In order to carry out this assessment, regard must be had to “ the fact that the Convention is a ‘ living instrument which must be interpreted in the light of present-day conditions ’ [and] that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies ” ( see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V).", "49. The Court will first examine the Article 3 complaint of the second applicant – she being the person who was detained – before proceeding to consider the complaint of her mother (the first applicant), who also claims that she was a victim of the measure.", "( a) The second applicant", "50. The Court notes that the second applicant, who was only five years old, was held in the same conditions as adults. She was detained in a centre that had initially been designed for adults, even though she was unaccompanied by her parents and no one had been assigned to look after her. No measures were taken to ensure that she received proper counselling and educational assistance from qualified personnel specially mandated for that purpose. That situation lasted for two months. It is further noted that the respondent State have acknowledged that the place of detention was not adapted to her needs and that there were no adequate structures in place at the time.", "51. A five-year-old child is quite clearly dependent on adults and has no ability to look after itself so that, when separated from its parents and left to its own devices, it will be totally disoriented.", "52. The fact that the second applicant received legal assistance, had daily telephone contact with her mother or uncle and that staff and residents at the centre did their best for her cannot be regarded as sufficient to meet all her needs as a five-year-old child. The Court further considers that the uncoordinated attention she received was far from adequate.", "53. It reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals ( see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII).", "54. In this connection, the Court must examine whether or not the impugned regulations and practices, and in particular the manner in which they were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 3 of the Convention.", "55. The second applicant ’ s position was characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by Article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicant ’ s status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3 of the Convention.", "56. The Court observes that, whereas under the general law minors came within the jurisdiction of the youth courts, there was a legal void at the time in respect of unaccompanied foreign minors. The respondent State accepted that the prospects of finding accommodation in a more suitable centre were virtually non-existent and that such centres as did exist did not have facilities for the child ’ s supervision or, therefore, protection. Furthermore, there was no statutory basis on which the courts could review the conditions under which minors were held or require the authorities to provide legal, humanitarian and social assistance where necessary ( see, mutatis mutandis, Amuur v. France, 25 June 1996, § 53, Reports 1996-III). The only available remedy was an application to the chambre du conseil under section 71 of the aforementioned Act. In such cases, the question before the chambre du conseil was whether the detention was lawful, not whether it was appropriate.", "57. Following an application by the second applicant ’ s lawyer on 9 October 2002, the chambre du conseil ruled on 16 October 2002 that the second applicant ’ s detention was unlawful under the Convention on the Rights of the Child and ordered her immediate release. It expressly found that it had no jurisdiction to examine the appropriateness of detention or the conditions in which she was held, or to modify the regime and order alternative arrangements.", "Moreover, prior to applying to the chambre du conseil, the second applicant ’ s lawyer had referred the matter to the Aliens Office on 26 September 2002 and, referring to her isolation and the risks of psychological damage, requested her placement with foster parents or, failing that, in a specialised institution. The inescapable conclusion must therefore be that the domestic authorities failed to take action to avoid or remedy the alleged shortcomings, despite being expressly informed of the position.", "Furthermore, in his decision of 25 September 2002, the Commissioner-General for Refugees and Stateless Persons had drawn the Minister of the Interior ’ s attention to the fact that the second applicant was a minor and entitled to be reunited with her family by virtue of Article 10 of the Convention on the Rights of the Child. On 13 June 2002 the Committee on the Rights of the Child had recommended that the Belgian State should expedite efforts to establish special reception centres and that stays in such centres should be for the shortest time possible.", "58. The Court considers that the measures taken by the Belgian authorities – informing the first applicant of the position, giving her a telephone number where she could reach her daughter, appointing a lawyer to assist the second applicant and liaising with the Canadian authorities and the Belgian embassy in Kinshasa – were far from sufficient to fulfil the Belgian State ’ s obligation to provide care for the second applicant. The State had, moreover, had an array of means at its disposal. The Court is in no doubt that the second applicant ’ s detention in the conditions described above caused her considerable distress. Nor could the authorities who ordered her detention have failed to be aware of the serious psychological effects it would have on her. In the Court ’ s view, the second applicant ’ s detention in such conditions demonstrated a lack of humanity to such a degree that it amounted to inhuman treatment.", "59. There has therefore been a violation of Article 3 of the Convention.", "( b) The first applicant", "60. The Court reiterates, firstly, that Article 3 affords absolute protection, irrespective of any reprehensible conduct on the part of the applicant ( see, mutatis mutandis, Soering, cited above, § 88). Accordingly, it cannot accept the Belgian Government ’ s argument that the conduct of the first applicant was such as to prevent the Court from finding a violation.", "61. The Court reiterates, secondly, that the issue whether a parent qualifies as a “ victim ” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant ’ s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent ’ s enquiries. The essence of such a violation lies in the authorities ’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities ’ conduct ( see, mutatis mutandis, Çakıcı v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV, and Hamiyet Kaplan and Others v. Turkey, no. 36749/97, § 67, 13 September 2005 ).", "62. As regards the Belgian authorities ’ conduct towards the first applicant, it is apparent from the material before the Court that the only action the Belgian authorities took was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court has no doubt that, as a mother, the first applicant suffered deep distress and anxiety as a result of her daughter ’ s detention. In view of the circumstances of the case, the Court concludes that the level of severity required for a violation of Article 3 of the Convention was attained in the present case.", "63. There has therefore been a violation of Article 3 of the Convention.", "B. The second applicant ’ s deportation", "1. The applicants ’ submissions", "64. The applicants also alleged that the Belgian authorities had engaged in treatment proscribed by Article 3 of the Convention in that they had deported the second applicant without awaiting the Canadian authorities ’ decision on their application for family reunification and had failed to ensure that she would be met by a member of the family or, at least, a Belgian official. They said that the second applicant, who was only five years old at the time, had travelled without anyone being assigned to accompany her and had been forced to wait at Kinshasa Airport from 5 p.m. until approximately 11 p.m., when Ms T. arrived to collect her. In their submission, deporting the child of a person with recognised refugee status was contrary to the fundamental rule that asylum - seekers should not be expelled. There was, furthermore, a danger in such cases that the authorities in the country of origin would use the child ’ s presence there to compel the refugee to return or even that they would seek to exact revenge on the child. The applicants added that the Government had been aware that neither B., who was a student, nor any other member of the family was in a position to look after the second applicant. In their submission, their case had to be distinguished from the case of Nsona v. the Netherlands (28 November 1996, Reports 1996 ‑ V), in which a nine-year-old girl had been deported in an aircraft belonging to one of her father ’ s acquaintances and had been accompanied by a ( sufficiently ) close relative. The present case was different in that the second applicant had travelled alone. It was not enough to say that an air hostess had been assigned to look after her by the airline. Furthermore, the complications in Nsona had come about following the intervention of counsel for the applicant in that case, which was not the position in the present case. The fact that the Belgian authorities had been aware of the first applicant ’ s refugee status in Canada and that the second applicant had ultimately returned to Europe after five days indicated that the decision to deport her was disproportionate. Lastly, as the applicants had already stated with regard to the second applicant ’ s detention, the Government had had other means at their disposal.", "2. The Government ’ s submissions", "65. The Government submitted that in the absence of papers authorising the second applicant to travel and to enter the country, the Belgian authorities had had no reason not to deport her. In addition, the first applicant had at no stage established that she was the child ’ s mother and the Belgian authorities had managed to establish contact with other members of her family. In those circumstances, they had acted properly in sending the child back to her family. The Government said that removal had been necessary and that there had been a legal basis for it, so that the arguments had to be confined to the conditions in which the deportation had taken place.", "They observed that the applicants had not alleged that the second applicant was at risk of treatment proscribed by Article 3 if she returned to Kinshasa; the applicants ’ argument was that, on account of her age, deportation itself constituted proscribed treatment. In the Government ’ s submission, the arrangements made for the second applicant ’ s removal were comparable to those in Nsona and, indeed, in certain respects were more favourable than in that case. Although the trauma suffered by the child and the lack of anyone to meet her at Kinshasa Airport were regrettable, there had been no problems with the conditions in which the second applicant had travelled as she had been accompanied all the way to the airport by a social worker and there placed in the care of an air hostess who had been assigned to accompany her by the airline, as its report dated 25 October 2002 indicated. The Belgian authorities had, moreover, received assurances that members of the second applicant ’ s family would collect her at the airport. Nor were the authorities responsible for the fact that her uncle, B., had reneged on his promise at the last minute; in any event, his failure to turn up had been of no consequence because the child was met by a representative of the Congolese authorities, who had accommodated her for the night. The Government considered that primary responsibility for the additional inconvenience that was caused to the child lay with B. Nevertheless, they acknowledged that the deportation was not executed with proper vigilance. In particular, they admitted that they should have anticipated the possibility that B. might not turn up and regretted not having done so. The Government nonetheless considered that the child ’ s family had no grounds for complaint in that respect, as it was the family, and in particular the first applicant, who were responsible for the situation.", "3. The Court ’ s assessment", "66. The Court will begin by examining the complaint concerning the second applicant ’ s rights and would state at the outset that it is struck by the failure to provide adequate preparation, supervision and safeguards for her deportation.", "For example, the Belgian authorities stood by their decision to proceed with the second applicant ’ s deportation on 17 October 2002 despite two new factual developments, these being the chambre du conseil ’ s decision of the previous day to order her immediate release on the grounds that her detention was unlawful and the fact that the UNHCR had informed the authorities that the first applicant had acquired refugee status in Canada.", "67. As regards the conditions in which the second applicant travelled, the Court notes that, although an assistant from the centre accompanied her as far as customs, the second applicant had to travel alone as the Belgian authorities had not assigned an adult to accompany her.", "As to the arrangements in her country of origin, the Belgian authorities merely informed her uncle B., who was the only relative they had managed to trace in Kinshasa, of her arrival, but did not expressly require his presence or make sure that he would be at the airport. The Court cannot, therefore, accept the Government ’ s submission that they were not responsible for the situation or for the fact that B. did not turn up. The Belgian authorities had not considered or made alternative arrangements for the second applicant ’ s arrival and it was only after several hours ’ wait at the airport that a solution – and a wholly improvised one at that – was found by the Congolese authorities.", "68. In the Court ’ s view, this shows that the Belgian authorities did not seek to ensure that the second applicant would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin. This view is not altered by the fact that the airline decided to assign an air hostess – an ordinary member of the flight crew – to look after her for the duration of the flight or that the second applicant was ultimately taken into the home of a representative of the Congolese authorities after an almost six-hour wait at the airport.", "69. The Court considers that the second applicant ’ s deportation in such conditions was bound to cause her extreme anxiety and demonstrated such a total lack of humanity towards someone of her age and in her situation as an unaccompanied minor as to amount to inhuman treatment. The Court also finds that, by deporting the second applicant, the Belgian State violated its positive obligations to take requisite measures and precautions.", "70. As regards the first applicant and in the light of the case-law it has cited in relation to the previous complaint (see paragraph 61 above), the Court notes in particular that the Belgian authorities did not trouble themselves to advise her of her daughter ’ s deportation so that she only became aware of it when she tried to reach her at the closed centre on the telephone after the deportation had already taken place. The Court has no doubt that this caused the first applicant deep anxiety. The disregard such conduct showed for her feelings and the evidence in the case file lead the Court to find that the requisite threshold of severity has been attained in the present case.", "71. It follows from the foregoing that there has been a violation of both applicants ’ rights under Article 3 of the Convention on account of the second applicant ’ s deportation.", "II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION", "72. The applicants complained that the second applicant ’ s detention and deportation also violated Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The second applicant ’ s detention", "1. The applicants ’ submissions", "73. The applicants submitted that the second applicant ’ s detention also violated Article 8 of the Convention as it constituted disproportionate interference with their right to respect for their private and family life. The Belgian State was or should have been aware of the first applicant ’ s refugee status in Canada because of the letters it had received from Mr Ma. and the UNHCR ’ s intervention. The applicants argued that family reunification was a fundamental right of refugees and cited, among other authorities, Recommendation 1327 (1997) of the Parliamentary Assembly of the Council of Europe on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe. In their submission, the obligations incumbent on States that were parties to the Convention on the Rights of the Child signed in New York on 20 November 1989 (and in particular, Articles 3 and 10 thereof) could be used as a guide when assessing whether the interference with the child ’ s family life had been necessary. The reasons given by the Government in no way justified the interference, which had consisted of the second applicant ’ s detention notwithstanding a proposal by her lawyer for her to be placed with foster parents. Her illegal entry was not a reason for denying her fundamental rights; nor did her inability to travel to the Netherlands prevent her placement with foster parents. Furthermore, although family reunification in Canada would have taken some time, there had been no need to keep the child in a closed centre. Nor could the fact that members of her family had been located in Kinshasa serve to justify her detention since she was the daughter of a person with recognised refugee status and her return to her country of origin placed her safety and even her life at risk. The fact that the first applicant had been granted refugee status in Canada should, furthermore, have alerted the Belgian authorities to the need to act with great caution. Lastly, while the applicants accepted that the first applicant had been wrong to ask her brother to bring her daughter to Europe, they said that she had done so in the belief that it was in her daughter ’ s best interests.", "2. The Government ’ s submissions", "74. The Government pointed out that, while Article 8 did in principle apply to cases concerning aliens, an alien ’ s family life had to be reconciled with the State ’ s prerogatives in immigration cases. The Court had consistently affirmed in its case-law the principle that the State Parties to the Convention were entitled to control the entry of non-nationals into their territory and that that prerogative, which could result in interference with the alien ’ s family life, had to be exercised in conformity with the second paragraph of Article 8. In the Government ’ s submission, keeping an alien in detention after he or she had attempted to enter the national territory without complying with the relevant conditions and had asked to be given refugee status while the application for asylum was considered could not in itself be considered to constitute a violation of his or her family life. Detention enabled the State to issue a deportation order that would be enforceable in practice in the event of the request for asylum being turned down. The Government accepted that it was legitimate to enquire whether these principles ought to be moderated when the immigrant concerned was a young child. However, they nevertheless considered that in the instant case there had been no infringement of the second applicant ’ s family life for several reasons:", "(i) on her arrival at the airport, her uncle had fraudulently tried to pass her off as his daughter;", "(ii) no members of the family lived in Belgium;", "(iii) according to the information that had been provided to the authorities, it would not have been legally possible for the second applicant to continue her journey to the Netherlands with her uncle;", "(iv) the first applicant had not made any application for family reunification at the material time;", "(v) certain members of the family whom it had been possible to locate in Kinshasa had been contacted personally and duly informed of the second applicant ’ s arrival in her country of origin – moreover, there was no doubt that she would be permitted to enter the country;", "(vi) the Belgian authorities were not informed that the first applicant had been granted refugee status until 18 October 2002, that is to say, until after the deportation order had been executed.", "The Government further questioned why between July 2001 and August 2002 the first applicant had not made an application to the Canadian authorities and / or to the Canadian embassy in Kinshasa with a view to arranging for her daughter ’ s lawful immigration, preferring instead to use an illegal route with her brother ’ s assistance. They said in conclusion that the second applicant ’ s detention in a closed centre during the period necessary for the examination of her request for asylum and her appeal under the expedited procedure and from then till 17 October 2002 did not amount to interference that was contrary to the Convention.", "3. The Court ’ s assessment", "75. The Court considers that, by its very essence, the tie between the second applicant, a minor child, and her mother – the first applicant – comes within the definition of family life within the meaning of Article 8 of the Convention ( see, among other authorities, Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290, and Hokkanen v. Finland, 23 September 1994, § 54, Series A no. 299-A), especially considering that in the instant case the first applicant had been granted refugee status, so that the interruption of family life was solely a result of her decision to flee her country of origin out of a genuine fear of persecution within the meaning of the Geneva Convention Relating to the Status of Refugees of 28 July 1951. The Government did not dispute the fact that the relationship between the applicants constituted family life and, in this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life ( see, mutatis mutandis, Olsson v. Sweden ( no. 1), 24 March 1988, § 59, Series A no. 130; Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156; and Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX).", "76. In the Court ’ s view, the second applicant ’ s detention amounted to interference with both applicants ’ rights under Article 8 of the Convention. Indeed, this was not disputed by the Government.", "77. The Court reiterates that an infringement of an individual ’ s right to respect for his or her private and family life will violate Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society”, in other words, proportionate to the pursued objectives. The question before the Court is whether the interference was justified under paragraph 2 of Article 8 of the Convention.", "78. The Court observes that the detention was based on section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 and was therefore in accordance with the law.", "79. The second defendant was detained under the authorities ’ powers to control the entry and residence of aliens on the territory of the Belgian State. The decision to detain could have been in the interests of national security or the economic well-being of the country or, just as equally, for the prevention of disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of the second paragraph of Article 8 of the Convention.", "80. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court will examine, in the light of the case as a whole, whether the detention was necessary in a democratic society, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued ( see Amrollahi v. Denmark, no. 56811/00, § 33, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 ‑ IX; Adam v. Germany (dec.), no. 43359/98, 4 October 2001; and Mokrani v. France, no. 52206/00, § 26, 15 July 2003). The Court ’ s task here is to determine whether the second applicant ’ s detention struck a fair balance between the competing interests in the case.", "81. The Convention does not guarantee, as such, any right for an alien to enter or stay on the territory of the State of which he or she is not a national ( see Moustaquim v. Belgium, 18 February 1991, § 43, Series A no. 193, and Beldjoudi v. France, 26 March 1992, § 74, Series A no. 234-A). Furthermore, the Contracting States are under a duty to maintain public order, in particular by exercising their right, as a matter of well-established international law, to control the entry and residence of aliens. In this connection, detention in centres used for aliens awaiting deportation will be acceptable only where it is intended to enable the States to combat illegal immigration while at the same time complying with their international obligations, including those arising under the European Convention on Human Rights and the Convention on the Rights of the Child ( ratified by Belgium in 1991).", "Furthermore, the States ’ interest in foiling attempts to circumvent immigration rules must not deprive aliens of the protection afforded by these conventions or deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State ’ s immigration policy must therefore be reconciled.", "82. The Court observes that the effect of the second applicant ’ s detention was to separate her from the member of her family in whose care she had been placed and who was responsible for her welfare, with the result that she became an unaccompanied foreign minor, a category in respect of which there was a legal void at the time. Her detention significantly delayed the applicants ’ reunification. The Court further notes that, far from assisting her reunification with her mother, the authorities ’ actions in fact hindered it. Having been informed at the outset that the first applicant was in Canada, the Belgian authorities should have made detailed enquiries of their Canadian counterparts in order to clarify the position and bring about the reunification of mother and daughter. The Court considers that that duty became more pressing from 16 October 2002 onwards, that being the date when the Belgian authorities received the fax from the UNHCR contradicting the information they had previously held.", "83. The Court considers that the complaint can also be analysed from the perspective of the second applicant ’ s private life. It has often said that the expression “private life” is broad and does not lend itself to exhaustive definition. Thus, private life, in the Court ’ s view, includes a person ’ s physical and mental integrity. The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ( see, mutatis mutandis, Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B; Botta v. Italy, 24 February 1998, § 32, Reports 1998-I; and Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 -VI ).", "In this connection, in the absence of any risk of the second applicant ’ s seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults was unnecessary. Other measures could have been taken that would have been more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child. These included her placement in a specialised centre or with foster parents. Indeed, these alternatives had in fact been proposed by the second applicant ’ s counsel.", "84. The Court considers that, in view of her young age, the second applicant cannot bear any responsibility for her uncle ’ s attempts to deceive the Belgian authorities by passing her off as his daughter. The same applies to the conduct of her mother and family. Further, although the first applicant ’ s conduct was questionable and does not appear to have been entirely fault-free, it was not such as to deprive her of victim status in the instant case.", "85. Ultimately, since the second applicant was an unaccompanied foreign minor, the Belgian State was under an obligation to facilitate the family ’ s reunification ( see, mutatis mutandis, Johansen v. Norway, 7 August 1996, § 78, Reports 1996 ‑ III; Eriksson, cited above, § 71; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000 ‑ VIII ).", "86. In the light of all the foregoing considerations, the Court finds that there has been disproportionate interference with the applicants ’ right to respect for their family life.", "87. There has therefore been a violation of Article 8 of the Convention.", "B. The second applicant ’ s deportation", "1. The applicants ’ submissions", "88. The applicants relied on the arguments they had used with respect to the complaint under Article 3 of the Convention.", "2. The Government ’ s submissions", "89. The Government argued that it had to be remembered that the first applicant had sought to deceive the Belgian authorities with her brother ’ s help. Her brother had clearly stated to the Belgian authorities that it was not his intention to look after his niece, as he did not wish to have problems with the Dutch authorities. The first applicant could have used her refugee papers or her Congolese passport, which had been issued on 27 September 2002, to travel. Moreover, her request to the Canadian authorities for asylum did not extend to the second applicant and between July 2001 and August 2002 she had not taken any action with a view to family reunification. The enquiries that had been made had revealed that she had members of her family living in Kinshasa. Lastly, the second applicant ’ s return to her country of origin had been organised in such a way that a Congolese official representative had been there to accommodate her when her family failed to meet her in Kinshasa.", "3. The Court ’ s assessment", "90. The Court does not consider it necessary to recapitulate the circumstances in which the deportation took place, as these have already been described above (see paragraphs 66 et seq.). It reiterates that the Belgian State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants ’ reunification (see paragraph 85 above). By deporting the second applicant, the authorities did not assist their reunification (see paragraph 82 above). Nor did they ensure that the second applicant would in fact be looked after in Kinshasa ( see paragraph 67 above). In these circumstances, the Court considers that the Belgian State failed to comply with its positive obligations and interfered with the applicants ’ right to respect for their family life to a disproportionate degree.", "91. There has therefore been a violation of both applicants ’ rights under Article 8 of the Convention as a result of the second applicant ’ s deportation.", "III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AS A RESULT OF THE SECOND APPLICANT ’ S DETENTION", "92. The applicants also argued that the second applicant ’ s detention violated Article 5 § 1 ( d) of the Convention, which provides :", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ”", "A. The applicants ’ submissions", "93. In the applicants ’ submission, the second applicant ’ s detention did not serve the purpose set out in paragraph ( d) of Article 5, which was the only provision that permitted the detention of a minor. The sole aim of the detention in the present case had been to prevent the second applicant from entering Belgium and to facilitate her subsequent deportation to her country of origin. The applicants argued in the alternative that were the Court to consider that the word “person” referred to in Article 5 § 1 ( f) of the Convention included minors, the child ’ s age and minority would nevertheless remain an important factor in assessing the lawfulness of the detention. In other words, when a minor was detained, a stricter review would be required, in accordance with the Convention on the Rights of the Child. In such cases, the Government would have to be able to prove that the detention was in the child ’ s interest. In the second applicant ’ s case, there had been no need for the detention. Alternatives had been available such as permitting her to enter the country and stay with foster parents under the supervision of the Aid to Younger People in the French Community Department. Furthermore, the second applicant ’ s deportation could not be regarded as release from detention and so was in breach of the chambre du conseil ’ s order of 16 October 2002. The applicants added that Crown Counsel had, in fact, had only one aim when he decided to defer his appeal against the order for the second applicant ’ s release and that was to facilitate her removal by the Government. They said that proof of this was to be found in the letter from the Aliens Office dated 15 October 2002. It followed that the second applicant ’ s detention subsequent to the order of 16 October 2002 was unlawful, its sole purpose being to allow her deportation before the order for her release became final.", "B. The Government ’ s submissions", "94. The basis for the detention of a foreign minor in Belgian law was to be found in section 74 / 5 of the Law of 15 December 1980, which made no distinction between aliens who had reached their majority and those who were still minors. There could be no one single answer to the question whether the detention of a foreign minor was lawful : the minor ’ s age and the particular difficulties with which the Belgian authorities were confronted were essential criteria for deciding on the best solution for the child. In any event, it would be hazardous to work on the premise that if a child was very young, it could “as it were serve as a safe conduct for third parties”, which was the situation that was in danger of arising if a rule was established prohibiting the detention of minors. The detention of a minor was, furthermore, consistent with the provisions of Article 5 § 1 ( f) of the Convention. As regards more specifically the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, while it was true that that court had ruled that the second applicant ’ s continued detention in Transit Centre no. 127 was unlawful and had ordered her release, Crown Counsel had a right under section 72 of the Law of 15 December 1980 to appeal within twenty-four hours of the date of the decision. It was only on the expiration of that period that the order became final (in accordance with section 73 of the Act) and the alien had to be released. In the present case, the order of 16 October 2002 had not become final until midnight on 17 October 2002 and it was only at that point, once the time - limit for appealing had expired, that the second applicant had to be released. The Government said that it followed from this that the second applicant ’ s continued detention until 17 October 2002 – when she was taken to the airport to be put on the plane to Kinshasa – complied with the provisions of domestic law. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention had ended when the deportation order was executed.", "C. The Court ’ s assessment", "95. The Court notes at the outset that the first applicant has not been detained and accordingly cannot claim personally to have been a victim of a violation of Article 5 of the Convention.", "96. In so far as this complaint concerns the second applicant, the Court reiterates that the Contracting States are entitled to control the entry and residence of non-nationals on their territory at their discretion, but stresses that this right must be exercised in conformity with the provisions of the Convention, including Article 5. In proclaiming the right to liberty, paragraph 1 of Article 5 contemplates the physical liberty of the person and its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion ( see, mutatis mutandis, Amuur, cited above, § 42). The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision ( see, mutatis mutandis, K. ‑ F. v. Germany, 27 November 1997, § 70, Reports 1997 ‑ VII; Čonka v. Belgium, no. 51564/99, § 42, ECHR 2002-I; and D.G. v. Ireland, no. 39474/98, § 74, ECHR 2002-III). Detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5 which is to protect an individual from arbitrariness ( see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114).", "97. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, the Court must assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that a national law authorising deprivation of liberty must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness.", "98. As regards the compatibility of the detention with domestic law in the instant case, the Court considers that two periods can be distinguished, these being the period prior to the order of 16 October 2002 in which the chambre du conseil declared the second applicant ’ s detention unlawful and the period after that date. It observes that the Government have not sought to argue that the chambre du conseil ’ s ruling that the detention was illegal affected the second applicant ’ s victim status. In any event, it notes that the ruling did not bring the detention to an end. In the Court ’ s view, the finding by the domestic court that the first period of detention was unlawful raises serious doubts as to the lawfulness of the second period.", "99. The second applicant was placed in detention pursuant to section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, initially pending a decision on her application for asylum and subsequently pending her deportation. At that time, the Act did not contain any provisions specific to minors. Thus, the fact that the alien concerned was a minor was of no relevance to the application of the provisions governing his or her detention.", "100. The Court does not agree with the second applicant ’ s submission that paragraph ( d) of Article 5 § 1 of the Convention is the only provision which permits the detention of a minor. It in fact contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or for the purpose of bringing them before the competent legal authority to decide.", "101. In the instant case, the ground for the second applicant ’ s detention was that she had entered the country illegally as she did not have the necessary documents. Her detention therefore came within paragraph ( f) of Article 5 § 1 of the Convention which permits “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”.", "102. However, the fact that the second applicant ’ s detention came within paragraph ( f) of Article 5 § 1 does not necessarily mean that it was lawful within the meaning of this provision, as the Court ’ s case - law requires that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention ( see, mutatis mutandis, Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references ).", "103. The Court notes that the second applicant was detained in a closed centre intended for illegal immigrants in the same conditions as adults; these conditions were consequently not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor.", "104. In these circumstances, the Court considers that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the second applicant ’ s right to liberty.", "105. There has therefore been a violation of the second applicant ’ s rights under Article 5 § 1 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLES 5 § 4 AND 13 OF THE CONVENTION", "106. Relying on Articles 5 § 4 and 13 of the Convention, the applicants maintained that the Belgian State had rendered the second applicant ’ s appeal futile and ineffective by proceeding to deport her the day after her release was ordered, in defiance of that order. Article 5 § 4 provides :", "Article 5 § 4", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "Article 13 reads as follows :", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The applicants ’ submissions", "107. The applicants alleged that prolonging the second applicant ’ s detention and then proceeding to deport her following an order by the chambre du conseil for her immediate release was contrary to the Convention and rendered the remedy ineffective. In their submission, even assuming that detention could be prolonged in order to enable Crown Counsel to appeal against the order within twenty-four hours, detention could only be used for that purpose and not as a means to deport the alien within that period. Furthermore, once the alien had been deported, the powers of review of the chambre du conseil and the indictments division became redundant, even though deportation did not amount to release. They concluded from the above that they had not had an effective remedy in respect of the second applicant ’ s detention.", "B. The Government ’ s submissions", "108. The Government maintained that the right of appeal to the chambre du conseil was an effective remedy within the meaning of the Convention. The chambre du conseil ’ s review concerned both the detention and the deportation order on which it was based. Referring specifically to the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, the Government argued that their observations on the issue of the lawfulness of the second applicant ’ s detention showed that its extension until 17 October 2002 was lawful. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention ended when the deportation order was executed.", "C. The Court ’ s assessment", "109. The Court has already found that since the first applicant was not detained she could not personally claim to have been a victim of a violation of Article 5 of the Convention (see paragraph 95 above).", "110. In so far as this complaint is also made by the second applicant, the Court refers firstly to its case-law holding that a complaint under Article 13 will be absorbed by a complaint under Article 5 § 4 since the requirements of Article 13 are less strict than those of Article 5 § 4, which must be regarded as the lex specialis for Article 5 grievances ( see Chahal v. the United Kingdom, 15 November 1996, § 126, Reports 1996-V ).", "111. The Court will therefore examine the complaint solely under Article 5 § 4 of the Convention.", "112. The purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected ( see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release ( see, mutatis mutandis, Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003 ‑ X ).", "113. The Court notes that the Belgian authorities made arrangements for the second applicant ’ s deportation on the day after she lodged an application to the chambre du conseil for release, that is to say, even before it had delivered its decision. Furthermore, the authorities did not at any stage reconsider the decision to deport her. The Court also notes that the second applicant was deported on the scheduled date, notwithstanding the fact that the twenty-four-hour period for an appeal by Crown Counsel, during which a stay applied, had not expired. Crown Counsel deliberately chose to reserve his decision after receiving a letter from the Belgian authorities informing him of their view that the second applicant should remain in detention so that she could be deported to Kinshasa. Lastly, the Government have acknowledged that the Belgian authorities ’ conduct was not dictated by the chambre du conseil ’ s decision to grant the application for release as her deportation had been arranged in advance.", "Even assuming that the second applicant ’ s deportation can be equated to “release” for the purposes of Article 5 § 4 of the Convention, it follows from the foregoing considerations that there was no link between her deportation and the exercise of the remedy or the fact that it was granted.", "In these circumstances, the Court finds that the second applicant ’ s appeal to the chambre du conseil appears, in the circumstances of the case, to have been ineffective.", "114. There has therefore been a violation of Article 5 § 4 of the Convention. The Court does not consider that any separate examination of the complaint under Article 13 of the Convention is necessary.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "115. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "116. The applicants said that they had sustained non-pecuniary damage which they put at 10, 000 euros (EUR) for the first applicant and EUR 25, 000 for the second.", "117. The Government observed that the first applicant had only requested family reunification after her daughter ’ s deportation and arrival in Canada (on 29 October 2002) and said that the first applicant ’ s role in the case had not been clearly established. Either she had been unaware that her daughter had left Kinshasa, in which case it had been on her brother ’ s initiative and it was to him and not the Government that she should address her grievances, or she herself had been the instigator, in which case she ought not to be awarded anything because she had knowingly broken the law. In the light of these considerations, the Government submitted that the finding of a violation would afford adequate compensation for the non-pecuniary damage sustained by the first applicant. They left the issue of the non-pecuniary damage sustained by the second applicant to the Court ’ s discretion whilst pointing out that they had sought to defend her interests as best they could in what, to say the least, had been a complex situation.", "118. In the light of the various violations it has found, including the violation of both the first and second applicant ’ s rights under Article 3, which, as has been noted, confers absolute protection ( see Soering, cited above, § 88), the Court considers the sums claimed by each of the applicants reasonable and awards them the amounts by way of just satisfaction.", "B. Costs and expenses", "119. The applicants, who have produced detailed fee notes, claimed EUR 14, 177. 04 for costs and expenses. This amount was broken down into EUR 10, 500 for the fees and expenses of Mr Vanheule, EUR 3, 042 for the fees and expenses of Mr Ma., EUR 141 for the fees of a Canadian lawyer, Mr A., in connection with family reunification in Canada in 2002, EUR 35 for the costs of a visa to enable the first applicant to attend the hearing before the Court and EUR 459. 04 in travel expenses.", "120. The Government referred to the principles established by the Court and submitted that it should disallow the fees and expenses of Mr A., and at least part of the fees and expenses of Mr Ma. It left the remainder of the claim to the Court ’ s discretion.", "121. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy ( just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).", "The Court notes that the Government have not contested Mr Vanheule ’ s fees or the first applicant ’ s claim in respect of the cost of her visa and travel expenses. It considers that the action taken by Mr Ma. was intended to prevent the violation it has found to have occurred and that the amount claimed in respect thereof is reasonable. Consequently, it awards the applicants the sum of EUR 14, 036 for costs and expenses, less the amount which the Council of Europe has granted in legal aid.", "C. Default interest", "122. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1996 and 1995 respectively. At the time of the introduction of the application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta.", "A. Background to the case", "1. Mr Burhaan Abdullahi Elmi (the first applicant)", "6. Mr Burhaan Abdullahi Elmi entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12U-029). During the registration process the immigration authorities asked the applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1996 and therefore was sixteen years old. The Government claimed that he was seventeen years old. Although no interpreter was present the applicant was helped by some other irregular immigrants who had arrived with him and who could speak English.", "7. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the first applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant ’ s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.", "8. The first applicant claimed that the contents of the decision in English were not explained to him, and that he could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.", "9. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the first applicant did not request a booklet in another language.", "10. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the first applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks, and in 2013 was moved to Block B.", "2. Mr Cabdulaahi Aweys Abubakar (the second applicant)", "11. Mr Cabdulaahi Aweys Abubakar entered Malta in an irregular manner by boat on 31 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12W-062). During the registration process the immigration authorities asked the second applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1995 and therefore was seventeen years old.", "12. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds” and “without leave granted by the principal Immigration Officer”. The Return Decision also informed the second applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant ’ s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.", "13. The second applicant claimed that the contents of the decision in English were not explained to him, and that he could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.", "14. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the second applicant did not request a booklet in another language.", "15. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the second applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks and in January 2013 was moved to Block B.", "B. Asylum proceedings", "1. Mr Burhaan Abdullahi Elmi", "16. A few days following Mr Burhaan Abdullahi Elmi ’ s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering his wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law, below). He stated on the form that he was sixteen years old.", "2. Mr Cabdulaahi Aweys Abubakar", "17. A few days following Mr Cabdulaahi Aweys Abubakar ’ s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the PQ, thereby registering his wish to apply for asylum. He stated on the form that he was born in 1995 and was seventeen years old.", "C. The AWAS Age-Assessment Procedure", "1. Mr Burhaan Abdullahi Elmi", "18. In Mr Burhaan Abdullahi Elmi ’ s case, on 31 August 2012 he was referred to AWAS for age assessment. Within a few weeks of his arrival, three people from AWAS interviewed him. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a further age verification (FAV) test ‑ this would be an X -ray of the bones of the wrist. He was taken for the FAV test shortly after his interview. The first applicant claimed that, some weeks later, in or around October 2012, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.", "19. Until the date of the lodging of the application, that is eight months after his arrival in Malta, Mr Burhaan Abdullahi Elmi had not received a written decision informing him of the outcome of the age ‑ assessment procedure, and was still in detention.", "2. Mr Cabdulaahi Aweys Abubakar", "20. In Mr Cabdulaahi Aweys Abubakar ’ s case, on 18 September 2012 he was referred to AWAS for age assessment. He was interviewed by three people from AWAS in the third week of September 2012. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a FAV test. He was taken for the FAV test on 8 February 2013, five months after his interview with AWAS. The second applicant claimed that, some weeks later, in March 2013, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.", "21. Until the date of the lodging of the application, that is almost eight months after his arrival in Malta, Mr Cabdulaahi Aweys Abubakar had not received a written decision informing him of the outcome of the age ‑ assessment procedure, and was still in detention.", "22. In the meantime both Mr Cabdulaahi Aweys Abubakar and members of the Jesuit Refugee Service who visited him in detention contacted AWAS on a number of occasions to inquire about the case, but no reply was forthcoming.", "D. Conditions of detention", "1. Mr Burhaan Abdullahi Elmi", "23. Mr Burhaan Abdullahi Elmi claims to have been held in very difficult conditions of detention with adult men of various nationalities. In Warehouse 2 and Block B, of Safi Detention Centre, physical conditions were basic and he often lacked the most basic necessities, including clothing, particularly shoes, which were only replaced every four months. Recreational activity was limited, and the yard was taken over by adult males, making it difficult for a young person like him to play with them. Educational activities were virtually non-existent. There was a lack of information, difficulties communicating with the outside world, and obstacles in obtaining the most basic services. Moreover, the centre was overcrowded and lacked protection from abuse and victimisation. Fights often broke out between men of different origins, nationalities or tribes, and he also referred to an episode where he had been beaten up by a fellow detainee. Noting there was no privacy or security, Mr Burhaan Abdullahi Elmi stressed that he felt very insecure in detention, and that his food was often stolen by detainees as was his blanket. He explained that Warehouse 2 was worse than Block B, it was like a big hall of people, hundreds of people, and he had a bunk bed in this big warehouse. He considered that the conditions in Warehouse 2 were very similar to those in Warehouse 1, which had been documented in a number of reports, including two CPT reports of 2007 and 2011. The first applicant also stated that he had difficulty communicating with a doctor in the absence of an interpreter and that he suffered from dizziness and eye problems.", "2. Mr Cabdulaahi Aweys Abubakar", "24. Mr Cabdulaahi Aweys Abubakar ’ s narration about the conditions of detention in Warehouse 2 and Block B are similar to those referred to by the first applicant. Mr Cabdulaahi Aweys Abubakar also noted that in the first two weeks of his detention he had had stomach pains, but no doctor was available, nor was an ambulance called. He alleged that he had headaches and rashes on his scalp; however, the detention authorities would not provide him with the shampoo prescribed by the doctor. He noted that in October 2012 the detention authorities had not taken him to a hospital appointment; it had had to be rescheduled to March 2013. On that date, the doctor prescribed medication, however, up to the date of the introduction of the application (17 April 2013) this had not been forthcoming. He also referred to an incident in which he had been beaten up by a fellow detainee who had allegedly also previously attacked another detainee with a knife. He noted that when he arrived in detention he was given two bed sheets, a blanket, a T-shirt, and two pairs of underwear, but no shoes, not even flip ‑ flops. The second applicant further explained that they were fed chicken every day and that he was unable to keep in touch with his relatives, as the five - euro phone card distributed to them every two months only allowed four minutes of talk time to Somalia.", "E. Latest developments", "1. Mr Burhaan Abdullahi Elmi", "25. The Government informed the Court that following the lodging of the application with the Court, on 19 April 2013 Mr Burhaan Abdullahi Elmi was released from detention under a care order and placed in an open centre for unaccompanied minors. He subsequently left Malta before the termination of his asylum proceedings; indeed the last day of registration at the open centre was 2 August 2013. In the absence of any further contact with the Office of the Refugee Commissioner, on 31 August 2013 the applicant ’ s asylum claim was implicitly “ withdrawn as discontinued ”.", "26. It appears that the first applicant absconded and went to Germany and was held by the German authorities, who in turn requested the Maltese authorities to take him back in terms of the Dublin Regulation. Following the acceptance of that request on 7 May 2014 the Maltese authorities were informed by the German authorities that return was suspended pending proceedings in Germany.", "27. In a signed declaration sent to the Court by his legal representatives the first applicant admitted to being in Schonbach, Germany, as he was waiting there for the outcome of the judicial proceedings as to whether he would be sent back to Malta in terms of the Dublin II Regulation to have his asylum claim determined.", "2. Mr Cabdulaahi Aweys Abubakar", "28. The Government informed the Court that following the lodging of the application with the Court, on 24 April 2013 Mr Cabdulaahi Aweys Abubakar was released from detention under a care order and placed in an open centre for unaccompanied minors. He was granted subsidiary protection on 14 September 2013." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Immigration Act and the Refugees Act", "29. The relevant articles of the above - mentioned Acts can be found in Aden Ahmed v. Malta (no. 55352/12, §§ 31-35, 23 July 2013).", "B. Government Policy", "30. According to the Irregular Immigrants, Refugees and Integration Policy Document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005:", "“ Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”.", "31. The document contains an inclusive list of those categories of migrants considered vulnerable, which includes: “unaccompanied minors, persons with disability, families and pregnant women”. With specific reference to unaccompanied minors and age assessment, the policy document states that:", "“Unaccompanied children and minors will be placed under state custody in terms of the Children and Young Persons (Care Order) Act (Chapter 285). This ensures that an unaccompanied minor is given the same treatment as a Maltese minor. ... The detention of minors should be no longer than what is absolutely necessary to determine their identification and health status. Interviews are to be carried in a ‘ child friendly ’ manner.", "Unfortunately there will be cases where individuals make false claims about their age in order to benefit from the terms and conditions of a Care Order. In order to ensure, as far as possible, that:", "(a) Care Orders are only issued in respect of true minors;", "(b) provisions for minors are not abused, and", "(c) actual minors are not deprived of the accommodation and services to which they are entitled by virtue of their age and the degree of vulnerability associated with it, Ministry for Justice and Home Affairs in consultation with the Ministry for the Family and Social Solidarity shall, in those cases where there is good reason to suspect the veracity of the minority age claimed by the immigrant, require the individual concerned to undertake an age verification test as soon as possible after arrival”.", "C. The Age- Assessment Procedure", "32. In order to give effect to this policy, a procedure known as the Age ‑ Assessment Procedure was developed and implemented first by the Refugee Service Area within Aġenzija Appoġġ ( the National Agency for children, families and the community) and later by AWAS (formerly OIWAS), with a view to assessing claims to minor age. Although AWAS is not formally charged with the responsibility for this procedure by the law which constitutes it (see below) in practice the said agency has full responsibility for this procedure.", "33. In practice, from the information available, it appears that the Age ‑ Assessment Procedure consisted of a number of different phases. Individuals were referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Immigration Police (where they declare to be minors on arrival) or the Refugee Commissioner (where they declare to be minors in their PQ). Following referral, an initial interview is conducted by one member of AWAS staff. Where this interview is inconclusive, a second interview is conducted by a panel of three persons known as the Age ‑ Assessment Team (AAT).", "34. Where the panel is convinced that the individual concerned is not a minor, the minority age claim is rejected. Where a doubt remains, s/he is referred for a Further Age Verification (FAV) test, which essentially consists of an X-ray of the bones of the wrist. Although the AAT is not bound by the results of the test, in practice, it would appear that in most cases where it is resorted to the result will determine the outcome of the assessment.", "35. If the individual concerned is found to be a minor, a care order is issued, the individual is released from detention and placed in an appropriate non-custodial residential facility, and a legal guardian is appointed to represent the minor. Once a guardian is appointed the asylum interview is carried out, and during the said interview the minor is assisted by a legal guardian. If the individual ’ s claim to minor age is rejected, AWAS informs the Refugee Commissioner so that his office can proceed with the refugee status determination procedure.", "36. In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows:", "“(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers.", "(2) In the performance of its functions, the Agency shall:", "(a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements;", "(b) provide particular services to categories of persons identified as vulnerable according to current policies;", "(c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes;", "(d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible;", "(e) promote the Government ’ s policy and schemes regarding resettlement and assisted voluntary returns;", "(f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies;", "(g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users;", "(h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research;", "(i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and", "(j) implement such other duties as may be assigned to it by the Minister or his representative.”", "37. Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 ‑ Legal Notice 243 of 2008, as applicable at the time of the present case (prior to amendments in 2014) laid down some basic procedural safeguards applicable when minors are interviewed, including the provision of information about the asylum procedure, assistance with preparation for the interview and presence of the representative during the interview. Its paragraph (2) dealt with the use of medical procedures to determine age within the context of an application for asylum. In so far as relevant it read as follows:", "“(1) In relation to an unaccompanied minor falling within the provisions of article 13(3) of the Act, as soon as possible, and not later than thirty days from the issue of the care order under that article:", "(a) it shall be ensured that the appointed representative of the unaccompanied minor is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself for the personal interview. The representative shall be present at the interview and may ask questions or make comments within the framework set by the person who conducts the interview;", "(b) where an unaccompanied minor has a personal interview on his application for asylum, that interview is to be conducted and the decision prepared by a person who has the necessary knowledge of the special needs of minors.", "(2) Medical examinations to determine the age of unaccompanied minors within the framework of any possible application for asylum may be carried out.", "Provided that:", "(a) unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination which may include the rejection of his claim that he is a minor;", "(b) unaccompanied minors and their representatives consent to carry out the determination of the age of the minors concerned;", "(c) the decision to reject an application from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal:", "Provided that an unaccompanied minor who has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum and that the best interests of the minor shall be a primary consideration in any such decision.”", "38. Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06 – Legal Notice 320 of 2005, states that:", "“an unaccompanied minor aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”.", "D. Other Relevant Subsidiary Legislation", "39. Part IV of Subsidiary Legislation 217.12, Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Legal Notice 81 of 2011 ( Transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member States for returning illegally staying third-country nationals, aka the Return Directive) in so far as relevant, is set out in Aden Ahmed (cited above, §§ 31-35).", "III. RELEVANT INTERNATIONAL TEXTS", "40. Under European Union law, in particular Article 24 of The Reception Conditions Directive provides guidance on the type of accommodation to be provided to unaccompanied minors, which must be with adult relatives, with a foster family, in reception centres with special provisions for minors, or in other suitable accommodation. Detention of unaccompanied minors is not fully prohibited but is only allowed in exceptional circumstances and never in prison accommodation (Article 11 (3) of the Recast Directive). The directive considers that a ‘ minor ’ means a third-country national or stateless person below the age of 18 years; it also notes that applicants aged sixteen and over, but under the age of eighteen and therefore still minors, may be placed in accommodation centres for adult asylum seekers, but only if it is in the best interests of the child [1].", "41. In so far as relevant the United Nations Convention on the Rights of the Child, of 20 November 1989, ratified by Malta in 1990, reads as follows:", "Article 1", "“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”", "Article 2", "“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child ’ s or his or her parent ’ s or legal guardian ’ s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.", "2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child ’ s parents, legal guardians, or family members.”", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”", "Article 37", "“States Parties shall ensure that:", "(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;", "(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;", "(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;", "(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”", "42. In Recommendation Rec(2003)5 of the Committee of Ministers of the Council of Europe, to member States, on measures of detention of asylum seekers, adopted by the Committee of Ministers on 16 April 2003 at the 837th meeting of the Ministers ’ Deputies, the Committee of Ministers recommended, in particular in respect of minors, that:", "“ 20. As a rule, minors should not be detained unless as a measure of last resort and for the shortest possible time.", "21. Minors should not be separated from their parents against their will, nor from other adults responsible for them whether by law or custom.", "22. If minors are detained, they must not be held under prison-like conditions. Every effort must be made to release them from detention as quickly as possible and place them in other accommodation. If this proves impossible, special arrangements must be made which are suitable for children and their families.", "23. For unaccompanied minor asylum seekers, alternative and non-custodial care arrangements, such as residential homes or foster placements, should be arranged and, where provided for by national legislation, legal guardians should be appointed, within the shortest possible time.”", "43. In Recommendation 1985 (2011) of the Parliamentary Assembly of the Council of Europe, of 7 October 2011, entitled “Undocumented migrant children in an irregular situation: a real cause for concern”, the Parliamentary assembly considered that undocumented migrant children are triply vulnerable: as migrants, as persons in an undocumented situation and as children. They recommended that member States refrain from detaining undocumented migrant children, and protect their liberty by abiding by the following principles:", "“9.4.1. a child should, in principle, never be detained. Where there is any consideration to detain a child, the best interest of the child should always come first;", "9.4.2. in exceptional cases where detention is necessary, it should be provided for by law, with all relevant legal protection and effective judicial review remedies, and only after alternatives to detention have been considered;", "9.4.3. if detained, the period must be for the shortest possible period of time and the facilities must be suited to the age of the child; relevant activities and educational support must also be available;", "9.4.4. if detention does take place, it must be in separate facilities from those for adults, or in facilities meant to accommodate children with their parents or other family members, and the child should not be separated from a parent, except in exceptional circumstances;", "9.4.5. unaccompanied children should, however, never be detained;", "9.4.6. no child should be deprived of his or her liberty solely because of his or her migration status, and never as a punitive measure;", "9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child;”", "44. Prior to the above recommendation, in Resolution 1707 (2010) 28 January 2010, the Parliamentary Assembly, called on member states of the Council of Europe in which asylum seekers and irregular migrants are detained to comply fully with their obligations under international human rights and refugee law, and encouraged them to abide by a number of guiding principles, inter alia, that vulnerable people should not, as a rule, be placed in detention and specifically that unaccompanied minors should never be detained.", "IV. RELEVANT MATERIALS", "45. The Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe following his visit to Malta from 23 to 25 March 2011, 9 June 2011, paragraphs 19-20, reads as follows;", "“19. At the end of their detention, migrants, including refugees, beneficiaries of subsidiary protection, asylum seekers and persons whose asylum claims have been rejected, are accommodated in open centres around Malta. Conditions prevailing in these centres vary greatly, with adequate arrangements reported in the smaller centres that cater for some vulnerable groups, such as families with children or unaccompanied minors, and far more difficult conditions in the bigger centres. As mentioned above, when the Commissioner ’ s visit took place the number of irregular arrivals had been very low for over 18 months and the 2011 arrivals from Libya had not yet started. As a result, the vast majority of migrants had moved out of the detention centres and were living in open centres, with the respective populations numbering at 49 and 2 231 respectively. The Commissioner visited the detention centre in Safi, and three open centres - the Hal-Far tent village, the Hangar Open Centre in Hal-Far and Marsa.", "20. At the time of the visit the material conditions in the Safi detention centre, where all 49 of the migrant detainees were kept, appeared to be considerably better than those in open centres. Although a number of issues remained to be addressed, including those regarding the detainees ’ access to a diversified diet and water other than from the tap, the premises visited, including the dormitories, toilets and showers had been recently refurbished. The only female detainee of the centre was accommodated in a separate facility. The Commissioner wishes to note however, that in accordance with the mandatory detention policy referred to above, most of the persons (approximately 1 100) who have arrived from Libya since his visit have been placed in detention centres. This is naturally bound to have a significant impact on the adequacy of the conditions in these centres.”", "46. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT) from 19 to 26 May 2008, 17 February 2011), in so far as relevant reads as follows:", "“52. In accordance with Maltese policy on administrative detention of foreigners under aliens ’ legislation, all foreigners arriving illegally in Malta are still detained for prolonged periods, in the case of asylum seekers until such time as their request for refugee status is determined (normally 12 months) and for irregular immigrants for up to a maximum of 18 months. In practice, however, some may spend even longer periods in detention. The only declared exceptions to this general rule concern persons deemed to be vulnerable because of their age and/or physical condition, unaccompanied minors and pregnant women ...", "53. The situation found in the detention centres visited by the delegation had not substantially improved since the CPT ’ s previous visit in 2005. Indeed, many of the problems identified in the report on that visit still remain unresolved. In several parts of the detention centres, the combined effects of prolonged periods of detention in poor, if not very poor, material conditions, with a total absence of purposeful activities, not to mention other factors, could well be considered to amount to inhuman and degrading treatment.", "material conditions", "...", "60. At Safi Barracks Detention Centre, which at the time of the visit accommodated a total of 507 immigration detainees, living conditions for detainees had slightly improved in comparison to the situation observed by the CPT in 2005.", "At Warehouse No. 1, living conditions were less cramped than when last visited by the CPT, and the toilet facilities were new and clean. That said, the Committee has strong reservations as regards the use of converted warehouses to accommodate detainees. This should only be seen as a temporary - and short term - solution.", "B Block has been refurbished since the CPT ’ s last visit. The sanitary facilities have been renovated and a large exercise area is at the disposal of the immigration detainees. However, conditions were still difficult in certain rooms, where immigration detainees were sleeping on mattresses on the floor.", "Surprisingly, poor conditions of detention were observed in the new C Block. Living conditions were cramped, access to natural light was insufficient and ventilation very poor. Further, access to running water was limited, as well as access to hot water, the latter being unavailable for prolonged periods.", "In addition, the internal regulation in force at Safi Barracks provided for the compulsory closing of the doors in B and C Blocks every afternoon at 5 p.m., thereby preventing access to the outdoor yard. This exacerbated significantly the already far from ideal living conditions in these blocks.”", "47. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Safi barracks, reads as follows:", "“44. At the time of the visit, Safi Detention Centre was accommodating a total of 506 male adult detainees (236 in Warehouse No. 1, 113 in Warehouse No. 2 and 124 in Block B).", "In keeping with the Government ’ s Detention Policy, no unaccompanied minors were held in either of the two detention centres visited. Upon issuance of a care order by the Minister of Social Policy, unaccompanied minors were always transferred to a juvenile institution. Single women were always accommodated separately from male detainees.", "...", "48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre). The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly.", "...", "55. At both [ Lyster and ] Safi Detention Centres, material conditions have improved since the 2008 visit. ... At Safi Barracks, additional renovation work had been carried out in Block B. It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear.", "However, material conditions of detention were still appalling in the two Warehouses at Safi Barracks. In particular, at Warehouse No. 1, foreign nationals were being held in extremely crowded conditions and the sanitary facilities consisting of seven mobile toilets (without a flush) and seven mobile shower booths, located in the outdoor exercise yard, were in a deplorable state. In fact, the Warehouses are not suitable for accommodating persons for prolonged periods, but should only be used in the event of an emergency.", "The CPT recommends that the Maltese authorities take the necessary measures to ensure that all immigration detainees currently being held in the two Warehouses at Safi Barracks are transferred as soon as possible to Ta ’ Kandja Detention Centre and that both Warehouses are in future only used for short ‑ term detention in emergency situations.", "...", "57. At Safi Detention Centre, conditions of detention in the two warehouses were further exacerbated by the total lack of any organised activities. The situation was slightly better, but far from satisfactory in Block B, where detainees could play football in the exercise yard (surrounded by high walls), which was accessible from 8.30 a.m. to 7 p.m.", "The CPT calls upon the Maltese authorities to introduce a regime providing purposeful activities to foreign nationals held at Safi [ and Ta ’ Kandja Detention ] Centres.", "...", "58. Medical and nursing services in detention centres for foreigners were provided by two separate privately-run companies. There was a pool of doctors ensuring the presence of one doctor from Mondays to Fridays (including public holidays), for five hours per day at Safi [and four hours per day at Lyster Barracks]. Further, a nurse was present in each detention centre from Mondays to Fridays from 8 a.m. to 3 p.m. In addition, at Safi Barracks, a nurse from the local health - care service came to the establishment to administer medication requiring supervision in the evenings and at weekends.", "The CPT must stress that, given the size of the inmate populations, the current arrangements for the provision of health care were clearly insufficient to ensure that detainees ’ health problems were dealt with in a timely and effective manner. The delegation was overwhelmed by complaints from detainees about delays in seeing a doctor (up to several days) and, subsequently, in receiving prescribed medicines (up to one week). In practice, only a limited number of requests (usually five) per detention block were forwarded by detention officers to the nurse on duty on a first-come first ‑ served basis. This was described by many detainees as source of constant tension among themselves. ...", "In the two Warehouses at Safi Barracks, the delegation observed that a significant number of detainees were lying in bed all day in total apathy. Given that nurses never entered the detention areas, the likelihood was great that detainees in need of urgent psychological support remained undetected for a long time. Regrettably, both centres were still not being visited by a psychologist and a psychiatrist.", "Another major shortcoming was the lack of systematic medical screening of detainees upon admission to a detention centre. The delegation was informed by health-care staff that, on arrival at the port, all foreign nationals had undergone a chest X-ray, but no further screening was performed at the detention centres. In this regard, the CPT wishes to recall that systematic medical screening is not only an essential means of protecting detainees and staff alike (in particular, with regard to transmissible diseases) but also an important safeguard against ill-treatment. ...", "60. As regards contact with the outside world, the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months. ”", "In their report the CPT noted that, at Safi Detention Centre, attempts were made by the management to provide misleading information and to hide from the delegation a significant number of complaints which had been lodged by foreign nationals.", "48. In a report by the International Commission of Jurists (“ICJ”) entitled “Not here to stay”, Report of the International Commission of Jurists on its visit to Malta on 26 ‑ 30 September 2011, May 2012, which assessed migration and asylum practice in Malta (at the time of the Libyan crisis), the ICJ expressed concern that the Safi Barracks detention centres, including B-Block, were located on two military bases – a situation at odds with international law and standards. The ICJ report concluded that the accumulation of poor conditions of detention, brought the situation in the Safi Barracks detention centre beyond the threshold of degrading treatment, in violation of Malta ’ s international human rights obligations under Article 3 of the Convention.", "49. They considered that a lesser, though still worrisome, situation of overcrowding existed in B-Block of the Safi Barracks at the time of the ICJ visit. While this centre was provided with open cells, these were overcrowded with bunk beds, and the only privacy was that which had been tentatively achieved through hanging blankets from the top of the bunks. In their view in B-Block, the kitchen and the bathroom appeared rather dirty.", "50. They noted, inter alia, that in the Warehouse the number of toilets and showers appeared to the delegation to be insufficient in comparison to the number of people detained. The migrants detained in Warehouse One had no facilities for cooking, mainly due to the structure of the detention centre, which did not allow for a kitchen, big enough for all detainees, to be installed.", "51. Other relevant extracts from their report read as follows:", "“There is a lack of leisure facilities in the detention centres visited. In Warehouse One, the only entertainment was provided by a single television in the main common room and by the recreation-yard. In B-Block, there was also a recreation ‑ yard, although of rather limited dimensions, and the detainees expressly complained of the lack of means of recreation, claiming that they had only one ball at their disposal. No books seemed to be present in the detention facilities.” ...", "“The detainees in Warehouse One also complained about the clothing provided to them. According to them, clothes were given to them through charity and some of them were wearing very worn out t-shirts.” ...", "“ [the ICJ] considers that in Safi Barracks, the accumulation of poor conditions of detention, including sanitary conditions, together with the apparent existence of cases of psychological instability, with the lack of leisure facilities, the overcrowded conditions and the mandatory length of 18 months of detention brought, at the time of the visit, the situation in the detention centre beyond the threshold of degrading treatment, and therefore in violation of Article 3 ECHR, Articles 1 and 4 EU Charter, Article 7ICCPR and Article 16 CAT.”", "52. Bridging Borders, a JRS Malta report on the implementation of a project to provide shelter and psychosocial support to vulnerable asylum seekers between June 2011 and June 2012, highlights the fact that not all medication prescribed by medical personnel in detention is provided free by the Government health service. In fact the said report notes that during the lifetime of the project the organisation purchased medication for 130 detainees.", "53. Care in Captivity, a more recent JRS Malta report on the provision of care for detained asylum seekers experiencing mental health problems (research period December 2013 to June 2014), documented several obstacles to quality health care including: lack of availability of interpreters; lack of attendance for follow-up appointments following discharge to detention (in seven out of seventy-four cases); and failure to dispense prescribed psychotropic medication in some cases. It held that:", "“In this regard, the current system where, after discharge from the ASU ward, the responsibility for continuity of care, in terms of attendance of hospital appointments and dispensation of medication, falls under detention health care providers and custodial staff appears not to be operating effectively.”", "54. In so far as relevant, extracts from a report by Human Rights Watch in 2012 called “Boat-ride to Detention”, reads as follows:", "“ Children lack adequate information about the age determination process (including whether documents are accepted and whether there is an appeal). Some migrants who request an age determination procedure are seemingly ignored: interviewees reported telling authorities they were minors but never receiving age determination. Other children never request an age determination because they lack information on the procedure.”", "“The government should do more to provide children with reliable information about the age determination procedure. Children receive no guidance on the content of the procedure, whether documents will be useful, or whether they can appeal. Malta has taken considerable steps in providing information to migrants about the process for asylum, including by conducting information sessions to every incoming migrant. It could easily do the same for the age determination process.”", "55. A 2014 report issued by Aditus, a local NGO entitled “Unaccompanied Minor Asylum-Seekers in Malta: a technical Report on Ages Assessment and Guardianship Procedures ”, reads as follows:", "“The procedural information provided to persons undergoing age assessment is extremely limited which further excludes the applicant from active participation in the process.”", "“Under the old procedure [2012] persons were not adequately informed of the possibility of appeal... persons were also typically not informed of the reasons for a negative decision”", "“Most experts agree that age assessment is not a determination of chronological age but rather an educated guess. There are risks that due to the inaccuracy of age assessment techniques, persons claiming to be minors may have their age mis ‑ assessed”", "56. The relevant extracts of General Comment no.6 (2005) of the Committee on the Rights of the Child, entitled “ Treatment of unaccompanied and separated children outside their country of origin” read as follows :", "“ 61. In application of article 37 of the Convention and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. Where detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37(b) of the Convention that requires detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated children from detention and their placement in other form of appropriate accommodation. ...", "63. In the exceptional case of detention, conditions of detention must be governed by the best interests of the child and pay full respect to article 37(a) and (c) of the Convention and other international obligations. Special arrangements must be made for living quarters that are suitable for children and that separate them from adults, unless it is considered in the child ’ s best interests not to do so. Indeed, the underlying approach to such a program should be “care” and not “detention”. Facilities should not be located in isolated areas where culturally-appropriate community resources and access to legal aid are unavailable. Children should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel and their guardian. They should also be provided with the opportunity to receive all basic necessities as well as appropriate medical treatment and psychological counselling where necessary. During their period in detention, children have the right to education which ought, ideally, to take place outside the detention premises in order to facilitate the continuance of their education upon release. They also have the right to recreation and play as provided for in article 31 of the Convention. In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.”", "57. In their report “20 years of combatting torture” 19th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1 August 2008 - 31 July 2009, the CPT remarked as follows:", "“97. The CPT considers that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a minor. Following the principle of the “best interests of the child”, as formulated in Article 3 of the United Nations Convention on the Rights of the Child, detention of children, including unaccompanied and separated children, is rarely justified and, in the Committee ’ s view, can certainly not be motivated solely by the absence of residence status.", "When, exceptionally, a child is detained, the deprivation of liberty should be for the shortest possible period of time; all efforts should be made to allow the immediate release of unaccompanied or separated children from a detention facility and their placement in more appropriate care. Further, owing to the vulnerable nature of a child, additional safeguards should apply whenever a child is detained, particularly in those cases where the children are separated from their parents or other carers, or are unaccompanied, without parents, carers or relatives.", "98. As soon as possible after the presence of a child becomes known to the authorities, a professionally qualified person should conduct an initial interview, in a language the child understands. An assessment should be made of the child ’ s particular vulnerabilities, including from the standpoints of age, health, psychosocial factors and other protection needs, including those deriving from violence, trafficking or trauma. Unaccompanied or separated children deprived of their liberty should be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a guardian or legal representative. Review mechanisms should also be introduced to monitor the ongoing quality of the guardianship. 20 years of combating torture: CPT General Report 2008-20", "99. Steps should be taken to ensure a regular presence of, and individual contact with, a social worker and a psychologist in establishments holding children in detention. Mixed-gender staffing is another safeguard against ill-treatment; the presence of both male and female staff can have a beneficial effect in terms of the custodial ethos and foster a degree of normality in a place of detention. Children deprived of their liberty should also be offered a range of constructive activities (with particular emphasis on enabling a child to continue his or her education).”", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "58. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.", "II. PRELIMINARY ISSUES", "Article 37 § 1 of the Convention", "59. Article 37 § 1 of the Convention allows the Court to strike an application out of its list of cases and provides as follows:", "“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”", "60. In their first round of observations the Government submitted that it was not clear whether the first applicant intended to pursue his application, given the fact that he had absconded and had not kept the Court informed of his whereabouts, or of the outcome of his judicial proceedings in Germany. In their view, this behaviour was clear evidence that he was no longer interested in pursuing the application, and thus the Court should strike out his application. In their second round of observations, following the declaration produced by the first applicant ’ s legal representative, the Government highlighted that the signature on the declaration did not correspond to that on the application form; in consequence it could not be taken as a valid expression of interest to continue pursuing the application.", "61. The first applicant ’ s legal representatives, who submitted that they were still in touch with the first applicant, relied on the declaration made by him (in February 2015), in which he stated that he was in Germany and that he was still interested in pursuing his case before the Court, through his legal representatives who remained authorised to so do. In their further submissions they noted that they were regularly in contact - by telephone and with an interpreter - with the first applicant throughout the proceedings before this Court. They further explained that a photograph of the declaration signed by the first applicant (in February 2015) had been sent through a free instant messaging service for mobile telephones. They submitted that following the Government ’ s contestation (August 2015) the first applicant ’ s legal representatives again contacted the first applicant and his lawyer in Germany in order to obtain a further declaration. However, the first applicant informed them that he was unable to make the trip to his lawyer ’ s office in Frankfurt to have the declaration and signature authenticated, as he had no money for the journey. The first applicant ’ s legal representatives also submitted a signed declaration, dated 14 September 2015, by Ms Lena Ronte, an advocate practising in Germany, currently representing the first applicant in the proceedings in Germany. In the mentioned declaration she confirmed that the first applicant was residing in a reception centre in Schonbach, Germany, awaiting the outcome of his asylum proceedings. She confirmed that the first applicant ’ s representatives before this Court had contacted her to obtain a fresh declaration by him but that she had been unable to meet him, although she had spoken with him by telephone. According to her declaration, the first applicant told her that he was still interested in pursuing the case before the Court and confirmed that he was represented by Dr Michael Camilleri and Dr Katrine Camilleri, as stated in the authority form he signed on 16 April 2013.", "62. The Court notes that the first applicant ’ s legal representatives have not rebutted the Government ’ s challenge concerning the difference in the first applicant ’ s signatures in the application and the declaration. Nevertheless, in the Court ’ s view, while the signatures on the two documents are certainly different, it cannot be excluded that the first applicant, being Somali, was little accustomed to the Latin alphabet at the time of his signature in 2013. This situation may have evolved by the time the applicant signed his declaration in 2015 and thus the Court finds no reason to doubt its veracity in the present circumstances. Indeed, the Court considers that the submissions made by the first applicant ’ s legal representatives, together with the first applicant ’ s declaration in February 2015 as well as that of his lawyer in Germany dated September 2015, leave no doubt that the first applicant wishes to pursue his application.", "63. Accordingly, the Court rejects the Government ’ s request to strike the application no. 25794/13 out of its list of cases under Article 37 § 1 of the Convention, and continues the examination of the case.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "64. The applicants complained about the conditions of their detention in Warehouse 2 and Block B in Safi Barracks. They relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. The Government ’ s objection as to non-exhaustion of domestic remedies", "(a) The parties ’ submissions", "65. The Government submitted that the applicants had not brought their complaint before the domestic authorities. They considered that the applicants had a twofold remedy, namely constitutional redress proceedings to challenge the conditions of their detention while they were in detention and an action for damage in tort after they left detention. They further noted that an action under the European Convention Act was not subject to any time-limits. A summary of their submissions can be found in Mahamed Jama v. Malta ( no. 10290/13, §§ 49-53, 26 November 2015).", "66. The applicants submitted that there existed no effective domestic remedy which should have been used. A summary of their lawyers ’ submissions can be found in Mahamed Jama ( cited above, §§ 54-57 ).", "(b) The Court ’ s assessment", "67. The Court notes that in the present case, when the applicants lodged their application with the Court (on 17 April 2013) complaining, inter alia, about their conditions of detention, the applicants were still in detention, and thus, apart from requiring a remedy providing compensation, they required to have a preventive remedy capable of putting an end to the ongoing violation of their right not to be subjected to inhuman or degrading treatment.", "68. In a number of cases concerning the same situation, the Court has already found that none of the remedies indicated by the Government, alone or in aggregate, satisfy the requirements of an effective remedy in the sense of preventing the alleged violation or its continuation in a timely manner (see Mahamed Jama, cited above, §§ 58-66, and Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, §§ 43-51, 12 January 2016 ).", "69. It follows that the Government ’ s objection is dismissed.", "2. Conclusion", "70. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "71. The applicants considered the conditions of detention to be basic. They noted in particular the lack of access to constructive or recreational activities, insufficient provision of basic needs (including clothing), lack of information, difficulties in communicating with the outside world, limited access to open air, and obstacles in obtaining the most basic services. Other factors which had to be taken into consideration were their young age, their inability to communicate in any language apart from Somali, and the fact that they were detained in a facility with adult men from many different ethnic, linguistic and cultural backgrounds. Further, the detention centre was staffed by men, most having a security background, leaving a huge gap in the provision of social welfare services to detainees, in spite of their best efforts. In their view all the above took a greater toll, given their personal circumstances and situation while they were in detention. In particular both applicants claimed that they had been bullied and victimised by fellow detainees in both the facilities where they had been detained.", "72. They referred to the international reports about the matter, noting that while those reports did not refer to Warehouse 2, but solely to Warehouse 1, the conditions were practically identical in both warehouses. According to the CPT the warehouses were unsuitable to accommodate people in the long term.", "73. The first applicant also considered the warehouses to be overcrowded. There was no privacy, and he felt insecure as there was no protection from abuse and victimisation. He also emphasised that he had a number of health problems while he was in detention, during which period he was unable to obtain the necessary medical care; no support was provided while he was waiting for his age- assessment procedure.", "74. Relying on the Court ’ s case-law the applicants submitted that when assessing conditions of detention account had to be taken of the cumulative effect of the conditions, and that the minimum level of severity of ill ‑ treatment or degrading treatment depended on the circumstances of the case, such as the duration, physical and mental effects, sex, age and state of health of the victim. In the present case, at the time of their detention both the applicants were minors. They noted that in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI) concerning the detention of a five-year-old child, the Court had emphasised that steps should be taken to enable the effective protection of children and vulnerable members of society, including reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( § 53). According to the Court, her very young age, her immigration status, and the fact that she was unaccompanied rendered that child extremely vulnerable, and the respondent State owed her a duty of care and protection as part of its positive obligations under Article 3 ( § 55). The applicants submitted that even though they were older than the applicant in the aforementioned case, they were nevertheless minors and thus should have benefited from the enhanced guarantees provided by law for the protection of this vulnerable category of asylum seekers.", "75. They referred to Article 37 of the Convention on the Rights of the Child (see paragraph 41 above), to which Malta was a party. They noted that national law provided that “in the implementation of the provisions relating to material reception conditions and health care, account shall be taken of the specific situation of vulnerable persons which shall include minors, unaccompanied minors and pregnant women, found to have special needs after an individual evaluation of their situation”. It also stipulated that in the implementation of the provisions relating to the reception of minors “the best interests of the child shall constitute a primary consideration”. It did allow, however, that unaccompanied minors “aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”. Moreover, minor asylum seekers are entitled to “ have access to the education system under similar conditions to Maltese nationals... Access to the education system shall not be postponed for more than three months from the date the application for asylum was lodged by the minor... Provided that this period may be extended to one year where specific education is provided in order to facilitate access to the education system.”", "They noted that although the law does not specifically prohibit the detention of minors, several human rights monitoring bodies had emphasised that detention of children should be avoided (see paragraphs 48 and 54 above).", "76. The applicants clarified that their complaint did not only relate to the physical conditions in which they were detained, which they considered to be very bad, but also to the severely detrimental impact that detention had on their wellbeing due to their particular personal circumstances. They noted that both the applicants spent around five months (from August to mid ‑ January) in Warehouse 2 and around three months (from mid-January to the respective dates of their release in April) in Block B.", "77. They referred to the report by the ICJ (see paragraphs 52 et seq., above) and further noted that Warehouse 2, as its name implied, was designed for storage purposes and not to accommodate people. From the inside of the warehouse it was practically impossible to look outside, as all the windows were set high in the wall. This also limited the light inside the building and the ventilation. The only exits from the building were two doors to the yard, which were locked during the night. The first applicant complained that in summer it was scorching hot, and that he had been the victim of abuse by one of the hundreds of people of various ethnicities housed in the warehouse. The applicants submitted that according to information obtained at the time, in August and September 2012 Warehouse 2 contained far more than the stipulated 200 detainees (approximately 290-320 people ). From October the number of people held there went down to 200 or less and continued to go down progressively until January, when the detainees still held there were transferred to Block B.", "78. The only recreational activity available in detention was watching television or spending time in the yard adjoining the block. This lack of facilities had been commented on by the CPT and the ICJ. The first applicant noted that it was however difficult to join in playing football because the yard was small and all the other detainees were older than him. Both applicants complained that there was hardly anything for them to do to occupy their minds during their time in detention; the second applicant noted that he was left with a lot of time to worry about his situation.", "79. The applicants noted that it was not true that English classes were offered at Safi (they were offered at Lyster Barracks, another detention centre) and the SPARKLET project ended in November 2012, so it was only operating for the first three months of the applicants ’ detention and even while it was operational it only served small groups of migrants at any given time.", "80. Both applicants complained about their access to medical care and the quality of medical care provided. In particular they noted the unavailability of interpreters (excluding fellow detainees ); missed hospital appointments; and delay in the provision of medication/unavailability of medicine prescribed. While not doubting the efficacy of the medical personnel providing a service - given that they were more often than not communicating with migrants with little or no knowledge of English - it was difficult to understand how they could provide a quality service in an average of six minutes per patient (in the light of the Government submissions, see paragraph 94 below ). The applicants again referred to the CPT report and the JRS Malta report, Bridging Borders (see IV. Relevant Materials, above ).", "81. The applicants submitted that the centres at Safi Barracks were both staffed exclusively by Detention Service personnel, most of whom came from a security background and were neither trained nor competent to provide psychological or social support to detainees. While the applicants acknowledged that the personnel did their best, there was no provision of psycho-social support to detainees, especially to the applicants who were minors. Thus many of their concerns related to the treatment they experienced at the hands of fellow detainees which could not be addressed. The applicants highlighted that they were not provided with support to deal with the harsh realities of life in detention.", "82. Both applicants complained about the food in detention and that they mostly ate chicken while in detention. The first applicant complained that his skin was itching from the bad diet and when he tried to complain to the soldiers he was told that the food would remain as it was. They considered that the quality and quantity of the food provided lacked variety and was not culturally appropriate. According to reports by Médecins Sans Frontières and the JRS (relevant links submitted to the Court) the diet provided had led to a number of gastrointestinal problems among detainees.", "83. The applicants submitted that they received very little information apart from that provided by the Refugee Commissioner at the initial stages of the asylum procedure. Neither of them understood the written information, provided by the immigration authorities in Arabic, about their rights and obligations while in detention. They were also provided with very little information about the age- assessment procedure, to the extent that the second applicant felt compelled to go on a hunger strike in protest about the length of the procedure to determine his age. They referred to reports on the matter (see IV. Relevant Materials, above ).", "84. As to the lack of contact with the outside world, the applicants noted that like all the other detainees they were provided with a five ‑ euro phone card once every two months. This meant that their contact with their families was extremely limited. Being minors this was particularly hard for them to bear. The credit provided was quite limited and often insufficient to make long ‑ distance calls. Other, less costly, options were not available since detainees did not have Internet access. The lack of Internet access also hampered their access to information about what was happening in the outside world.", "85. Contrary to what the Government claimed, both applicants stated that they were not provided with the basic items they needed while in detention. The first applicant explained that when he arrived in detention the only things he was given were two sheets, one T -shirt, a blanket and two pairs of underwear but no shoes, not even flip-flops. It was only after four months that he was given shoes he could wear to play football, and that was only because he protested. In the meantime he had had to make do with some shoes which had been left behind by other Somalis who had since been released.", "86. The applicants found the living conditions in detention very difficult, particularly because of the fact that they had to live with so many people. They highlighted how unsafe they both felt in the often tense and violent atmosphere of detention, where other violent individuals were hosted (despite criminal records); both applicants describe incidents of bullying and intimidation which left them feeling very threatened and unsafe in detention, where it was impossible for them to obtain protection or effective redress for the harm suffered. Apart from being a minor, the first applicant also belonged to a minority group in that he was a member of the Midgan, a minority tribe, which caused him to fear other detainees, who often also stole his food. The applicants failed to understand how they, as minors, could be detained with other aggressive individuals, without any form of protection, supervision or support. Furthermore they admitted that they did not always report certain individuals for fear of reprisals. They noted that incidents of assault in detention were common, particularly among detainees, although few if any were reported, possibly due to doubts about the efficacy of the system in place to provide redress. A report entitled Becoming Vulnerable in Detention, National Report on Malta, July 2010 under the DEVAS project, reported that 28% of respondents interviewed for the study reported being physically assaulted while in detention. Of these 68% were assaulted by other detainees; 18% of them reported that they had filed complaints in cases of physical assault, but none reported that the complaints had resulted in any change.", "87. Furthermore, the applicants had to contend with the anxiety of not knowing what would happen to them or how long they would be detained. As the months went by, the adults who had arrived in Malta with them were released with protection, while they remained detained awaiting the outcome of the age- assessment procedure. This made life fraught with anxiety to the extent that the first applicant suffered from insomnia, and the second applicant repeatedly refused food in protest. The applicants claimed that prolonged detention caused a significant deterioration in their physical and mental well-being which was exacerbated by the lack of any real possibility of obtaining effective redress and the knowledge that detention was not serving any useful purpose and was in no way proportionate to the aim sought to be achieved.", "2. The Government ’ s submissions", "88. The Government submitted that the Safi Detention centre (a military base) had two warehouses (House 1 and House 2) as well as ( according to the photographs submitted ) a two-storey building called B Block. They explained that Warehouse 2 had been closed at the beginning of 2013 for refurbishment. Both warehouses have a capacity of 200 persons and host only men and male minors undergoing age- assessment procedures. They consist of a single open space with half-length low partitions between rows of bunk beds. At the entrance of the warehouse, there is a common area with tables, benches and a television, which exits onto an outdoor recreational facility. There is also access to secluded sanitary facilities with hot and cold water which respect the privacy of the individual using the shower facilities. All compounds have recreation yards which are accessible to inmates from sunrise to sunset.", "89. The Government submitted that they allocated substantial sums of money to secure the maintenance and upkeep of detention centres, while also providing shelter, food, clothing, and medical assistance to migrants. In the Government ’ s view the facility catered for all the needs of the migrants. Further, as far as possible migrants with different ethnicities and religious beliefs were kept separate while in detention.", "90. According to the Government, upon arrival an emergency bag is distributed and a second bag is supplied on the second day. Further supplies are provided on a regular basis to cater for the migrants ’ well-being, including that of the applicants, who did not have the financial means to purchase supplies. Every two weeks new cleaning products were supplied to each room in order to secure the cleanliness of the areas. The applicants were also given clothing and supplies to cater for personal hygiene, and had access to sanitary facilities equipped with hot and cold water, as well as secluded showers.", "91. The Government submitted that whilst in detention the applicants were housed in a sheltered compound with adequate bedding and were provided with three meals a day on a daily basis (the menu changed daily and food was prepared in different ways) and mineral water. Meals were provided from a pre-set menu, however, particular dietary requests were regularly respected and the food supplied respected the relevant religious traditions. The detention centres had a medical practitioner and a nurse who provided on-site treatment and could make referrals to hospital treatment, and “custody clinics” were set up in all compounds housing migrants.", "92. The detention centre is equipped with ceiling fans which can be used in the summer months and the building is equipped with windows that can be easily opened and which provide the necessary ventilation and circulations of air. The Government submitted that access to outside exercise was limited to one and a half hours daily, during which immigrants could engage in sports activities such as playing football.", "93. Immigration detainees were provided with telephone cards and various telephones can be found in the detention centre. Moreover, the Red Cross also operated a mobile phone calling service on a daily basis. The Government submitted that access to the Internet or mobile phones was restricted for security reasons. Interpreters were provided for free at the detention centres. The detainees were further provided with stationery and books on request and have unlimited access to NGOs and legal assistance. In 2013 the immigrants also had the opportunity to take part in an EU funded project (SPARKLET) which provided, inter alia, educational and cultural activities.", "94. The Government explained that medical services at the Safi Detention Centre had been outsourced since April 2007. Two doctors and two nurses visited the detention centres every day (except weekends) between 8 am and 3 pm ( nurses) and 9 am and 11 pm (doctors). On a daily basis each doctor examined forty inmates, meaning that 400 patients were examined each week. The clinics on site at each of the compounds in Safi were refurbished and equipped with basic medical equipment. During silent hours (when doctors were not present) detainees were allowed to visit the nearest health centre to see a doctor. Furthermore, nurses from the Malta Memorial District Nursing Association (MMDNA) reported to detention centres during weekdays in the evening and weekends both morning and evenings to dispense medicines. For migrants requiring mental health support, the doctor would refer them for further treatment at Mount Carmel Hospital (the State mental health hospital) and other referrals to the State General Hospital were made if specialised attention was necessary.", "95. As to the second applicant ’ s allegation, the Government reiterated that the Safi Detention centre had a clinic staffed by a doctor and a nurse, and in their absence he would have been taken to a health centre had he sought medical assistance. However, the Government claimed that no such report had ever been made by the applicant with the detention staff, neither was any report made concerning any beating by a fellow immigrant – in respect of which the second applicant gave no details. Further, the Government alleged (without any supporting evidence) that one of the people the applicant feared was in prison while the second applicant was detained in Safi. The Government further noted that the authorities kept medical appointments, but that it was the migrants who often refused to attend them, and other dates thus had to be fixed. The Government also contested the second applicant ’ s allegation that he was not given shoes on arrival, as the emergency bag distributed on the first day contains flip ‑ flops.", "96. The Government submitted that the applicants were given information on their arrival, by means of an information leaflet and verbally, and the Commissioner for Refugees holds information sessions with the aid of interpreters. As to information concerning the AWAS procedure the Government submitted that information was easily available had the applicants asked for it from the staff at the detention centre; however it did not appear that they had asked for it. The Government further noted that although coming from a security background the staff at the detention centre were given training to provide support to migrants.", "97. The Government referred to the Court ’ s case-law ( Sizarev v. Ukraine, no. 17116/04, 1 7 January 2013; Selcuk and Akser v. Turkey, nos. 23184/94 and 23185/94, 24 April 1998; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III; and particularly Aden Ahmed v. Malta, no. 55352/12, 23 July 2013 ), and the principles cited therein. They considered that the conditions of detention at issue could not be compared to those in facilities in respect of which the Court had found a violation (for example, Dougoz v. Greece, no. 40907/98, ECHR 2001 ‑ II; S.D. v. Greece, no. 53541/07, 11 June 2009; and A.A. v. Greece, no. 12186/08, 22 July 2010). In the present case the applicants had been given ample personal space (as the warehouse was never overcrowded) with adequate ventilation and bedding as well as exercise time. They had a balanced and varied diet and other items as mentioned above. Moreover, according to the Government “immediate” action was being taken to determine the applicants ’ age and conclude the procedure. In their view the applicants ’ age verification assessment (which had been concluded within seven months) had been determined diligently, and no room for uncertainty arose, given that their age could not be determined ictu oculi.", "98. The Government distinguished the case from that of Aden Ahmed (cited above) in that the detention period in the present case was shorter, and the applicants were not particularly fragile given that they were sixteen and seventeen years of age respectively, thus were almost adults, who from the information provided did not require frequent medical attention. Their age also distinguished the case from that of Mubilanzila Mayeka and Kaniki Mitunga (cited above) which concerned a five-year old child. Bearing in mind all the above, the Government considered that there had not been a violation of Article 3.", "3. The Court ’ s assessment", "(a) General principles", "99. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, §§ 95-96, 24 January 2008).", "100. Under Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity and that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Riad and Idiab, cited above, § 99; S.D. v. Greece, cited above, § 47; and A.A. v. Greece, cited above, § 55 ). When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz, cited above, § 46). The length of the period during which a person is detained in specific conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, § 50, 8 November 2005, and Aden Ahmed, cited above, § 86).", "101. The extreme lack of personal space in the detention area weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 36, 7 April 2005, and Yarashonen v. Turkey, no. 72710/11, § 72, 24 June 2014, and, for a detailed analysis of the principles concerning the overcrowding issue, see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143 ‑ 48, 10 January 2012 ).", "102. The Court further reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3. Such elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see Ananyev and Others, cited above, § 149 et seq. for further details, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 222, ECHR 2011). The Court notes in particular that the Prison Standards developed by the Committee for the Prevention of Torture make specific mention of outdoor exercise and consider it a basic safeguard of prisoners ’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out ‑ of ‑ cell activities (see Ananyev and Others, cited above, § 150).", "103. With more specific reference to minors, the Court has established that it is important to bear in mind that the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012 ). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see to this effect Popov, cited above, § 91 ).", "104. Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” (see Tarakhel v. Switzerland [GC], no. 29217/12, § 99, ECHR 2014 (extracts) ). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention (ibid.).", "(b) Application to the present case", "105. The Court notes that it has already had occasion to express its concern about the appropriateness of the place and the conditions of detention in Safi Barracks (see Suso Musa v. Malta, no. 42337/12, § 101, 23 July 2013 in the context of an Article 5 complaint ). In that case it noted that various international reports had expressed concerns on the matter. Both the CPT and the ICJ considered that the conditions in question could amount to inhuman and degrading treatment under Article 3 of the Convention; furthermore, those conditions had been exacerbated during the Libyan crisis, a time when Mr Suso Musa was in detention. In that light, the Court found it difficult to consider such conditions as appropriate for persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country.", "106. The Court notes that the present case concerns a period subsequent to that commented on by international bodies (see above). However it is safe to assume that Warehouse 2 remained in the same conditions it was in in 2011 (date of reports) until it closed for refurbishment in 2013, the time when the applicants were moved to Block B. In respect of the latter Block the Government have not claimed that any further improvements have been made since those reports.", "107. As to overcrowding the Court notes that, on the one hand, the applicants submitted that in the months of August and September Warehouse 2 hosted approximately 290-320 inmates. On the other hand the Government have submitted that Warehouse 2 can host around 200 inmates and that it was never overcrowded. The Court observes that the Government did not provide any specific rebuttal to this allegation, nor did they submit any relevant documentation concerning the number of detainees present at the relevant time, or the size of the premises. The Court considers that in the absence of exact numbers and the relevant measurements of Warehouse 2 being provided by any of the parties it cannot conclude with certainty that there existed overcrowding which was so severe as to justify in itself a finding of a violation of Article 3. Nevertheless, the Court notes that even at the time of the CPT visit in 2011 Warehouse 1 was hosting more than 200 inmates (see paragraph 47 above). The Court thus considers that the numbers submitted by the applicants are credible. Those numbers indicate that Warehouse 2 hosted around 50% more individuals than it was intended to host, and in the Court ’ s view this gives rise to a presumption that the applicants were detained in overcrowded conditions for around two months.", "108. In any event it is for the Court to assess the other aspects of the conditions of detention which are relevant to the assessment of compliance with Article 3.", "109. As regards the suffering from heat raised by the first applicant, the Court reiterates that suffering from cold and heat cannot be underestimated, as such conditions may affect well-being, and may in extreme circumstances affect health (see Aden Ahmed, cited above, § 94). Nevertheless, the Court notes that ceiling fans were in place, and despite the fact that Malta is an extremely hot country in the summer months the Court considers that the authorities cannot be expected to provide the most advanced technology. The applicants were also provided with telephone cards and three meals a day. The meals of which the applicants complain do not appear to have been entirely unbalanced or to have affected their health ‑ indeed it has not been shown that the first applicant ’ s allegation as to itching was as a result of the food provided. Further, the applicants ’ basic needs had been seen to by the distribution of items free of charge, and even if it is regrettable that certain items were not readily available, the applicants were not left without clothes or in unhygienic conditions – even if partly with private help.", "110. However, the Court is concerned about a number of other factors. The applicants complained of limited light and ventilation - while this concern has not been specifically highlighted by international reports in connection with Warehouse 2 and Block B ( where both applicants were detained for around five and three months respectively), the Court notes that such reports considered that Warehouse 2 was not intended to host people, and that it was not suitable to accommodate people for prolonged periods (see paragraphs 46 and 47 above). Similarly, although not emphasised by the applicants, the CPT report considered that the sanitary facilities in the warehouses were in a deplorable state and that the conditions of detention there were “appalling”. The situation appears to have improved slightly in the last three months of their detention when they were detained in Block B. However, the Court also notes that while the applicants had access to a common area equipped with a television, as well as to a yard, for a specific time daily, the CPT also highlighted the complete lack of any organised activity in the warehouses, and the poor situation prevailing also in Block B.", "111. These concerns assume a new dimension in view of the fact that the applicants were minors at the time of their detention (as confirmed by the domestic procedures). While it is true that the applicants were not young children, they still fell within the international definition of minors, in respect of which detention should be a last resort and which should be limited to the shortest time possible. As mentioned above, under the Court ’ s case-law reception conditions for children seeking asylum must be adapted to their age. However no measures were taken to ensure that the applicants as minors received proper counselling and educational assistance from qualified personnel specially mandated for that purpose (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 50 ). Nor were any entertainment facilities provided for persons of their age. Furthermore, the Court cannot ignore the applicants ’ submissions to the effect that there was a tense and violent atmosphere, as also documented by reports (see paragraph 86 above). The lack of any support mechanism for the applicants, as minors, as well as the lack of information concerning their situation, must have exacerbated their fears.", "112. The Court reiterates that a State ’ s obligations concerning the protection of migrant minors may be different depending on whether they are accompanied or not (see Rahimi v. Greece, no. 8687/08, § 63, 5 April 2011). However, the Court has found violations in both ambits. It found a violation of Article 3 in Popov (cited above, § 103) concerning accompanied minors in view of the children ’ s young age (five months and three years), the length of their detention (over a period of fifteen days) and the conditions of their confinement in a detention centre. It also found a violation of Article 3 in the Muskhadzhiyeva and Others (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal – the Court having taken into consideration their young age (seven months to seven years), the duration of the detention and their health status (see also Kanagaratnam v. Belgium, no. 15297/09, § 69, 13 December 2011). The Court has also previously found, in Rahimi ( cited above, §§ 85-86) in respect of an unaccompanied minor (aged fifteen) in such facilities, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention (a few days), as degrading treatment in breach of Article 3 of the Convention (see also Mubilanzila Mayeka and Kaniki Mitunga, cited above, §§ 50-59, in connection with a five - year - old unaccompanied minor).", "113. The Court observes that in the applicants ’ case the aforementioned conditions persisted for a period of around eight months, during which no specific arrangements were made for the applicants as migrants awaiting the outcome of their age-assessment procedure (whose status as minors was later confirmed). The Court reiterates that the applicants, as asylum-seekers, were particularly vulnerable because of everything they had been through during their migration and the traumatic experiences they were likely to have endured previously (see M.S.S., cited above, § 232). Moreover, in the present case the applicants, who were sixteen and seventeen years of age respectively, were even more vulnerable than any other adult asylum seeker detained at the time because of their age (see, a contrario, Mahamed Jama, cited above, § 100).", "114. It follows, in the present case, that since the applicants were minors who were detained for a period of around eight months, the cumulative effect of the conditions complained of amounted to degrading treatment within the meaning of the Convention.", "115. There has accordingly been a violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "116. The applicants complained that they did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court ’ s jurisprudence, to challenge the lawfulness of their detention. The provision reads as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. Admissibility", "117. The Government submitted that Article 5 § 4 did not apply to the present case since, according to the Court ’ s case-law, such a remedy is no longer required once an individual is lawfully free. They noted that the applicants had been released.", "118. The applicants noted that they were entitled to raise this complaint, since they had not had such a remedy during their detention, and had instituted proceedings before the Court while they were still in detention.", "119. While it is true that Article 5 § 4 cannot be relied on by a person who has been lawfully released (see Stephens v. Malta (no. 1), no. 11956/07, § 102, 21 April 2009), the Court notes that when the applicants lodged their application with the Court they were still detained and they were precisely complaining that they did not have an effective remedy to challenge the lawfulness of their detention during the time they were detained. They are not complaining of the absence of such a remedy following their release. In consequence the provision is clearly applicable. Moreover, the Court reiterates that a released person may nonetheless challenge under Article 5 § 4 the speediness of a remedy ( see Aden Ahmed, cited above, § 105 ).", "120. It follows that the Government ’ s objection must be dismissed.", "B. Merits", "1. The parties ’ submissions", "121. The applicants relied on the Court ’ s findings in Louled Massoud v. Malta (no. 24340/08, 27 July 2010), whereby the Court held that the available remedies in the Maltese domestic system were ineffective and insufficient for the purposes of Article 5 § 4. A summary of their submissions can be found in Mahamed Jama ( cited above, §§ 109-11 ).", "122. The Government submitted that this review was provided by Article 409A of the Maltese Criminal Code, and even if that were not so, it could be provided by means of proceedings before the constitutional jurisdictions. A summary of their lawyers ’ submissions can be found in Mahamed Jama ( cited above, §§ 112-14 ).", "2. The Court ’ s assessment", "123. The Court has already had occasion to examine such complaints and found that it had not been shown that applicants in situations such as that of the present case had at their disposal an effective and speedy remedy under domestic law by which to challenge the lawfulness of their detention (see, inter alia, Mahamed Jama, cited above, §§ 115-21, and Moxamed Ismaaciil and Abdirahman Warsame, cited above, § 112-18 ). There is no reason to hold otherwise in the present case.", "124. Article 5 § 4 of the Convention has therefore been violated.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "125. The applicants also complained under Article 5 § 1 (f) that their continued detention for eight months was arbitrary and unlawful, as it did not fall under either of the two limbs under the mentioned provision. In any event, even assuming it fell under the first limb, the law was not precise and did not provide for procedural safeguards. Moreover, their continued detention could not be considered reasonably required for the purpose, nor was it closely connected to the purpose of preventing an unauthorised entry. Furthermore, they had been detained in conditions which were not appropriate for young asylum seekers. The provision reads as follows:", "“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "A. Admissibility", "126. The Government submitted that the applicants had not brought their complaint before the domestic authorities.", "127. The Court has already held that the applicants did not have at their disposal an effective and speedy remedy by which to challenge the lawfulness of their detention (see paragraph 123 above). It follows that the Government ’ s objection must be dismissed.", "128. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "129. The applicants submitted that their initial detention was for the purpose of deportation as a result of the removal order and was in line with Article 14 (2) of the Immigration Act. Nevertheless once they applied for asylum, they could no longer be detained under either limb as, in their view, Maltese law provided that once such application was lodged the asylum seeker “shall not be removed ... and the applicant shall be allowed to enter or remain in Malta pending a final decision” (see Relevant domestic law). However, even assuming that their detention was to be considered as falling under the first limb, they considered that an approximately eight month detention (eight months and three days and seven months and twenty ‑ four days respectively) was arbitrary, as it exceeded the time reasonably required for its purpose, and thus could not be closely connected to the purpose of preventing an unauthorised entry.", "130. They noted that their detention was not the result of an individual decision to detain on the particular circumstances of their cases. It was not a measure taken after less coercive measures were deemed to be ineffective. Their detention was a result of a blanket policy applied to all without distinction, which made the detention arbitrary and discriminatory, irrespective of the Government ’ s claims to the contrary.", "131. Moreover, at no point was their continued detention reviewed in order to determine whether it remained closely connected to the purpose pursued or whether the length of their detention had exceeded that reasonably required for the purpose. They believe that their eight-month detention pending the outcome of age- assessment procedures in fact exceeded the length of time “ reasonably required for the purpose” and cannot be said to be “ closely connected to the purpose of preventing unauthorised entry”, especially given the relatively straightforward assessment process which consists of one or two interviews and an X-ray of the bones of the wrist. In their view, none of these procedures required more than a few days to be concluded. In fact, most of the months were spent waiting either to be sent for the ‘ bone test ’ or for the result of the test and the issuing of the care order. In fact the first applicant was taken for the bone test some weeks after his arrival but only released months later, although he was verbally informed in the interim that he was found to be a minor. As to the second applicant, he was interviewed some weeks after his arrival and taken for his bone test some five months later. They considered, that a huge influx of applications could not be used as a justification for unnecessarily prolonged administrative procedures, as a result of which they remained in detention.", "132. Further, the applicants submitted that in spite of the fact that the AWAS procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The only reference to age- assessment procedures was that in the Government ’ s policy document and subsidiary legislation (see Relevant domestic law below). They considered that nearly eight months to reach a determination on age was unjustifiable, and had an impact on the amount of time spent in detention (irrespective of the result of that process).", "133. The applicants claimed that the Age- Assessment Procedure has often been criticised, as it is plagued by delays and by a lack of adequate procedural guarantees, including lack of information about the procedure followed and the possibility of appeal. No reasons are ever given for decisions and there is no real possibility to challenge the decision taken by the AAT. In addition, migrants undergoing Age- Assessment Procedures are detained throughout the procedures, usually in centres with adults without any special consideration for the fact that they are minors. They referred to the 2012 report of Human Rights Watch entitled ‘ Boat - ride to Detention: Adult and Child Migrants in Malta ’ [2].", "134. Furthermore, the applicants submitted that they had not been kept in conditions which were appropriate for minor asylum seekers, and that they had no access to procedural safeguards.", "(b) The Government", "135. The Government submitted that the applicants ’ deprivation of liberty was a consequence of their unauthorised entry and pending the examination of their asylum application, thus in line with the first limb of the provision. Once they resulted to be minors, they had been released. They noted that practically all immigrants reaching Malta did not carry documents and thus ascertaining their identities upon entry was a lengthy process which dependent on the cooperation of the migrants themselves. Moreover, the large number of undocumented migrants constituted a huge and entirely justified security concern for Malta.", "136. The Government considered that the detention was carried out in good faith, as the centre at issue had been set up especially for that purpose, and the detention had fulfilled all the conditions indicated by the Court in Saadi v. the United Kingdom [GC] (no. 13229/03, ECHR 2008). They also considered that detention was based in law and was not discriminatory, nor was it applied across the board.", "137. They further noted that age assessment of persons who were quite young was fast tracked as in such cases there was little difficulty in assessing the age. In straightforward cases release from detention was effected within a maximum of two weeks from arrival. On the other hand with teenagers close to the age of adulthood, the procedure involved more steps and thus inevitably took longer. The procedure involved the holding of interviews with AWAS officials, and if they were inconclusive a Further Age Verification (FAV) test which consists of an X-ray of the hand and wrist bones and which, according to the Government, gives accurate results. At the same time the Government also admitted that the test had a margin of error of two years.", "138. The Government submitted that in 2013 567 individuals had claimed to be unaccompanied minors and most of them had required referral to the FAV test. Thus, any delay in the examination of the applicants ’ request was as a result of this huge influx. Moreover, one had to bear in mind the small size of the island and its limited resources, which sometimes resulted in a waiting list to carry out certain tests. They further noted that out of the 567 individuals, only 274 were ruled to be minors.", "2. The Court ’ s assessment", "139. The Court refers to its general principles relevant to the present case as reiterated in Mahamad Jama (cited above, §§ 136-40).", "140. It is noted that the applicants do not complain about the lawfulness and compliance with Article 5 of their detention between their arrival and the date when they applied for asylum (see paragraph 1 29 above, in primis ).", "141. As to the subsequent period the Court observes that the applicants had been detained in accordance with the provisions of the Immigration Act (Articles 5 and 14(2), Chapter 217 of the Laws of Malta). While expressing reservations about the quality of all the applicable laws seen together in such context, the Court has already accepted that in cases similar to those of the applicants, the detention had a sufficiently clear legal basis, and that up to the decision on an asylum claim, such detention can be considered to fall under the first limb of Article 5 § 1 (f), namely to “prevent effecting an unauthorised entry” (see Suso Musa, cited above, § 99 and Mahamed Jama, cited above, § 144). There is no reason to find otherwise in the present case.", "142. It remains to be determined whether the detention in the present case was not arbitrary, namely whether it was carried out in good faith; whether it was closely connected to the ground of detention relied on by the Government; whether the place and conditions of detention were appropriate and whether the length of the detention exceeded that reasonably required for the purpose pursued.", "143. The Court has already noted a series of odd practices on the part of the domestic authorities when dealing with immigrant arrivals and subsequent detentions and it expressed its reservations as to the Government ’ s good faith in applying an across-the-board detention policy (save for specific vulnerable categories) and the by-passing of the voluntary departure procedure (see Suso Musa, cited above § 100 and Mahamed Jama, cited above, § 146 ) - reservations which it maintains, noting that the two practices persisted in the present case (see paragraphs 7 and 10 above in connection with the first applicant, and paragraphs 12 and 15 with the second applicant ).", "144. Nevertheless, the focus of the applicants ’ complaint concerns the fact that they were detained despite the fact that at the time they had claimed to be minors (and later found to be so). The Court reiterates that the necessity of detaining children in an immigration context must be very carefully considered by the national authorities (see Mahamed Jama, cited above, § 147). It is positive that in the Maltese context, when an individual is found to be a minor, the latter is no longer detained, and he or she is placed in a non-custodial residential facility, and that detention of minors should be no longer than what is absolutely necessary to determine their identification and health status (see paragraphs 31 and 36 above). An issue may however arise, inter alia, in respect of a State ’ s good faith, in so far as the determination of age may take an unreasonable length of time - indeed, a lapse of various months may also result in an individual reaching his or her majority pending an official determination (ibid. ).", "145. The Court is, on the one hand, sensitive to the Government ’ s argument that younger looking individuals are fast tracked, and that the procedure is lengthier only in cases of persons close to adulthood, as well as their statement that in 2013 out of 567 individuals, only 274 were ruled to be minors ( in 2012 only forty-six turned out to be minors out of seventy ‑ five ‑ see Mahamed Jama, cited above, § 148). The Court observes that, as noted in Mahamed Jama, cited above, less than 10% of arrivals claimed to be minors in 2012 (that is when the applicants started their age ‑ assessment procedure). In this connection, the Court considers that despite the fact that “borderline” cases may require further assessment, the numbers of alleged minors per year put forward by the Government cannot justify a duration of more than seven months to determine the applicants ’ claims. Indeed, the Government have not explained why it was necessary for the first applicant in the present case to wait for a few weeks for his first age - assessment interview (see paragraph 18 above) and to wait for around seven months to have a decision following a standard medical test. The Court notes that during this time the first applicant remained in detention, despite having been told orally that he had been found to be a minor six months before (see paragraph 18). Similarly the Government have not explained why, following his interview, the second applicant had to wait for five months to have the FAV test and to wait for another two and a half months for such a decision, and therefore for his release under a care order. Indeed, in the present case it transpires that in October 2012 the authorities were already aware that the first applicant was a minor, and yet he remained in detention until a care order was issued on 19 April 2013, while the second applicant remained in detention for at least another month after his age was determined. In this connection the Court notes that Government policy clearly states that vulnerable people are exempt from detention and that unaccompanied minors are considered as a vulnerable category (see paragraphs 30 and 31 above).", "146. It follows that, even accepting that the detention was closely connected to the ground of detention relied on, namely to prevent an unauthorised entry, and in practice to allow for the applicants ’ asylum claim to be processed with the required prior age assessment, the delays in the present case, particularly those subsequent to the determination of the applicants ’ age, raise serious doubts as to the authorities ’ good faith. A situation rendered even more serious by the fact that the applicants lacked any procedural safeguards (as shown by the finding of a violation of Article 5 § 4, at paragraph 124 above), as well as the fact that at no stage did the authorities ascertain whether the placement in immigration detention of the applicants was a measure of last resort for which no alternative was available (see, mutatis mutandis, Popov, cited above, § 119).", "147. Moreover, as to the place and conditions of detention, the Court has already found that the situation endured by the applicants as minors, for a duration of eight months, was in breach of Article 3 of the Convention.", "148. In conclusion, bearing in mind all the above, the Court considers that in the present case the applicants ’ detention was not in compliance with Article 5 § 1. Accordingly, there has been a violation of that provision.", "V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION", "149. The applicants further complained under Article 5 § 2 that the Return Decision and Removal Order, provided to them in English, a language they did not understand, did not contain sufficient information enabling them to challenge their detention. The provision reads as follows:", "“ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”", "150. The Government submitted that the complaint was outside the six ‑ month limit, in so far as the applicants had been informed of the reasons of their detention on 16 and 31 August 2012 respectively, while they lodged their application only on 17 April 2013, which is eight months after the alleged violation.", "151. Relying on their submissions concerning non-exhaustion of domestic remedies, the applicants reiterated that migrant detainees had difficulties instituting judicial proceedings, and in consequence they submitted that they were not in a position to take action regarding this complaint within the six-month period prescribed by law.", "152. The Court notes that in the absence of a remedy (see paragraph 123 above), in principle, the six-month time-limit must be calculated from the date of the omission complained of (see Aden Ahmed, cited above, § 69, and Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016 ).", "153. Even assuming that in the early stages of their detention the applicants were unable to contest such a measure because of their inability to understand the factual circumstances and their lack of knowledge of the English language, the Court observes that no specific reasons have been brought to the Court ’ s attention, explaining why they were able to bring proceedings around eight months after their arrival and subsequent detention, but not two months earlier, in order to comply with the six-month rule (see Mahamed Jama, cited above, § 166).", "154. In such circumstances the Court considers that, the applicants having been informed of the reasons of their detention on 16 and 31 August 2012 respectively and having lodged their application on 17 April 2013, the complaint is inadmissible for non-compliance with the six -month rule set out in Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "155. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "156. The applicants claimed 50,00 0 euros (EUR) each in respect of non ‑ pecuniary damage, as a result of the violations of Article 3 and 5 in the present case.", "157. The Government argued that the claims made by the applicants were excessive, and noted that such awards were made by the Court only in cases of excessive beatings by the authorities and other serious Article 3 violations. They considered that a sum of EUR 3,000 would suffice in non ‑ pecuniary damage, given the circumstances of the case.", "158. The Court notes that it has found a violation of Articles 3, 5 § 1 and 5 § 4 in the present case, and therefore awards the applicants EUR 12,000 each, in respect of non-pecuniary damage.", "B. Costs and expenses", "159. The applicants also each claimed EUR 4,000 for costs and expenses incurred before the Court. The sum corresponded to sixty hours of legal work at an hourly rate of EUR 60, as well as clerical costs of EUR 400.", "160. The Government submitted that the award for costs and expenses should not exceed EUR 2,000 jointly.", "161. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the documents in its possession, the Court considers it reasonable to award the sum of EUR 4,000 jointly, covering costs for the proceedings before the Court.", "C. Default interest", "162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1996 and 1995 respectively. At the time of the introduction of the application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta.", "A. Background to the case", "1. Mr Burhaan Abdullahi Elmi (the first applicant)", "6. Mr Burhaan Abdullahi Elmi entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12U-029). During the registration process the immigration authorities asked the applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1996 and therefore was sixteen years old. The Government claimed that he was seventeen years old. Although no interpreter was present the applicant was helped by some other irregular immigrants who had arrived with him and who could speak English.", "7. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the first applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant ’ s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.", "8. The first applicant claimed that the contents of the decision in English were not explained to him, and that he could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.", "9. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the first applicant did not request a booklet in another language.", "10. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the first applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks, and in 2013 was moved to Block B.", "2. Mr Cabdulaahi Aweys Abubakar (the second applicant)", "11. Mr Cabdulaahi Aweys Abubakar entered Malta in an irregular manner by boat on 31 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12W-062). During the registration process the immigration authorities asked the second applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1995 and therefore was seventeen years old.", "12. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds” and “without leave granted by the principal Immigration Officer”. The Return Decision also informed the second applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant ’ s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.", "13. The second applicant claimed that the contents of the decision in English were not explained to him, and that he could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.", "14. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the second applicant did not request a booklet in another language.", "15. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the second applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks and in January 2013 was moved to Block B.", "B. Asylum proceedings", "1. Mr Burhaan Abdullahi Elmi", "16. A few days following Mr Burhaan Abdullahi Elmi ’ s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering his wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law, below). He stated on the form that he was sixteen years old.", "2. Mr Cabdulaahi Aweys Abubakar", "17. A few days following Mr Cabdulaahi Aweys Abubakar ’ s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the PQ, thereby registering his wish to apply for asylum. He stated on the form that he was born in 1995 and was seventeen years old.", "C. The AWAS Age-Assessment Procedure", "1. Mr Burhaan Abdullahi Elmi", "18. In Mr Burhaan Abdullahi Elmi ’ s case, on 31 August 2012 he was referred to AWAS for age assessment. Within a few weeks of his arrival, three people from AWAS interviewed him. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a further age verification (FAV) test ‑ this would be an X -ray of the bones of the wrist. He was taken for the FAV test shortly after his interview. The first applicant claimed that, some weeks later, in or around October 2012, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.", "19. Until the date of the lodging of the application, that is eight months after his arrival in Malta, Mr Burhaan Abdullahi Elmi had not received a written decision informing him of the outcome of the age ‑ assessment procedure, and was still in detention.", "2. Mr Cabdulaahi Aweys Abubakar", "20. In Mr Cabdulaahi Aweys Abubakar ’ s case, on 18 September 2012 he was referred to AWAS for age assessment. He was interviewed by three people from AWAS in the third week of September 2012. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a FAV test. He was taken for the FAV test on 8 February 2013, five months after his interview with AWAS. The second applicant claimed that, some weeks later, in March 2013, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.", "21. Until the date of the lodging of the application, that is almost eight months after his arrival in Malta, Mr Cabdulaahi Aweys Abubakar had not received a written decision informing him of the outcome of the age ‑ assessment procedure, and was still in detention.", "22. In the meantime both Mr Cabdulaahi Aweys Abubakar and members of the Jesuit Refugee Service who visited him in detention contacted AWAS on a number of occasions to inquire about the case, but no reply was forthcoming.", "D. Conditions of detention", "1. Mr Burhaan Abdullahi Elmi", "23. Mr Burhaan Abdullahi Elmi claims to have been held in very difficult conditions of detention with adult men of various nationalities. In Warehouse 2 and Block B, of Safi Detention Centre, physical conditions were basic and he often lacked the most basic necessities, including clothing, particularly shoes, which were only replaced every four months. Recreational activity was limited, and the yard was taken over by adult males, making it difficult for a young person like him to play with them. Educational activities were virtually non-existent. There was a lack of information, difficulties communicating with the outside world, and obstacles in obtaining the most basic services. Moreover, the centre was overcrowded and lacked protection from abuse and victimisation. Fights often broke out between men of different origins, nationalities or tribes, and he also referred to an episode where he had been beaten up by a fellow detainee. Noting there was no privacy or security, Mr Burhaan Abdullahi Elmi stressed that he felt very insecure in detention, and that his food was often stolen by detainees as was his blanket. He explained that Warehouse 2 was worse than Block B, it was like a big hall of people, hundreds of people, and he had a bunk bed in this big warehouse. He considered that the conditions in Warehouse 2 were very similar to those in Warehouse 1, which had been documented in a number of reports, including two CPT reports of 2007 and 2011. The first applicant also stated that he had difficulty communicating with a doctor in the absence of an interpreter and that he suffered from dizziness and eye problems.", "2. Mr Cabdulaahi Aweys Abubakar", "24. Mr Cabdulaahi Aweys Abubakar ’ s narration about the conditions of detention in Warehouse 2 and Block B are similar to those referred to by the first applicant. Mr Cabdulaahi Aweys Abubakar also noted that in the first two weeks of his detention he had had stomach pains, but no doctor was available, nor was an ambulance called. He alleged that he had headaches and rashes on his scalp; however, the detention authorities would not provide him with the shampoo prescribed by the doctor. He noted that in October 2012 the detention authorities had not taken him to a hospital appointment; it had had to be rescheduled to March 2013. On that date, the doctor prescribed medication, however, up to the date of the introduction of the application (17 April 2013) this had not been forthcoming. He also referred to an incident in which he had been beaten up by a fellow detainee who had allegedly also previously attacked another detainee with a knife. He noted that when he arrived in detention he was given two bed sheets, a blanket, a T-shirt, and two pairs of underwear, but no shoes, not even flip ‑ flops. The second applicant further explained that they were fed chicken every day and that he was unable to keep in touch with his relatives, as the five - euro phone card distributed to them every two months only allowed four minutes of talk time to Somalia.", "E. Latest developments", "1. Mr Burhaan Abdullahi Elmi", "25. The Government informed the Court that following the lodging of the application with the Court, on 19 April 2013 Mr Burhaan Abdullahi Elmi was released from detention under a care order and placed in an open centre for unaccompanied minors. He subsequently left Malta before the termination of his asylum proceedings; indeed the last day of registration at the open centre was 2 August 2013. In the absence of any further contact with the Office of the Refugee Commissioner, on 31 August 2013 the applicant ’ s asylum claim was implicitly “ withdrawn as discontinued ”.", "26. It appears that the first applicant absconded and went to Germany and was held by the German authorities, who in turn requested the Maltese authorities to take him back in terms of the Dublin Regulation. Following the acceptance of that request on 7 May 2014 the Maltese authorities were informed by the German authorities that return was suspended pending proceedings in Germany.", "27. In a signed declaration sent to the Court by his legal representatives the first applicant admitted to being in Schonbach, Germany, as he was waiting there for the outcome of the judicial proceedings as to whether he would be sent back to Malta in terms of the Dublin II Regulation to have his asylum claim determined.", "2. Mr Cabdulaahi Aweys Abubakar", "28. The Government informed the Court that following the lodging of the application with the Court, on 24 April 2013 Mr Cabdulaahi Aweys Abubakar was released from detention under a care order and placed in an open centre for unaccompanied minors. He was granted subsidiary protection on 14 September 2013." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Immigration Act and the Refugees Act", "29. The relevant articles of the above - mentioned Acts can be found in Aden Ahmed v. Malta (no. 55352/12, §§ 31-35, 23 July 2013).", "B. Government Policy", "30. According to the Irregular Immigrants, Refugees and Integration Policy Document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005:", "“ Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”.", "31. The document contains an inclusive list of those categories of migrants considered vulnerable, which includes: “unaccompanied minors, persons with disability, families and pregnant women”. With specific reference to unaccompanied minors and age assessment, the policy document states that:", "“Unaccompanied children and minors will be placed under state custody in terms of the Children and Young Persons (Care Order) Act (Chapter 285). This ensures that an unaccompanied minor is given the same treatment as a Maltese minor. ... The detention of minors should be no longer than what is absolutely necessary to determine their identification and health status. Interviews are to be carried in a ‘ child friendly ’ manner.", "Unfortunately there will be cases where individuals make false claims about their age in order to benefit from the terms and conditions of a Care Order. In order to ensure, as far as possible, that:", "(a) Care Orders are only issued in respect of true minors;", "(b) provisions for minors are not abused, and", "(c) actual minors are not deprived of the accommodation and services to which they are entitled by virtue of their age and the degree of vulnerability associated with it, Ministry for Justice and Home Affairs in consultation with the Ministry for the Family and Social Solidarity shall, in those cases where there is good reason to suspect the veracity of the minority age claimed by the immigrant, require the individual concerned to undertake an age verification test as soon as possible after arrival”.", "C. The Age- Assessment Procedure", "32. In order to give effect to this policy, a procedure known as the Age ‑ Assessment Procedure was developed and implemented first by the Refugee Service Area within Aġenzija Appoġġ ( the National Agency for children, families and the community) and later by AWAS (formerly OIWAS), with a view to assessing claims to minor age. Although AWAS is not formally charged with the responsibility for this procedure by the law which constitutes it (see below) in practice the said agency has full responsibility for this procedure.", "33. In practice, from the information available, it appears that the Age ‑ Assessment Procedure consisted of a number of different phases. Individuals were referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Immigration Police (where they declare to be minors on arrival) or the Refugee Commissioner (where they declare to be minors in their PQ). Following referral, an initial interview is conducted by one member of AWAS staff. Where this interview is inconclusive, a second interview is conducted by a panel of three persons known as the Age ‑ Assessment Team (AAT).", "34. Where the panel is convinced that the individual concerned is not a minor, the minority age claim is rejected. Where a doubt remains, s/he is referred for a Further Age Verification (FAV) test, which essentially consists of an X-ray of the bones of the wrist. Although the AAT is not bound by the results of the test, in practice, it would appear that in most cases where it is resorted to the result will determine the outcome of the assessment.", "35. If the individual concerned is found to be a minor, a care order is issued, the individual is released from detention and placed in an appropriate non-custodial residential facility, and a legal guardian is appointed to represent the minor. Once a guardian is appointed the asylum interview is carried out, and during the said interview the minor is assisted by a legal guardian. If the individual ’ s claim to minor age is rejected, AWAS informs the Refugee Commissioner so that his office can proceed with the refugee status determination procedure.", "36. In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows:", "“(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers.", "(2) In the performance of its functions, the Agency shall:", "(a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements;", "(b) provide particular services to categories of persons identified as vulnerable according to current policies;", "(c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes;", "(d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible;", "(e) promote the Government ’ s policy and schemes regarding resettlement and assisted voluntary returns;", "(f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies;", "(g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users;", "(h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research;", "(i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and", "(j) implement such other duties as may be assigned to it by the Minister or his representative.”", "37. Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 ‑ Legal Notice 243 of 2008, as applicable at the time of the present case (prior to amendments in 2014) laid down some basic procedural safeguards applicable when minors are interviewed, including the provision of information about the asylum procedure, assistance with preparation for the interview and presence of the representative during the interview. Its paragraph (2) dealt with the use of medical procedures to determine age within the context of an application for asylum. In so far as relevant it read as follows:", "“(1) In relation to an unaccompanied minor falling within the provisions of article 13(3) of the Act, as soon as possible, and not later than thirty days from the issue of the care order under that article:", "(a) it shall be ensured that the appointed representative of the unaccompanied minor is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself for the personal interview. The representative shall be present at the interview and may ask questions or make comments within the framework set by the person who conducts the interview;", "(b) where an unaccompanied minor has a personal interview on his application for asylum, that interview is to be conducted and the decision prepared by a person who has the necessary knowledge of the special needs of minors.", "(2) Medical examinations to determine the age of unaccompanied minors within the framework of any possible application for asylum may be carried out.", "Provided that:", "(a) unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination which may include the rejection of his claim that he is a minor;", "(b) unaccompanied minors and their representatives consent to carry out the determination of the age of the minors concerned;", "(c) the decision to reject an application from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal:", "Provided that an unaccompanied minor who has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum and that the best interests of the minor shall be a primary consideration in any such decision.”", "38. Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06 – Legal Notice 320 of 2005, states that:", "“an unaccompanied minor aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”.", "D. Other Relevant Subsidiary Legislation", "39. Part IV of Subsidiary Legislation 217.12, Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Legal Notice 81 of 2011 ( Transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member States for returning illegally staying third-country nationals, aka the Return Directive) in so far as relevant, is set out in Aden Ahmed (cited above, §§ 31-35).", "III. RELEVANT INTERNATIONAL TEXTS", "40. Under European Union law, in particular Article 24 of The Reception Conditions Directive provides guidance on the type of accommodation to be provided to unaccompanied minors, which must be with adult relatives, with a foster family, in reception centres with special provisions for minors, or in other suitable accommodation. Detention of unaccompanied minors is not fully prohibited but is only allowed in exceptional circumstances and never in prison accommodation (Article 11 (3) of the Recast Directive). The directive considers that a ‘ minor ’ means a third-country national or stateless person below the age of 18 years; it also notes that applicants aged sixteen and over, but under the age of eighteen and therefore still minors, may be placed in accommodation centres for adult asylum seekers, but only if it is in the best interests of the child [1].", "41. In so far as relevant the United Nations Convention on the Rights of the Child, of 20 November 1989, ratified by Malta in 1990, reads as follows:", "Article 1", "“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”", "Article 2", "“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child ’ s or his or her parent ’ s or legal guardian ’ s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.", "2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child ’ s parents, legal guardians, or family members.”", "Article 3", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”", "Article 37", "“States Parties shall ensure that:", "(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;", "(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;", "(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;", "(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”", "42. In Recommendation Rec(2003)5 of the Committee of Ministers of the Council of Europe, to member States, on measures of detention of asylum seekers, adopted by the Committee of Ministers on 16 April 2003 at the 837th meeting of the Ministers ’ Deputies, the Committee of Ministers recommended, in particular in respect of minors, that:", "“ 20. As a rule, minors should not be detained unless as a measure of last resort and for the shortest possible time.", "21. Minors should not be separated from their parents against their will, nor from other adults responsible for them whether by law or custom.", "22. If minors are detained, they must not be held under prison-like conditions. Every effort must be made to release them from detention as quickly as possible and place them in other accommodation. If this proves impossible, special arrangements must be made which are suitable for children and their families.", "23. For unaccompanied minor asylum seekers, alternative and non-custodial care arrangements, such as residential homes or foster placements, should be arranged and, where provided for by national legislation, legal guardians should be appointed, within the shortest possible time.”", "43. In Recommendation 1985 (2011) of the Parliamentary Assembly of the Council of Europe, of 7 October 2011, entitled “Undocumented migrant children in an irregular situation: a real cause for concern”, the Parliamentary assembly considered that undocumented migrant children are triply vulnerable: as migrants, as persons in an undocumented situation and as children. They recommended that member States refrain from detaining undocumented migrant children, and protect their liberty by abiding by the following principles:", "“9.4.1. a child should, in principle, never be detained. Where there is any consideration to detain a child, the best interest of the child should always come first;", "9.4.2. in exceptional cases where detention is necessary, it should be provided for by law, with all relevant legal protection and effective judicial review remedies, and only after alternatives to detention have been considered;", "9.4.3. if detained, the period must be for the shortest possible period of time and the facilities must be suited to the age of the child; relevant activities and educational support must also be available;", "9.4.4. if detention does take place, it must be in separate facilities from those for adults, or in facilities meant to accommodate children with their parents or other family members, and the child should not be separated from a parent, except in exceptional circumstances;", "9.4.5. unaccompanied children should, however, never be detained;", "9.4.6. no child should be deprived of his or her liberty solely because of his or her migration status, and never as a punitive measure;", "9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child;”", "44. Prior to the above recommendation, in Resolution 1707 (2010) 28 January 2010, the Parliamentary Assembly, called on member states of the Council of Europe in which asylum seekers and irregular migrants are detained to comply fully with their obligations under international human rights and refugee law, and encouraged them to abide by a number of guiding principles, inter alia, that vulnerable people should not, as a rule, be placed in detention and specifically that unaccompanied minors should never be detained.", "IV. RELEVANT MATERIALS", "45. The Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe following his visit to Malta from 23 to 25 March 2011, 9 June 2011, paragraphs 19-20, reads as follows;", "“19. At the end of their detention, migrants, including refugees, beneficiaries of subsidiary protection, asylum seekers and persons whose asylum claims have been rejected, are accommodated in open centres around Malta. Conditions prevailing in these centres vary greatly, with adequate arrangements reported in the smaller centres that cater for some vulnerable groups, such as families with children or unaccompanied minors, and far more difficult conditions in the bigger centres. As mentioned above, when the Commissioner ’ s visit took place the number of irregular arrivals had been very low for over 18 months and the 2011 arrivals from Libya had not yet started. As a result, the vast majority of migrants had moved out of the detention centres and were living in open centres, with the respective populations numbering at 49 and 2 231 respectively. The Commissioner visited the detention centre in Safi, and three open centres - the Hal-Far tent village, the Hangar Open Centre in Hal-Far and Marsa.", "20. At the time of the visit the material conditions in the Safi detention centre, where all 49 of the migrant detainees were kept, appeared to be considerably better than those in open centres. Although a number of issues remained to be addressed, including those regarding the detainees ’ access to a diversified diet and water other than from the tap, the premises visited, including the dormitories, toilets and showers had been recently refurbished. The only female detainee of the centre was accommodated in a separate facility. The Commissioner wishes to note however, that in accordance with the mandatory detention policy referred to above, most of the persons (approximately 1 100) who have arrived from Libya since his visit have been placed in detention centres. This is naturally bound to have a significant impact on the adequacy of the conditions in these centres.”", "46. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT) from 19 to 26 May 2008, 17 February 2011), in so far as relevant reads as follows:", "“52. In accordance with Maltese policy on administrative detention of foreigners under aliens ’ legislation, all foreigners arriving illegally in Malta are still detained for prolonged periods, in the case of asylum seekers until such time as their request for refugee status is determined (normally 12 months) and for irregular immigrants for up to a maximum of 18 months. In practice, however, some may spend even longer periods in detention. The only declared exceptions to this general rule concern persons deemed to be vulnerable because of their age and/or physical condition, unaccompanied minors and pregnant women ...", "53. The situation found in the detention centres visited by the delegation had not substantially improved since the CPT ’ s previous visit in 2005. Indeed, many of the problems identified in the report on that visit still remain unresolved. In several parts of the detention centres, the combined effects of prolonged periods of detention in poor, if not very poor, material conditions, with a total absence of purposeful activities, not to mention other factors, could well be considered to amount to inhuman and degrading treatment.", "material conditions", "...", "60. At Safi Barracks Detention Centre, which at the time of the visit accommodated a total of 507 immigration detainees, living conditions for detainees had slightly improved in comparison to the situation observed by the CPT in 2005.", "At Warehouse No. 1, living conditions were less cramped than when last visited by the CPT, and the toilet facilities were new and clean. That said, the Committee has strong reservations as regards the use of converted warehouses to accommodate detainees. This should only be seen as a temporary - and short term - solution.", "B Block has been refurbished since the CPT ’ s last visit. The sanitary facilities have been renovated and a large exercise area is at the disposal of the immigration detainees. However, conditions were still difficult in certain rooms, where immigration detainees were sleeping on mattresses on the floor.", "Surprisingly, poor conditions of detention were observed in the new C Block. Living conditions were cramped, access to natural light was insufficient and ventilation very poor. Further, access to running water was limited, as well as access to hot water, the latter being unavailable for prolonged periods.", "In addition, the internal regulation in force at Safi Barracks provided for the compulsory closing of the doors in B and C Blocks every afternoon at 5 p.m., thereby preventing access to the outdoor yard. This exacerbated significantly the already far from ideal living conditions in these blocks.”", "47. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Safi barracks, reads as follows:", "“44. At the time of the visit, Safi Detention Centre was accommodating a total of 506 male adult detainees (236 in Warehouse No. 1, 113 in Warehouse No. 2 and 124 in Block B).", "In keeping with the Government ’ s Detention Policy, no unaccompanied minors were held in either of the two detention centres visited. Upon issuance of a care order by the Minister of Social Policy, unaccompanied minors were always transferred to a juvenile institution. Single women were always accommodated separately from male detainees.", "...", "48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre). The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly.", "...", "55. At both [ Lyster and ] Safi Detention Centres, material conditions have improved since the 2008 visit. ... At Safi Barracks, additional renovation work had been carried out in Block B. It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear.", "However, material conditions of detention were still appalling in the two Warehouses at Safi Barracks. In particular, at Warehouse No. 1, foreign nationals were being held in extremely crowded conditions and the sanitary facilities consisting of seven mobile toilets (without a flush) and seven mobile shower booths, located in the outdoor exercise yard, were in a deplorable state. In fact, the Warehouses are not suitable for accommodating persons for prolonged periods, but should only be used in the event of an emergency.", "The CPT recommends that the Maltese authorities take the necessary measures to ensure that all immigration detainees currently being held in the two Warehouses at Safi Barracks are transferred as soon as possible to Ta ’ Kandja Detention Centre and that both Warehouses are in future only used for short ‑ term detention in emergency situations.", "...", "57. At Safi Detention Centre, conditions of detention in the two warehouses were further exacerbated by the total lack of any organised activities. The situation was slightly better, but far from satisfactory in Block B, where detainees could play football in the exercise yard (surrounded by high walls), which was accessible from 8.30 a.m. to 7 p.m.", "The CPT calls upon the Maltese authorities to introduce a regime providing purposeful activities to foreign nationals held at Safi [ and Ta ’ Kandja Detention ] Centres.", "...", "58. Medical and nursing services in detention centres for foreigners were provided by two separate privately-run companies. There was a pool of doctors ensuring the presence of one doctor from Mondays to Fridays (including public holidays), for five hours per day at Safi [and four hours per day at Lyster Barracks]. Further, a nurse was present in each detention centre from Mondays to Fridays from 8 a.m. to 3 p.m. In addition, at Safi Barracks, a nurse from the local health - care service came to the establishment to administer medication requiring supervision in the evenings and at weekends.", "The CPT must stress that, given the size of the inmate populations, the current arrangements for the provision of health care were clearly insufficient to ensure that detainees ’ health problems were dealt with in a timely and effective manner. The delegation was overwhelmed by complaints from detainees about delays in seeing a doctor (up to several days) and, subsequently, in receiving prescribed medicines (up to one week). In practice, only a limited number of requests (usually five) per detention block were forwarded by detention officers to the nurse on duty on a first-come first ‑ served basis. This was described by many detainees as source of constant tension among themselves. ...", "In the two Warehouses at Safi Barracks, the delegation observed that a significant number of detainees were lying in bed all day in total apathy. Given that nurses never entered the detention areas, the likelihood was great that detainees in need of urgent psychological support remained undetected for a long time. Regrettably, both centres were still not being visited by a psychologist and a psychiatrist.", "Another major shortcoming was the lack of systematic medical screening of detainees upon admission to a detention centre. The delegation was informed by health-care staff that, on arrival at the port, all foreign nationals had undergone a chest X-ray, but no further screening was performed at the detention centres. In this regard, the CPT wishes to recall that systematic medical screening is not only an essential means of protecting detainees and staff alike (in particular, with regard to transmissible diseases) but also an important safeguard against ill-treatment. ...", "60. As regards contact with the outside world, the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months. ”", "In their report the CPT noted that, at Safi Detention Centre, attempts were made by the management to provide misleading information and to hide from the delegation a significant number of complaints which had been lodged by foreign nationals.", "48. In a report by the International Commission of Jurists (“ICJ”) entitled “Not here to stay”, Report of the International Commission of Jurists on its visit to Malta on 26 ‑ 30 September 2011, May 2012, which assessed migration and asylum practice in Malta (at the time of the Libyan crisis), the ICJ expressed concern that the Safi Barracks detention centres, including B-Block, were located on two military bases – a situation at odds with international law and standards. The ICJ report concluded that the accumulation of poor conditions of detention, brought the situation in the Safi Barracks detention centre beyond the threshold of degrading treatment, in violation of Malta ’ s international human rights obligations under Article 3 of the Convention.", "49. They considered that a lesser, though still worrisome, situation of overcrowding existed in B-Block of the Safi Barracks at the time of the ICJ visit. While this centre was provided with open cells, these were overcrowded with bunk beds, and the only privacy was that which had been tentatively achieved through hanging blankets from the top of the bunks. In their view in B-Block, the kitchen and the bathroom appeared rather dirty.", "50. They noted, inter alia, that in the Warehouse the number of toilets and showers appeared to the delegation to be insufficient in comparison to the number of people detained. The migrants detained in Warehouse One had no facilities for cooking, mainly due to the structure of the detention centre, which did not allow for a kitchen, big enough for all detainees, to be installed.", "51. Other relevant extracts from their report read as follows:", "“There is a lack of leisure facilities in the detention centres visited. In Warehouse One, the only entertainment was provided by a single television in the main common room and by the recreation-yard. In B-Block, there was also a recreation ‑ yard, although of rather limited dimensions, and the detainees expressly complained of the lack of means of recreation, claiming that they had only one ball at their disposal. No books seemed to be present in the detention facilities.” ...", "“The detainees in Warehouse One also complained about the clothing provided to them. According to them, clothes were given to them through charity and some of them were wearing very worn out t-shirts.” ...", "“ [the ICJ] considers that in Safi Barracks, the accumulation of poor conditions of detention, including sanitary conditions, together with the apparent existence of cases of psychological instability, with the lack of leisure facilities, the overcrowded conditions and the mandatory length of 18 months of detention brought, at the time of the visit, the situation in the detention centre beyond the threshold of degrading treatment, and therefore in violation of Article 3 ECHR, Articles 1 and 4 EU Charter, Article 7ICCPR and Article 16 CAT.”", "52. Bridging Borders, a JRS Malta report on the implementation of a project to provide shelter and psychosocial support to vulnerable asylum seekers between June 2011 and June 2012, highlights the fact that not all medication prescribed by medical personnel in detention is provided free by the Government health service. In fact the said report notes that during the lifetime of the project the organisation purchased medication for 130 detainees.", "53. Care in Captivity, a more recent JRS Malta report on the provision of care for detained asylum seekers experiencing mental health problems (research period December 2013 to June 2014), documented several obstacles to quality health care including: lack of availability of interpreters; lack of attendance for follow-up appointments following discharge to detention (in seven out of seventy-four cases); and failure to dispense prescribed psychotropic medication in some cases. It held that:", "“In this regard, the current system where, after discharge from the ASU ward, the responsibility for continuity of care, in terms of attendance of hospital appointments and dispensation of medication, falls under detention health care providers and custodial staff appears not to be operating effectively.”", "54. In so far as relevant, extracts from a report by Human Rights Watch in 2012 called “Boat-ride to Detention”, reads as follows:", "“ Children lack adequate information about the age determination process (including whether documents are accepted and whether there is an appeal). Some migrants who request an age determination procedure are seemingly ignored: interviewees reported telling authorities they were minors but never receiving age determination. Other children never request an age determination because they lack information on the procedure.”", "“The government should do more to provide children with reliable information about the age determination procedure. Children receive no guidance on the content of the procedure, whether documents will be useful, or whether they can appeal. Malta has taken considerable steps in providing information to migrants about the process for asylum, including by conducting information sessions to every incoming migrant. It could easily do the same for the age determination process.”", "55. A 2014 report issued by Aditus, a local NGO entitled “Unaccompanied Minor Asylum-Seekers in Malta: a technical Report on Ages Assessment and Guardianship Procedures ”, reads as follows:", "“The procedural information provided to persons undergoing age assessment is extremely limited which further excludes the applicant from active participation in the process.”", "“Under the old procedure [2012] persons were not adequately informed of the possibility of appeal... persons were also typically not informed of the reasons for a negative decision”", "“Most experts agree that age assessment is not a determination of chronological age but rather an educated guess. There are risks that due to the inaccuracy of age assessment techniques, persons claiming to be minors may have their age mis ‑ assessed”", "56. The relevant extracts of General Comment no.6 (2005) of the Committee on the Rights of the Child, entitled “ Treatment of unaccompanied and separated children outside their country of origin” read as follows :", "“ 61. In application of article 37 of the Convention and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. Where detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37(b) of the Convention that requires detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated children from detention and their placement in other form of appropriate accommodation. ...", "63. In the exceptional case of detention, conditions of detention must be governed by the best interests of the child and pay full respect to article 37(a) and (c) of the Convention and other international obligations. Special arrangements must be made for living quarters that are suitable for children and that separate them from adults, unless it is considered in the child ’ s best interests not to do so. Indeed, the underlying approach to such a program should be “care” and not “detention”. Facilities should not be located in isolated areas where culturally-appropriate community resources and access to legal aid are unavailable. Children should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel and their guardian. They should also be provided with the opportunity to receive all basic necessities as well as appropriate medical treatment and psychological counselling where necessary. During their period in detention, children have the right to education which ought, ideally, to take place outside the detention premises in order to facilitate the continuance of their education upon release. They also have the right to recreation and play as provided for in article 31 of the Convention. In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.”", "57. In their report “20 years of combatting torture” 19th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1 August 2008 - 31 July 2009, the CPT remarked as follows:", "“97. The CPT considers that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a minor. Following the principle of the “best interests of the child”, as formulated in Article 3 of the United Nations Convention on the Rights of the Child, detention of children, including unaccompanied and separated children, is rarely justified and, in the Committee ’ s view, can certainly not be motivated solely by the absence of residence status.", "When, exceptionally, a child is detained, the deprivation of liberty should be for the shortest possible period of time; all efforts should be made to allow the immediate release of unaccompanied or separated children from a detention facility and their placement in more appropriate care. Further, owing to the vulnerable nature of a child, additional safeguards should apply whenever a child is detained, particularly in those cases where the children are separated from their parents or other carers, or are unaccompanied, without parents, carers or relatives.", "98. As soon as possible after the presence of a child becomes known to the authorities, a professionally qualified person should conduct an initial interview, in a language the child understands. An assessment should be made of the child ’ s particular vulnerabilities, including from the standpoints of age, health, psychosocial factors and other protection needs, including those deriving from violence, trafficking or trauma. Unaccompanied or separated children deprived of their liberty should be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a guardian or legal representative. Review mechanisms should also be introduced to monitor the ongoing quality of the guardianship. 20 years of combating torture: CPT General Report 2008-20", "99. Steps should be taken to ensure a regular presence of, and individual contact with, a social worker and a psychologist in establishments holding children in detention. Mixed-gender staffing is another safeguard against ill-treatment; the presence of both male and female staff can have a beneficial effect in terms of the custodial ethos and foster a degree of normality in a place of detention. Children deprived of their liberty should also be offered a range of constructive activities (with particular emphasis on enabling a child to continue his or her education).”", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "58. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.", "II. PRELIMINARY ISSUES", "Article 37 § 1 of the Convention", "59. Article 37 § 1 of the Convention allows the Court to strike an application out of its list of cases and provides as follows:", "“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”", "60. In their first round of observations the Government submitted that it was not clear whether the first applicant intended to pursue his application, given the fact that he had absconded and had not kept the Court informed of his whereabouts, or of the outcome of his judicial proceedings in Germany. In their view, this behaviour was clear evidence that he was no longer interested in pursuing the application, and thus the Court should strike out his application. In their second round of observations, following the declaration produced by the first applicant ’ s legal representative, the Government highlighted that the signature on the declaration did not correspond to that on the application form; in consequence it could not be taken as a valid expression of interest to continue pursuing the application.", "61. The first applicant ’ s legal representatives, who submitted that they were still in touch with the first applicant, relied on the declaration made by him (in February 2015), in which he stated that he was in Germany and that he was still interested in pursuing his case before the Court, through his legal representatives who remained authorised to so do. In their further submissions they noted that they were regularly in contact - by telephone and with an interpreter - with the first applicant throughout the proceedings before this Court. They further explained that a photograph of the declaration signed by the first applicant (in February 2015) had been sent through a free instant messaging service for mobile telephones. They submitted that following the Government ’ s contestation (August 2015) the first applicant ’ s legal representatives again contacted the first applicant and his lawyer in Germany in order to obtain a further declaration. However, the first applicant informed them that he was unable to make the trip to his lawyer ’ s office in Frankfurt to have the declaration and signature authenticated, as he had no money for the journey. The first applicant ’ s legal representatives also submitted a signed declaration, dated 14 September 2015, by Ms Lena Ronte, an advocate practising in Germany, currently representing the first applicant in the proceedings in Germany. In the mentioned declaration she confirmed that the first applicant was residing in a reception centre in Schonbach, Germany, awaiting the outcome of his asylum proceedings. She confirmed that the first applicant ’ s representatives before this Court had contacted her to obtain a fresh declaration by him but that she had been unable to meet him, although she had spoken with him by telephone. According to her declaration, the first applicant told her that he was still interested in pursuing the case before the Court and confirmed that he was represented by Dr Michael Camilleri and Dr Katrine Camilleri, as stated in the authority form he signed on 16 April 2013.", "62. The Court notes that the first applicant ’ s legal representatives have not rebutted the Government ’ s challenge concerning the difference in the first applicant ’ s signatures in the application and the declaration. Nevertheless, in the Court ’ s view, while the signatures on the two documents are certainly different, it cannot be excluded that the first applicant, being Somali, was little accustomed to the Latin alphabet at the time of his signature in 2013. This situation may have evolved by the time the applicant signed his declaration in 2015 and thus the Court finds no reason to doubt its veracity in the present circumstances. Indeed, the Court considers that the submissions made by the first applicant ’ s legal representatives, together with the first applicant ’ s declaration in February 2015 as well as that of his lawyer in Germany dated September 2015, leave no doubt that the first applicant wishes to pursue his application.", "63. Accordingly, the Court rejects the Government ’ s request to strike the application no. 25794/13 out of its list of cases under Article 37 § 1 of the Convention, and continues the examination of the case.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "64. The applicants complained about the conditions of their detention in Warehouse 2 and Block B in Safi Barracks. They relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. The Government ’ s objection as to non-exhaustion of domestic remedies", "(a) The parties ’ submissions", "65. The Government submitted that the applicants had not brought their complaint before the domestic authorities. They considered that the applicants had a twofold remedy, namely constitutional redress proceedings to challenge the conditions of their detention while they were in detention and an action for damage in tort after they left detention. They further noted that an action under the European Convention Act was not subject to any time-limits. A summary of their submissions can be found in Mahamed Jama v. Malta ( no. 10290/13, §§ 49-53, 26 November 2015).", "66. The applicants submitted that there existed no effective domestic remedy which should have been used. A summary of their lawyers ’ submissions can be found in Mahamed Jama ( cited above, §§ 54-57 ).", "(b) The Court ’ s assessment", "67. The Court notes that in the present case, when the applicants lodged their application with the Court (on 17 April 2013) complaining, inter alia, about their conditions of detention, the applicants were still in detention, and thus, apart from requiring a remedy providing compensation, they required to have a preventive remedy capable of putting an end to the ongoing violation of their right not to be subjected to inhuman or degrading treatment.", "68. In a number of cases concerning the same situation, the Court has already found that none of the remedies indicated by the Government, alone or in aggregate, satisfy the requirements of an effective remedy in the sense of preventing the alleged violation or its continuation in a timely manner (see Mahamed Jama, cited above, §§ 58-66, and Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, §§ 43-51, 12 January 2016 ).", "69. It follows that the Government ’ s objection is dismissed.", "2. Conclusion", "70. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "71. The applicants considered the conditions of detention to be basic. They noted in particular the lack of access to constructive or recreational activities, insufficient provision of basic needs (including clothing), lack of information, difficulties in communicating with the outside world, limited access to open air, and obstacles in obtaining the most basic services. Other factors which had to be taken into consideration were their young age, their inability to communicate in any language apart from Somali, and the fact that they were detained in a facility with adult men from many different ethnic, linguistic and cultural backgrounds. Further, the detention centre was staffed by men, most having a security background, leaving a huge gap in the provision of social welfare services to detainees, in spite of their best efforts. In their view all the above took a greater toll, given their personal circumstances and situation while they were in detention. In particular both applicants claimed that they had been bullied and victimised by fellow detainees in both the facilities where they had been detained.", "72. They referred to the international reports about the matter, noting that while those reports did not refer to Warehouse 2, but solely to Warehouse 1, the conditions were practically identical in both warehouses. According to the CPT the warehouses were unsuitable to accommodate people in the long term.", "73. The first applicant also considered the warehouses to be overcrowded. There was no privacy, and he felt insecure as there was no protection from abuse and victimisation. He also emphasised that he had a number of health problems while he was in detention, during which period he was unable to obtain the necessary medical care; no support was provided while he was waiting for his age- assessment procedure.", "74. Relying on the Court ’ s case-law the applicants submitted that when assessing conditions of detention account had to be taken of the cumulative effect of the conditions, and that the minimum level of severity of ill ‑ treatment or degrading treatment depended on the circumstances of the case, such as the duration, physical and mental effects, sex, age and state of health of the victim. In the present case, at the time of their detention both the applicants were minors. They noted that in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI) concerning the detention of a five-year-old child, the Court had emphasised that steps should be taken to enable the effective protection of children and vulnerable members of society, including reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( § 53). According to the Court, her very young age, her immigration status, and the fact that she was unaccompanied rendered that child extremely vulnerable, and the respondent State owed her a duty of care and protection as part of its positive obligations under Article 3 ( § 55). The applicants submitted that even though they were older than the applicant in the aforementioned case, they were nevertheless minors and thus should have benefited from the enhanced guarantees provided by law for the protection of this vulnerable category of asylum seekers.", "75. They referred to Article 37 of the Convention on the Rights of the Child (see paragraph 41 above), to which Malta was a party. They noted that national law provided that “in the implementation of the provisions relating to material reception conditions and health care, account shall be taken of the specific situation of vulnerable persons which shall include minors, unaccompanied minors and pregnant women, found to have special needs after an individual evaluation of their situation”. It also stipulated that in the implementation of the provisions relating to the reception of minors “the best interests of the child shall constitute a primary consideration”. It did allow, however, that unaccompanied minors “aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”. Moreover, minor asylum seekers are entitled to “ have access to the education system under similar conditions to Maltese nationals... Access to the education system shall not be postponed for more than three months from the date the application for asylum was lodged by the minor... Provided that this period may be extended to one year where specific education is provided in order to facilitate access to the education system.”", "They noted that although the law does not specifically prohibit the detention of minors, several human rights monitoring bodies had emphasised that detention of children should be avoided (see paragraphs 48 and 54 above).", "76. The applicants clarified that their complaint did not only relate to the physical conditions in which they were detained, which they considered to be very bad, but also to the severely detrimental impact that detention had on their wellbeing due to their particular personal circumstances. They noted that both the applicants spent around five months (from August to mid ‑ January) in Warehouse 2 and around three months (from mid-January to the respective dates of their release in April) in Block B.", "77. They referred to the report by the ICJ (see paragraphs 52 et seq., above) and further noted that Warehouse 2, as its name implied, was designed for storage purposes and not to accommodate people. From the inside of the warehouse it was practically impossible to look outside, as all the windows were set high in the wall. This also limited the light inside the building and the ventilation. The only exits from the building were two doors to the yard, which were locked during the night. The first applicant complained that in summer it was scorching hot, and that he had been the victim of abuse by one of the hundreds of people of various ethnicities housed in the warehouse. The applicants submitted that according to information obtained at the time, in August and September 2012 Warehouse 2 contained far more than the stipulated 200 detainees (approximately 290-320 people ). From October the number of people held there went down to 200 or less and continued to go down progressively until January, when the detainees still held there were transferred to Block B.", "78. The only recreational activity available in detention was watching television or spending time in the yard adjoining the block. This lack of facilities had been commented on by the CPT and the ICJ. The first applicant noted that it was however difficult to join in playing football because the yard was small and all the other detainees were older than him. Both applicants complained that there was hardly anything for them to do to occupy their minds during their time in detention; the second applicant noted that he was left with a lot of time to worry about his situation.", "79. The applicants noted that it was not true that English classes were offered at Safi (they were offered at Lyster Barracks, another detention centre) and the SPARKLET project ended in November 2012, so it was only operating for the first three months of the applicants ’ detention and even while it was operational it only served small groups of migrants at any given time.", "80. Both applicants complained about their access to medical care and the quality of medical care provided. In particular they noted the unavailability of interpreters (excluding fellow detainees ); missed hospital appointments; and delay in the provision of medication/unavailability of medicine prescribed. While not doubting the efficacy of the medical personnel providing a service - given that they were more often than not communicating with migrants with little or no knowledge of English - it was difficult to understand how they could provide a quality service in an average of six minutes per patient (in the light of the Government submissions, see paragraph 94 below ). The applicants again referred to the CPT report and the JRS Malta report, Bridging Borders (see IV. Relevant Materials, above ).", "81. The applicants submitted that the centres at Safi Barracks were both staffed exclusively by Detention Service personnel, most of whom came from a security background and were neither trained nor competent to provide psychological or social support to detainees. While the applicants acknowledged that the personnel did their best, there was no provision of psycho-social support to detainees, especially to the applicants who were minors. Thus many of their concerns related to the treatment they experienced at the hands of fellow detainees which could not be addressed. The applicants highlighted that they were not provided with support to deal with the harsh realities of life in detention.", "82. Both applicants complained about the food in detention and that they mostly ate chicken while in detention. The first applicant complained that his skin was itching from the bad diet and when he tried to complain to the soldiers he was told that the food would remain as it was. They considered that the quality and quantity of the food provided lacked variety and was not culturally appropriate. According to reports by Médecins Sans Frontières and the JRS (relevant links submitted to the Court) the diet provided had led to a number of gastrointestinal problems among detainees.", "83. The applicants submitted that they received very little information apart from that provided by the Refugee Commissioner at the initial stages of the asylum procedure. Neither of them understood the written information, provided by the immigration authorities in Arabic, about their rights and obligations while in detention. They were also provided with very little information about the age- assessment procedure, to the extent that the second applicant felt compelled to go on a hunger strike in protest about the length of the procedure to determine his age. They referred to reports on the matter (see IV. Relevant Materials, above ).", "84. As to the lack of contact with the outside world, the applicants noted that like all the other detainees they were provided with a five ‑ euro phone card once every two months. This meant that their contact with their families was extremely limited. Being minors this was particularly hard for them to bear. The credit provided was quite limited and often insufficient to make long ‑ distance calls. Other, less costly, options were not available since detainees did not have Internet access. The lack of Internet access also hampered their access to information about what was happening in the outside world.", "85. Contrary to what the Government claimed, both applicants stated that they were not provided with the basic items they needed while in detention. The first applicant explained that when he arrived in detention the only things he was given were two sheets, one T -shirt, a blanket and two pairs of underwear but no shoes, not even flip-flops. It was only after four months that he was given shoes he could wear to play football, and that was only because he protested. In the meantime he had had to make do with some shoes which had been left behind by other Somalis who had since been released.", "86. The applicants found the living conditions in detention very difficult, particularly because of the fact that they had to live with so many people. They highlighted how unsafe they both felt in the often tense and violent atmosphere of detention, where other violent individuals were hosted (despite criminal records); both applicants describe incidents of bullying and intimidation which left them feeling very threatened and unsafe in detention, where it was impossible for them to obtain protection or effective redress for the harm suffered. Apart from being a minor, the first applicant also belonged to a minority group in that he was a member of the Midgan, a minority tribe, which caused him to fear other detainees, who often also stole his food. The applicants failed to understand how they, as minors, could be detained with other aggressive individuals, without any form of protection, supervision or support. Furthermore they admitted that they did not always report certain individuals for fear of reprisals. They noted that incidents of assault in detention were common, particularly among detainees, although few if any were reported, possibly due to doubts about the efficacy of the system in place to provide redress. A report entitled Becoming Vulnerable in Detention, National Report on Malta, July 2010 under the DEVAS project, reported that 28% of respondents interviewed for the study reported being physically assaulted while in detention. Of these 68% were assaulted by other detainees; 18% of them reported that they had filed complaints in cases of physical assault, but none reported that the complaints had resulted in any change.", "87. Furthermore, the applicants had to contend with the anxiety of not knowing what would happen to them or how long they would be detained. As the months went by, the adults who had arrived in Malta with them were released with protection, while they remained detained awaiting the outcome of the age- assessment procedure. This made life fraught with anxiety to the extent that the first applicant suffered from insomnia, and the second applicant repeatedly refused food in protest. The applicants claimed that prolonged detention caused a significant deterioration in their physical and mental well-being which was exacerbated by the lack of any real possibility of obtaining effective redress and the knowledge that detention was not serving any useful purpose and was in no way proportionate to the aim sought to be achieved.", "2. The Government ’ s submissions", "88. The Government submitted that the Safi Detention centre (a military base) had two warehouses (House 1 and House 2) as well as ( according to the photographs submitted ) a two-storey building called B Block. They explained that Warehouse 2 had been closed at the beginning of 2013 for refurbishment. Both warehouses have a capacity of 200 persons and host only men and male minors undergoing age- assessment procedures. They consist of a single open space with half-length low partitions between rows of bunk beds. At the entrance of the warehouse, there is a common area with tables, benches and a television, which exits onto an outdoor recreational facility. There is also access to secluded sanitary facilities with hot and cold water which respect the privacy of the individual using the shower facilities. All compounds have recreation yards which are accessible to inmates from sunrise to sunset.", "89. The Government submitted that they allocated substantial sums of money to secure the maintenance and upkeep of detention centres, while also providing shelter, food, clothing, and medical assistance to migrants. In the Government ’ s view the facility catered for all the needs of the migrants. Further, as far as possible migrants with different ethnicities and religious beliefs were kept separate while in detention.", "90. According to the Government, upon arrival an emergency bag is distributed and a second bag is supplied on the second day. Further supplies are provided on a regular basis to cater for the migrants ’ well-being, including that of the applicants, who did not have the financial means to purchase supplies. Every two weeks new cleaning products were supplied to each room in order to secure the cleanliness of the areas. The applicants were also given clothing and supplies to cater for personal hygiene, and had access to sanitary facilities equipped with hot and cold water, as well as secluded showers.", "91. The Government submitted that whilst in detention the applicants were housed in a sheltered compound with adequate bedding and were provided with three meals a day on a daily basis (the menu changed daily and food was prepared in different ways) and mineral water. Meals were provided from a pre-set menu, however, particular dietary requests were regularly respected and the food supplied respected the relevant religious traditions. The detention centres had a medical practitioner and a nurse who provided on-site treatment and could make referrals to hospital treatment, and “custody clinics” were set up in all compounds housing migrants.", "92. The detention centre is equipped with ceiling fans which can be used in the summer months and the building is equipped with windows that can be easily opened and which provide the necessary ventilation and circulations of air. The Government submitted that access to outside exercise was limited to one and a half hours daily, during which immigrants could engage in sports activities such as playing football.", "93. Immigration detainees were provided with telephone cards and various telephones can be found in the detention centre. Moreover, the Red Cross also operated a mobile phone calling service on a daily basis. The Government submitted that access to the Internet or mobile phones was restricted for security reasons. Interpreters were provided for free at the detention centres. The detainees were further provided with stationery and books on request and have unlimited access to NGOs and legal assistance. In 2013 the immigrants also had the opportunity to take part in an EU funded project (SPARKLET) which provided, inter alia, educational and cultural activities.", "94. The Government explained that medical services at the Safi Detention Centre had been outsourced since April 2007. Two doctors and two nurses visited the detention centres every day (except weekends) between 8 am and 3 pm ( nurses) and 9 am and 11 pm (doctors). On a daily basis each doctor examined forty inmates, meaning that 400 patients were examined each week. The clinics on site at each of the compounds in Safi were refurbished and equipped with basic medical equipment. During silent hours (when doctors were not present) detainees were allowed to visit the nearest health centre to see a doctor. Furthermore, nurses from the Malta Memorial District Nursing Association (MMDNA) reported to detention centres during weekdays in the evening and weekends both morning and evenings to dispense medicines. For migrants requiring mental health support, the doctor would refer them for further treatment at Mount Carmel Hospital (the State mental health hospital) and other referrals to the State General Hospital were made if specialised attention was necessary.", "95. As to the second applicant ’ s allegation, the Government reiterated that the Safi Detention centre had a clinic staffed by a doctor and a nurse, and in their absence he would have been taken to a health centre had he sought medical assistance. However, the Government claimed that no such report had ever been made by the applicant with the detention staff, neither was any report made concerning any beating by a fellow immigrant – in respect of which the second applicant gave no details. Further, the Government alleged (without any supporting evidence) that one of the people the applicant feared was in prison while the second applicant was detained in Safi. The Government further noted that the authorities kept medical appointments, but that it was the migrants who often refused to attend them, and other dates thus had to be fixed. The Government also contested the second applicant ’ s allegation that he was not given shoes on arrival, as the emergency bag distributed on the first day contains flip ‑ flops.", "96. The Government submitted that the applicants were given information on their arrival, by means of an information leaflet and verbally, and the Commissioner for Refugees holds information sessions with the aid of interpreters. As to information concerning the AWAS procedure the Government submitted that information was easily available had the applicants asked for it from the staff at the detention centre; however it did not appear that they had asked for it. The Government further noted that although coming from a security background the staff at the detention centre were given training to provide support to migrants.", "97. The Government referred to the Court ’ s case-law ( Sizarev v. Ukraine, no. 17116/04, 1 7 January 2013; Selcuk and Akser v. Turkey, nos. 23184/94 and 23185/94, 24 April 1998; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III; and particularly Aden Ahmed v. Malta, no. 55352/12, 23 July 2013 ), and the principles cited therein. They considered that the conditions of detention at issue could not be compared to those in facilities in respect of which the Court had found a violation (for example, Dougoz v. Greece, no. 40907/98, ECHR 2001 ‑ II; S.D. v. Greece, no. 53541/07, 11 June 2009; and A.A. v. Greece, no. 12186/08, 22 July 2010). In the present case the applicants had been given ample personal space (as the warehouse was never overcrowded) with adequate ventilation and bedding as well as exercise time. They had a balanced and varied diet and other items as mentioned above. Moreover, according to the Government “immediate” action was being taken to determine the applicants ’ age and conclude the procedure. In their view the applicants ’ age verification assessment (which had been concluded within seven months) had been determined diligently, and no room for uncertainty arose, given that their age could not be determined ictu oculi.", "98. The Government distinguished the case from that of Aden Ahmed (cited above) in that the detention period in the present case was shorter, and the applicants were not particularly fragile given that they were sixteen and seventeen years of age respectively, thus were almost adults, who from the information provided did not require frequent medical attention. Their age also distinguished the case from that of Mubilanzila Mayeka and Kaniki Mitunga (cited above) which concerned a five-year old child. Bearing in mind all the above, the Government considered that there had not been a violation of Article 3.", "3. The Court ’ s assessment", "(a) General principles", "99. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, §§ 95-96, 24 January 2008).", "100. Under Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity and that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Riad and Idiab, cited above, § 99; S.D. v. Greece, cited above, § 47; and A.A. v. Greece, cited above, § 55 ). When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz, cited above, § 46). The length of the period during which a person is detained in specific conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, § 50, 8 November 2005, and Aden Ahmed, cited above, § 86).", "101. The extreme lack of personal space in the detention area weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 36, 7 April 2005, and Yarashonen v. Turkey, no. 72710/11, § 72, 24 June 2014, and, for a detailed analysis of the principles concerning the overcrowding issue, see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143 ‑ 48, 10 January 2012 ).", "102. The Court further reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3. Such elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see Ananyev and Others, cited above, § 149 et seq. for further details, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 222, ECHR 2011). The Court notes in particular that the Prison Standards developed by the Committee for the Prevention of Torture make specific mention of outdoor exercise and consider it a basic safeguard of prisoners ’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out ‑ of ‑ cell activities (see Ananyev and Others, cited above, § 150).", "103. With more specific reference to minors, the Court has established that it is important to bear in mind that the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012 ). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see to this effect Popov, cited above, § 91 ).", "104. Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” (see Tarakhel v. Switzerland [GC], no. 29217/12, § 99, ECHR 2014 (extracts) ). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention (ibid.).", "(b) Application to the present case", "105. The Court notes that it has already had occasion to express its concern about the appropriateness of the place and the conditions of detention in Safi Barracks (see Suso Musa v. Malta, no. 42337/12, § 101, 23 July 2013 in the context of an Article 5 complaint ). In that case it noted that various international reports had expressed concerns on the matter. Both the CPT and the ICJ considered that the conditions in question could amount to inhuman and degrading treatment under Article 3 of the Convention; furthermore, those conditions had been exacerbated during the Libyan crisis, a time when Mr Suso Musa was in detention. In that light, the Court found it difficult to consider such conditions as appropriate for persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country.", "106. The Court notes that the present case concerns a period subsequent to that commented on by international bodies (see above). However it is safe to assume that Warehouse 2 remained in the same conditions it was in in 2011 (date of reports) until it closed for refurbishment in 2013, the time when the applicants were moved to Block B. In respect of the latter Block the Government have not claimed that any further improvements have been made since those reports.", "107. As to overcrowding the Court notes that, on the one hand, the applicants submitted that in the months of August and September Warehouse 2 hosted approximately 290-320 inmates. On the other hand the Government have submitted that Warehouse 2 can host around 200 inmates and that it was never overcrowded. The Court observes that the Government did not provide any specific rebuttal to this allegation, nor did they submit any relevant documentation concerning the number of detainees present at the relevant time, or the size of the premises. The Court considers that in the absence of exact numbers and the relevant measurements of Warehouse 2 being provided by any of the parties it cannot conclude with certainty that there existed overcrowding which was so severe as to justify in itself a finding of a violation of Article 3. Nevertheless, the Court notes that even at the time of the CPT visit in 2011 Warehouse 1 was hosting more than 200 inmates (see paragraph 47 above). The Court thus considers that the numbers submitted by the applicants are credible. Those numbers indicate that Warehouse 2 hosted around 50% more individuals than it was intended to host, and in the Court ’ s view this gives rise to a presumption that the applicants were detained in overcrowded conditions for around two months.", "108. In any event it is for the Court to assess the other aspects of the conditions of detention which are relevant to the assessment of compliance with Article 3.", "109. As regards the suffering from heat raised by the first applicant, the Court reiterates that suffering from cold and heat cannot be underestimated, as such conditions may affect well-being, and may in extreme circumstances affect health (see Aden Ahmed, cited above, § 94). Nevertheless, the Court notes that ceiling fans were in place, and despite the fact that Malta is an extremely hot country in the summer months the Court considers that the authorities cannot be expected to provide the most advanced technology. The applicants were also provided with telephone cards and three meals a day. The meals of which the applicants complain do not appear to have been entirely unbalanced or to have affected their health ‑ indeed it has not been shown that the first applicant ’ s allegation as to itching was as a result of the food provided. Further, the applicants ’ basic needs had been seen to by the distribution of items free of charge, and even if it is regrettable that certain items were not readily available, the applicants were not left without clothes or in unhygienic conditions – even if partly with private help.", "110. However, the Court is concerned about a number of other factors. The applicants complained of limited light and ventilation - while this concern has not been specifically highlighted by international reports in connection with Warehouse 2 and Block B ( where both applicants were detained for around five and three months respectively), the Court notes that such reports considered that Warehouse 2 was not intended to host people, and that it was not suitable to accommodate people for prolonged periods (see paragraphs 46 and 47 above). Similarly, although not emphasised by the applicants, the CPT report considered that the sanitary facilities in the warehouses were in a deplorable state and that the conditions of detention there were “appalling”. The situation appears to have improved slightly in the last three months of their detention when they were detained in Block B. However, the Court also notes that while the applicants had access to a common area equipped with a television, as well as to a yard, for a specific time daily, the CPT also highlighted the complete lack of any organised activity in the warehouses, and the poor situation prevailing also in Block B.", "111. These concerns assume a new dimension in view of the fact that the applicants were minors at the time of their detention (as confirmed by the domestic procedures). While it is true that the applicants were not young children, they still fell within the international definition of minors, in respect of which detention should be a last resort and which should be limited to the shortest time possible. As mentioned above, under the Court ’ s case-law reception conditions for children seeking asylum must be adapted to their age. However no measures were taken to ensure that the applicants as minors received proper counselling and educational assistance from qualified personnel specially mandated for that purpose (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 50 ). Nor were any entertainment facilities provided for persons of their age. Furthermore, the Court cannot ignore the applicants ’ submissions to the effect that there was a tense and violent atmosphere, as also documented by reports (see paragraph 86 above). The lack of any support mechanism for the applicants, as minors, as well as the lack of information concerning their situation, must have exacerbated their fears.", "112. The Court reiterates that a State ’ s obligations concerning the protection of migrant minors may be different depending on whether they are accompanied or not (see Rahimi v. Greece, no. 8687/08, § 63, 5 April 2011). However, the Court has found violations in both ambits. It found a violation of Article 3 in Popov (cited above, § 103) concerning accompanied minors in view of the children ’ s young age (five months and three years), the length of their detention (over a period of fifteen days) and the conditions of their confinement in a detention centre. It also found a violation of Article 3 in the Muskhadzhiyeva and Others (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal – the Court having taken into consideration their young age (seven months to seven years), the duration of the detention and their health status (see also Kanagaratnam v. Belgium, no. 15297/09, § 69, 13 December 2011). The Court has also previously found, in Rahimi ( cited above, §§ 85-86) in respect of an unaccompanied minor (aged fifteen) in such facilities, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention (a few days), as degrading treatment in breach of Article 3 of the Convention (see also Mubilanzila Mayeka and Kaniki Mitunga, cited above, §§ 50-59, in connection with a five - year - old unaccompanied minor).", "113. The Court observes that in the applicants ’ case the aforementioned conditions persisted for a period of around eight months, during which no specific arrangements were made for the applicants as migrants awaiting the outcome of their age-assessment procedure (whose status as minors was later confirmed). The Court reiterates that the applicants, as asylum-seekers, were particularly vulnerable because of everything they had been through during their migration and the traumatic experiences they were likely to have endured previously (see M.S.S., cited above, § 232). Moreover, in the present case the applicants, who were sixteen and seventeen years of age respectively, were even more vulnerable than any other adult asylum seeker detained at the time because of their age (see, a contrario, Mahamed Jama, cited above, § 100).", "114. It follows, in the present case, that since the applicants were minors who were detained for a period of around eight months, the cumulative effect of the conditions complained of amounted to degrading treatment within the meaning of the Convention.", "115. There has accordingly been a violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "116. The applicants complained that they did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court ’ s jurisprudence, to challenge the lawfulness of their detention. The provision reads as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. Admissibility", "117. The Government submitted that Article 5 § 4 did not apply to the present case since, according to the Court ’ s case-law, such a remedy is no longer required once an individual is lawfully free. They noted that the applicants had been released.", "118. The applicants noted that they were entitled to raise this complaint, since they had not had such a remedy during their detention, and had instituted proceedings before the Court while they were still in detention.", "119. While it is true that Article 5 § 4 cannot be relied on by a person who has been lawfully released (see Stephens v. Malta (no. 1), no. 11956/07, § 102, 21 April 2009), the Court notes that when the applicants lodged their application with the Court they were still detained and they were precisely complaining that they did not have an effective remedy to challenge the lawfulness of their detention during the time they were detained. They are not complaining of the absence of such a remedy following their release. In consequence the provision is clearly applicable. Moreover, the Court reiterates that a released person may nonetheless challenge under Article 5 § 4 the speediness of a remedy ( see Aden Ahmed, cited above, § 105 ).", "120. It follows that the Government ’ s objection must be dismissed.", "B. Merits", "1. The parties ’ submissions", "121. The applicants relied on the Court ’ s findings in Louled Massoud v. Malta (no. 24340/08, 27 July 2010), whereby the Court held that the available remedies in the Maltese domestic system were ineffective and insufficient for the purposes of Article 5 § 4. A summary of their submissions can be found in Mahamed Jama ( cited above, §§ 109-11 ).", "122. The Government submitted that this review was provided by Article 409A of the Maltese Criminal Code, and even if that were not so, it could be provided by means of proceedings before the constitutional jurisdictions. A summary of their lawyers ’ submissions can be found in Mahamed Jama ( cited above, §§ 112-14 ).", "2. The Court ’ s assessment", "123. The Court has already had occasion to examine such complaints and found that it had not been shown that applicants in situations such as that of the present case had at their disposal an effective and speedy remedy under domestic law by which to challenge the lawfulness of their detention (see, inter alia, Mahamed Jama, cited above, §§ 115-21, and Moxamed Ismaaciil and Abdirahman Warsame, cited above, § 112-18 ). There is no reason to hold otherwise in the present case.", "124. Article 5 § 4 of the Convention has therefore been violated.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "125. The applicants also complained under Article 5 § 1 (f) that their continued detention for eight months was arbitrary and unlawful, as it did not fall under either of the two limbs under the mentioned provision. In any event, even assuming it fell under the first limb, the law was not precise and did not provide for procedural safeguards. Moreover, their continued detention could not be considered reasonably required for the purpose, nor was it closely connected to the purpose of preventing an unauthorised entry. Furthermore, they had been detained in conditions which were not appropriate for young asylum seekers. The provision reads as follows:", "“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "A. Admissibility", "126. The Government submitted that the applicants had not brought their complaint before the domestic authorities.", "127. The Court has already held that the applicants did not have at their disposal an effective and speedy remedy by which to challenge the lawfulness of their detention (see paragraph 123 above). It follows that the Government ’ s objection must be dismissed.", "128. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "129. The applicants submitted that their initial detention was for the purpose of deportation as a result of the removal order and was in line with Article 14 (2) of the Immigration Act. Nevertheless once they applied for asylum, they could no longer be detained under either limb as, in their view, Maltese law provided that once such application was lodged the asylum seeker “shall not be removed ... and the applicant shall be allowed to enter or remain in Malta pending a final decision” (see Relevant domestic law). However, even assuming that their detention was to be considered as falling under the first limb, they considered that an approximately eight month detention (eight months and three days and seven months and twenty ‑ four days respectively) was arbitrary, as it exceeded the time reasonably required for its purpose, and thus could not be closely connected to the purpose of preventing an unauthorised entry.", "130. They noted that their detention was not the result of an individual decision to detain on the particular circumstances of their cases. It was not a measure taken after less coercive measures were deemed to be ineffective. Their detention was a result of a blanket policy applied to all without distinction, which made the detention arbitrary and discriminatory, irrespective of the Government ’ s claims to the contrary.", "131. Moreover, at no point was their continued detention reviewed in order to determine whether it remained closely connected to the purpose pursued or whether the length of their detention had exceeded that reasonably required for the purpose. They believe that their eight-month detention pending the outcome of age- assessment procedures in fact exceeded the length of time “ reasonably required for the purpose” and cannot be said to be “ closely connected to the purpose of preventing unauthorised entry”, especially given the relatively straightforward assessment process which consists of one or two interviews and an X-ray of the bones of the wrist. In their view, none of these procedures required more than a few days to be concluded. In fact, most of the months were spent waiting either to be sent for the ‘ bone test ’ or for the result of the test and the issuing of the care order. In fact the first applicant was taken for the bone test some weeks after his arrival but only released months later, although he was verbally informed in the interim that he was found to be a minor. As to the second applicant, he was interviewed some weeks after his arrival and taken for his bone test some five months later. They considered, that a huge influx of applications could not be used as a justification for unnecessarily prolonged administrative procedures, as a result of which they remained in detention.", "132. Further, the applicants submitted that in spite of the fact that the AWAS procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The only reference to age- assessment procedures was that in the Government ’ s policy document and subsidiary legislation (see Relevant domestic law below). They considered that nearly eight months to reach a determination on age was unjustifiable, and had an impact on the amount of time spent in detention (irrespective of the result of that process).", "133. The applicants claimed that the Age- Assessment Procedure has often been criticised, as it is plagued by delays and by a lack of adequate procedural guarantees, including lack of information about the procedure followed and the possibility of appeal. No reasons are ever given for decisions and there is no real possibility to challenge the decision taken by the AAT. In addition, migrants undergoing Age- Assessment Procedures are detained throughout the procedures, usually in centres with adults without any special consideration for the fact that they are minors. They referred to the 2012 report of Human Rights Watch entitled ‘ Boat - ride to Detention: Adult and Child Migrants in Malta ’ [2].", "134. Furthermore, the applicants submitted that they had not been kept in conditions which were appropriate for minor asylum seekers, and that they had no access to procedural safeguards.", "(b) The Government", "135. The Government submitted that the applicants ’ deprivation of liberty was a consequence of their unauthorised entry and pending the examination of their asylum application, thus in line with the first limb of the provision. Once they resulted to be minors, they had been released. They noted that practically all immigrants reaching Malta did not carry documents and thus ascertaining their identities upon entry was a lengthy process which dependent on the cooperation of the migrants themselves. Moreover, the large number of undocumented migrants constituted a huge and entirely justified security concern for Malta.", "136. The Government considered that the detention was carried out in good faith, as the centre at issue had been set up especially for that purpose, and the detention had fulfilled all the conditions indicated by the Court in Saadi v. the United Kingdom [GC] (no. 13229/03, ECHR 2008). They also considered that detention was based in law and was not discriminatory, nor was it applied across the board.", "137. They further noted that age assessment of persons who were quite young was fast tracked as in such cases there was little difficulty in assessing the age. In straightforward cases release from detention was effected within a maximum of two weeks from arrival. On the other hand with teenagers close to the age of adulthood, the procedure involved more steps and thus inevitably took longer. The procedure involved the holding of interviews with AWAS officials, and if they were inconclusive a Further Age Verification (FAV) test which consists of an X-ray of the hand and wrist bones and which, according to the Government, gives accurate results. At the same time the Government also admitted that the test had a margin of error of two years.", "138. The Government submitted that in 2013 567 individuals had claimed to be unaccompanied minors and most of them had required referral to the FAV test. Thus, any delay in the examination of the applicants ’ request was as a result of this huge influx. Moreover, one had to bear in mind the small size of the island and its limited resources, which sometimes resulted in a waiting list to carry out certain tests. They further noted that out of the 567 individuals, only 274 were ruled to be minors.", "2. The Court ’ s assessment", "139. The Court refers to its general principles relevant to the present case as reiterated in Mahamad Jama (cited above, §§ 136-40).", "140. It is noted that the applicants do not complain about the lawfulness and compliance with Article 5 of their detention between their arrival and the date when they applied for asylum (see paragraph 1 29 above, in primis ).", "141. As to the subsequent period the Court observes that the applicants had been detained in accordance with the provisions of the Immigration Act (Articles 5 and 14(2), Chapter 217 of the Laws of Malta). While expressing reservations about the quality of all the applicable laws seen together in such context, the Court has already accepted that in cases similar to those of the applicants, the detention had a sufficiently clear legal basis, and that up to the decision on an asylum claim, such detention can be considered to fall under the first limb of Article 5 § 1 (f), namely to “prevent effecting an unauthorised entry” (see Suso Musa, cited above, § 99 and Mahamed Jama, cited above, § 144). There is no reason to find otherwise in the present case.", "142. It remains to be determined whether the detention in the present case was not arbitrary, namely whether it was carried out in good faith; whether it was closely connected to the ground of detention relied on by the Government; whether the place and conditions of detention were appropriate and whether the length of the detention exceeded that reasonably required for the purpose pursued.", "143. The Court has already noted a series of odd practices on the part of the domestic authorities when dealing with immigrant arrivals and subsequent detentions and it expressed its reservations as to the Government ’ s good faith in applying an across-the-board detention policy (save for specific vulnerable categories) and the by-passing of the voluntary departure procedure (see Suso Musa, cited above § 100 and Mahamed Jama, cited above, § 146 ) - reservations which it maintains, noting that the two practices persisted in the present case (see paragraphs 7 and 10 above in connection with the first applicant, and paragraphs 12 and 15 with the second applicant ).", "144. Nevertheless, the focus of the applicants ’ complaint concerns the fact that they were detained despite the fact that at the time they had claimed to be minors (and later found to be so). The Court reiterates that the necessity of detaining children in an immigration context must be very carefully considered by the national authorities (see Mahamed Jama, cited above, § 147). It is positive that in the Maltese context, when an individual is found to be a minor, the latter is no longer detained, and he or she is placed in a non-custodial residential facility, and that detention of minors should be no longer than what is absolutely necessary to determine their identification and health status (see paragraphs 31 and 36 above). An issue may however arise, inter alia, in respect of a State ’ s good faith, in so far as the determination of age may take an unreasonable length of time - indeed, a lapse of various months may also result in an individual reaching his or her majority pending an official determination (ibid. ).", "145. The Court is, on the one hand, sensitive to the Government ’ s argument that younger looking individuals are fast tracked, and that the procedure is lengthier only in cases of persons close to adulthood, as well as their statement that in 2013 out of 567 individuals, only 274 were ruled to be minors ( in 2012 only forty-six turned out to be minors out of seventy ‑ five ‑ see Mahamed Jama, cited above, § 148). The Court observes that, as noted in Mahamed Jama, cited above, less than 10% of arrivals claimed to be minors in 2012 (that is when the applicants started their age ‑ assessment procedure). In this connection, the Court considers that despite the fact that “borderline” cases may require further assessment, the numbers of alleged minors per year put forward by the Government cannot justify a duration of more than seven months to determine the applicants ’ claims. Indeed, the Government have not explained why it was necessary for the first applicant in the present case to wait for a few weeks for his first age - assessment interview (see paragraph 18 above) and to wait for around seven months to have a decision following a standard medical test. The Court notes that during this time the first applicant remained in detention, despite having been told orally that he had been found to be a minor six months before (see paragraph 18). Similarly the Government have not explained why, following his interview, the second applicant had to wait for five months to have the FAV test and to wait for another two and a half months for such a decision, and therefore for his release under a care order. Indeed, in the present case it transpires that in October 2012 the authorities were already aware that the first applicant was a minor, and yet he remained in detention until a care order was issued on 19 April 2013, while the second applicant remained in detention for at least another month after his age was determined. In this connection the Court notes that Government policy clearly states that vulnerable people are exempt from detention and that unaccompanied minors are considered as a vulnerable category (see paragraphs 30 and 31 above).", "146. It follows that, even accepting that the detention was closely connected to the ground of detention relied on, namely to prevent an unauthorised entry, and in practice to allow for the applicants ’ asylum claim to be processed with the required prior age assessment, the delays in the present case, particularly those subsequent to the determination of the applicants ’ age, raise serious doubts as to the authorities ’ good faith. A situation rendered even more serious by the fact that the applicants lacked any procedural safeguards (as shown by the finding of a violation of Article 5 § 4, at paragraph 124 above), as well as the fact that at no stage did the authorities ascertain whether the placement in immigration detention of the applicants was a measure of last resort for which no alternative was available (see, mutatis mutandis, Popov, cited above, § 119).", "147. Moreover, as to the place and conditions of detention, the Court has already found that the situation endured by the applicants as minors, for a duration of eight months, was in breach of Article 3 of the Convention.", "148. In conclusion, bearing in mind all the above, the Court considers that in the present case the applicants ’ detention was not in compliance with Article 5 § 1. Accordingly, there has been a violation of that provision.", "V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION", "149. The applicants further complained under Article 5 § 2 that the Return Decision and Removal Order, provided to them in English, a language they did not understand, did not contain sufficient information enabling them to challenge their detention. The provision reads as follows:", "“ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”", "150. The Government submitted that the complaint was outside the six ‑ month limit, in so far as the applicants had been informed of the reasons of their detention on 16 and 31 August 2012 respectively, while they lodged their application only on 17 April 2013, which is eight months after the alleged violation.", "151. Relying on their submissions concerning non-exhaustion of domestic remedies, the applicants reiterated that migrant detainees had difficulties instituting judicial proceedings, and in consequence they submitted that they were not in a position to take action regarding this complaint within the six-month period prescribed by law.", "152. The Court notes that in the absence of a remedy (see paragraph 123 above), in principle, the six-month time-limit must be calculated from the date of the omission complained of (see Aden Ahmed, cited above, § 69, and Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016 ).", "153. Even assuming that in the early stages of their detention the applicants were unable to contest such a measure because of their inability to understand the factual circumstances and their lack of knowledge of the English language, the Court observes that no specific reasons have been brought to the Court ’ s attention, explaining why they were able to bring proceedings around eight months after their arrival and subsequent detention, but not two months earlier, in order to comply with the six-month rule (see Mahamed Jama, cited above, § 166).", "154. In such circumstances the Court considers that, the applicants having been informed of the reasons of their detention on 16 and 31 August 2012 respectively and having lodged their application on 17 April 2013, the complaint is inadmissible for non-compliance with the six -month rule set out in Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "155. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "156. The applicants claimed 50,00 0 euros (EUR) each in respect of non ‑ pecuniary damage, as a result of the violations of Article 3 and 5 in the present case.", "157. The Government argued that the claims made by the applicants were excessive, and noted that such awards were made by the Court only in cases of excessive beatings by the authorities and other serious Article 3 violations. They considered that a sum of EUR 3,000 would suffice in non ‑ pecuniary damage, given the circumstances of the case.", "158. The Court notes that it has found a violation of Articles 3, 5 § 1 and 5 § 4 in the present case, and therefore awards the applicants EUR 12,000 each, in respect of non-pecuniary damage.", "B. Costs and expenses", "159. The applicants also each claimed EUR 4,000 for costs and expenses incurred before the Court. The sum corresponded to sixty hours of legal work at an hourly rate of EUR 60, as well as clerical costs of EUR 400.", "160. The Government submitted that the award for costs and expenses should not exceed EUR 2,000 jointly.", "161. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the documents in its possession, the Court considers it reasonable to award the sum of EUR 4,000 jointly, covering costs for the proceedings before the Court.", "C. Default interest", "162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicants were born in 1956, 1963, 1985, 1995 and 2001 respectively and live in Čakovec. The first and second applicants are husband and wife and the third to fifth applicants are their children.", "5. During 2004 M.T., the first and second applicants ’ daughter and the third to fifth applicants ’ sister, entered into a relationship with a certain M.M. They started living together with the applicants in their home. On 1 March 2005 they had a child, V.T. Soon afterwards M.M. had a series of disputes with the members of the household and often expressed verbal threats against M.T., which resulted in him moving out of the house in July 2005. On 4 January 2006 the Čakovec Social Welfare Centre ( Centar za socijalnu skrb Čakovec – hereinafter “the Welfare Centre”) filed a report with the Međimurje Police Department ( Policijska uprava međimurska ) stating, inter alia, that on 2 January 2006 M.M. had come to the Centre and claimed that he had a bomb and would “throw it at his former wife [meaning M.T.] and child”.", "6. On 5 January 2006 M.T. lodged a criminal complaint with the Čakovec State Attorney ’ s Office against M.M. She alleged that on a number of occasions since July 2005 M.M. had come to her parents ’ house where she also lived with her daughter and had threatened to kill her and their daughter with a bomb unless she agreed to come back to him. He had also often made telephone calls and sent SMS messages to her by mobile phone repeating the same threats.", "7. On 3 February 2006 M.M. was detained following the instigation of the criminal proceedings against him in the Čakovec Municipal Court ( Općinski sud u Čakovcu ) on 27 January 2006. A psychiatric opinion obtained during the proceedings stated that on 2 January 2006 M.M. had claimed before the employees of the Welfare Centre that he had a bomb and that his threats had been meant seriously. He had repeated the same claim on 19 January 2006 before police officers from the Međimurje Police Department. The relevant parts of the conclusions of the report read as follows:", "“1. Defendant M.M. is a person suffering from a profound personality disorder etiologically linked to innate malfunctioning of the brain and the highly unfavourable pedagogical circumstances of his childhood. Dg: mixed personality disorder ...", "2. In the context of the said personality disorder the defendant ’ s reaction to a problematic situation was an inadequate and pathological defence mechanism with inflated ideas and related activities. These inflated ideas do not amount to a mental illness.", "3. I have not found elements of either permanent or temporary innate mental illness, diminished intellectual capacity or epilepsy which might be linked to the criminal offences with which the defendant is charged.", "4. He is not addicted to alcohol, drugs or other substances ...", "5. In view of what has been said under 1, 2 and 3 and in view of all the other information collected so far in connection with the criminal offences, I consider that his ability to wilfully control and understand the meaning and consequences of his act tempore criminis was diminished, but that [he was not] completely unaccountable.", "6. There is a strong likelihood that he will repeat the same or similar criminal offences. In order to prevent this, I recommend that the court, apart from the other measures, order compulsory psychiatric treatment with a predominantly psychotherapeutic approach with the aim of developing an ability to resolve difficult situations in life in a more constructive manner.”", "8. On 15 March 2006 the Municipal Court found M.M. guilty of threatening M.T. on several occasions during the period between July and 30 December 2005 both in front of her family house and at the parking lot near the city graveyard when M.T. had been alone. He had shouted threats that he would kill her, himself and their child with a bomb; at the Welfare Centre on 2 January 2006 he had said that his threats had been meant seriously, that he actually had a bomb and that he would kill himself and the child with the bomb on the child ’ s first birthday on 1 March 2006. He was sentenced to five months ’ imprisonment and a security measure of compulsory psychiatric treatment was ordered during his imprisonment and afterwards as necessary. In ordering the defendant ’ s compulsory psychiatric treatment the court relied entirely on the findings of the psychiatric report. The relevant part of the judgment read as follows:", "“ ... throughout the whole period in question the defendant had been telling the victim that he would throw a bomb at himself and their child as well as her [the victim] if she happened to be around. These events came to a head on 30 December. The defendant did not refrain from mentioning a bomb either in front of the Welfare Centre ’ s employees or a policeman. Furthermore, he said in front of the policemen that he would blow himself and the child up with a bomb on the child ’ s first birthday. Therefore, there is no doubt that both the victim and the witnesses understood these threats as being meant seriously ... Thus, the victim ’ s fears for her own as well as her child ’ s safety were justified ...", "...", "... all conditions for ordering a security measure [of compulsory psychiatric treatment] have been fulfilled since the defendant committed a crime while his capacity for understanding was diminished and it is likely that he will repeat the same or similar offence. It is necessary to order compulsory psychiatric treatment during his prison term and after his release. The treatment shall take a predominantly psychotherapeutic approach, as recommended by the expert, in order to develop [the defendant ’ s] ability to address difficult situations in life in a more constructive manner.”", "9. On 28 April 2006 the Čakovec County Court ( Županijski sud u Čakovcu ) reduced the security measure to the duration of M.M. ’ s prison sentence and upheld the remaining part of the judgment. The relevant part of the judgment reads as follows:", "“ ... there is no doubt that frequent murder threats by ... a bomb should by any objective test have been understood as meant seriously and that [such threats] would cause a real sense of disquiet, fear and anxiety in an average person, in particular in a situation where the victim has known the perpetrator as an aggressive person out of control, as is the case with the victim in the present case.", "There is also no doubt that ... the defendant ’ s threats extended throughout a period of half a year during which the victim feared, owing to continued threats, not only for her own safety but also for the safety and wellbeing of her child which was not even a year old at the time. The victim was thus undoubtedly put in a difficult and unenviable position where she feared daily for her and her daughter ’ s life, which was confirmed not only in her testimony but also the fact that she sought assistance from the competent authorities [such as] the police, the Social Welfare Centre and the State Attorney.", "...", "While examining ... the impugned judgment under Article 379 paragraph 1(2) of the Code of Criminal Procedure this appellate court has established that the first-instance court violated the statutory provisions to the detriment of the defendant when it ordered that a security measure of compulsory psychiatric treatment should continue after the defendant ’ s release [from prison], which is contrary to Article 75 of the Criminal Code according to which compulsory psychiatric treatment may last as long as the reasons for its application exist but no longer than the prison term.", "...", "... this court does not agree with the defendant ’ s argument that in his case the purpose of punishment would be achieved by a suspended sentence, especially in view of the fact that the defendant ... did not show any self-criticism as regards his acts or any feelings of remorse for what he had said ... ”", "10. M.M. served his sentence in Varaždin Prison and was released on 3 July 2006. On 15 August 2006 he shot M.T., her daughter V.T. and himself. Before the shooting he was spotted by M.T. ’ s neighbour carrying an automatic gun and leaving his bicycle in the adjacent woods. The neighbour immediately called the police. The police arrived at the scene twenty minutes later, just after the tragic event.", "11. On 15 August 2006 the police interviewed M.T. ’ s neighbour I.S. who had seen M.M. approaching M.T. ’ s house immediately before the critical event. At the request of the police, on 17 August 2006 an investigating judge of the Varaždin County Court issued a search warrant of a flat and a vehicle belonging to a certain M.G. who was suspected of having procured weapons for M.M. The warrant was executed the same day, but no connection was established between M.G. and the weapons used by M.M.. The investigating judge has not taken any further steps in that case.", "12. On 18 August 2006 the police submitted a report to the Čakovec County State Attorney ’ s Office detailing the circumstances of the tragic event.", "13. On 28 November 2006 the State Attorney ’ s Office dismissed a criminal complaint against M.M. for murdering M.T. and V.T. on the ground that he was dead. It is unclear who lodged that complaint, but a copy of this decision was sent to the applicants. In a letter of the same day the State Attorney ’ s Office asked the Međimurje Police Department to collect all information concerning psychiatric treatment of M.M. in Varaždin Prison. The relevant part of a report drawn up on 13 December 2006 by the Varaždin prison authorities reads as follows:", "“M.M. had been kept in detention on remand in Varaždin Prison from 3 February to 22 May 2006 when he was sent to serve his prison term ... which expired on 3 July 2006.", "A psychiatric examination of M.M. carried out during his stay in detention showed that he suffered from a mixed personality disorder which derived from innate malfunctioning of the brain and the unfavourable pedagogical circumstances of his childhood. In the same opinion the expert psychiatrist recommended that compulsory psychiatric treatment be ordered with a predominantly psychotherapeutic approach with the aim [that M.M.] develop an ability to resolve difficult situations in life in a more constructive manner.", "While M.M. served his prison term, intensive treatment consisting in frequent individual conversational sessions was envisaged, in accordance with the individual programme of serving a prison term. He rarely came for the sessions of his own accord and was therefore, in [order to satisfy] the need for treatment, requested to do so by the staff. ...", "While in prison M.M. saw the prison doctor on five occasions, sometimes of his own accord, sometimes at the doctor ’ s call. He did not insist on his psychiatric therapy and therefore his treatment was based, as recommended by the expert, on intensive psychotherapeutic treatment by the staff, the prison governor and the others who talked to him. He was a highly introverted person, so his true personality could not be detected in detention or prison conditions.”", "14. On 11 December 2006 the Međimurje Police Department interviewed the Varaždin prison governor, P.L. The relevant part of a report on the interview drawn up on 2 December 2006 reads as follows:", "“The above-mentioned is the governor of Varaždin Prison and he states that the late M.M. served his prison term in Varaždin Prison from 3 February to 3 July 2006 ...", "While in prison M.M. underwent psychiatric treatment pursuant to the expert opinion and recommendation. The treatment was based on intensive psychotherapeutic treatment of M.M. consisting of conversational sessions between M.M. and the prison staff, himself [meaning the governor] and the prison doctor. During the treatment M.M. neither received nor asked for any pharmacotherapy. It was also established that M.M. was a very introverted person who did not wish to cooperate in the treatment.", "During his stay in the prison M.M. saw the prison doctor on five occasions in connection with some other problems, that is to say, illnesses.", "He further maintains that there are no internal regulations on the implementation of security measures and that all treatment is carried out in accordance with the Enforcement of Prison Sentences Act.”", "15. According to the Government, since no oversights on the part of the persons in charge of the execution of the M.M. ’ s prison term and security measure had been established, the investigation was concluded, although no formal decision to that effect has been adopted.", "16. M.M. ’ s medical record from prison, submitted by the Government, does not indicate any psychiatric or psychotherapeutic treatment.", "17. On 6 November 2006 the applicants submitted a proposal to the State Attorney for a settlement of their claim for non-pecuniary damages related to the deaths of M.T. and V.T. They alleged failures by the competent authorities to take adequate steps to protect the lives of M.T. and V.T. and inadequacy of the investigation into the circumstances of their deaths. They sought 1,105,000 Croatian kunas (HRK) in compensation and HRK 13,481 for costs. They received no reply. Under section 186(a) of the Civil Procedure Act, where such a request has been refused or no decision has been taken within three months of its submission the person concerned may file an action with the competent court. The applicants have not brought a civil action." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "18. Article 21 of the Constitution ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads as follows:", "“Every human being has the right to life.", "... ”", "19. The relevant part of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads as follows:", "Section 38", "“Everyone has the right to request the institution of proceedings to review the constitutionality of statutes ...”", "Section 55", "“(1) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the Constitution ... ”", "20. The relevant part of Article 75 of the Criminal Code ( Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003 and 105/2004) reads as follows:", "“The security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence.", "The security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence.", "Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years.", "... ”", "21. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows:", "Article 174(2)", "“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ... ”", "Article 177", "“Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to indentifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings ... ”", "Article 187", "“(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence.", "(2) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ... ”", "22. The relevant provisions of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette no. 35/2005) read as follows:", "Section 19", "“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.", "(2) The right to respect for one ’ s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one ’ s name and privacy of personal and family life, freedom et alia.", "... ”", "Section 1100", "“(1) Where a court finds it justifiable, on account of the seriousness of an infringement of the right to respect for one ’ s personal integrity and the circumstances of a particular case, it shall award non-pecuniary damages, irrespective of compensation for pecuniary damage or where no such damage exists.", "... ”", "Section 1101", "“(1) In the case of death or particularly serious invalidity of a person the right to non-pecuniary damages shall vest in his or her close family members (spouse, children and parents).", "(2) Such damages may be awarded to the siblings, grandparents, grandchildren and a common-law spouse where these persons and the deceased permanently shared the same household.", "„", "23. Section 13 of the State Administration Act ( Zakon o ustrojstvu državne uprave, Official Gazette nos. 75/1993, 48/1999, 15/2000 and 59/2001) reads as follows:", "“The Republic of Croatia shall compensate damage caused to a citizen, legal entity or other party by unlawful or wrongful conduct of a State administration body, a body of local self-government and administration ... ”", "24. The relevant part of section 186(a) of the Civil Procedure Act ( Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 reads as follows:", "“A person intending to bring a civil suit against the Republic of Croatia shall beforehand submit a request for a settlement with the competent State Attorney ’ s office.", "...", "Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.", "... ”", "25. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:", "PURPOSE OF A PRISON TERM", "Section 2", "“The main purpose of a prison term, apart from humane treatment and respect for personal integrity of a person serving a prison term, ... is development of his or her capacity for life after release in accordance with the laws and general customs of society.”", "PREPARATION FOR RELEASE AND ASSISTANCE AFTER THE RELEASE", "Section 13", "“During the enforcement of a prison sentence a penitentiary or prison shall, together with the institutions and other legal entities in charge of assistance after release, ensure preparation of a prisoner for his or her release [from prison].”", "INDIVIDUAL PRGRAMME FOR THE ENFORCEMENT OF A PRISON TERM", "Section 69", "(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety acts and measures aimed at organising the time spent during the prison term according to the character traits and needs of a prisoner and the type and possibilities of a particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.", "(2) The enforcement programme shall be designed by a prison governor on the proposal of a penitentiary or a prison ’ s expert team ...", "(3) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... )", "... ”", "HEALTH PROTECTION", "Section 103", "“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ”", "26. Section 22 of the State Attorney Act ( Zakon o državnom odvjetništvu, Official Gazette 75/1995) reads as follows:", "“(1) The State Attorney ’ s Office is entitled to compensation for the costs of representation before the courts and other competent bodies according to the regulations on lawyers ’ fees.", "(2) Funds obtained as the costs of representation are paid into the State ’ s budget.”", "27. As regards civil proceedings for damages the Government submitted several decisions of the Supreme Court expressing its opinion on the responsibility of the State for damage caused by the administrative authorities.", "The relevant parts of decision no. Rev 2203/1991-2 of 30 December 1991 read as follows:", "“The employees of Open Penitentiary V.-P. and of L. State Prison caused the damage in question by their unlawful and wrongful conduct in allowing D.P. to escape from the penitentiary instead of preventing his escape by the use of force if necessary (sections 175 and 176, paragraph 140, of the Enforcement of Penal and Misdemeanours Sanctions Act, Official Gazette nos. 21/74 and 39/74).", "Enforcement of a sentence, and in particular the enforcement of a prison term, fulfils the purpose of punishment defined by law which includes, inter alia, preventing a perpetrator from committing [a further] criminal offence by restricting his freedom of movement. In the circumstances of the present case the employees of the above-mentioned penitentiaries, for whose conduct the defendant [the State] is liable, failed to [prevent the escape] of a convict who repeated the same act of violence (in even more serious circumstances) as the criminal offence for which he had been convicted and placed in prison ... The fact that he committed a criminal offence of robbery and caused damage to the plaintiff and numerous other persons by acts of violence during his escape shows that he is a danger to society who should have been prevented from committing criminal offences by being kept in prison. The same transpires from his previous criminal record ...", "Therefore, in the case at issue there is a legally relevant causal link between the unlawful and wrongful conduct of the defendant ’ s employees, the escape and the harmful act ... which all lead to the defendant ’ s liability.”", "The relevant part of decision no. Rev 186/04-2 of 10 January 2006 reads as follows:", "“Pursuant to section 13 of the State Administration Act (Official Gazette nos. 75/93, 48/99, 15/00 and 59/01) the Republic of Croatia is obliged to compensate damage resulting from unlawful or wrongful conduct of the State administration bodies, bodies of local self-government and administration ...", "...", "Conduct or an omission that is against a law or any other regulation amounts to an unlawful act ... if there exists an intent to cause damage to the rights or interests of third persons or acceptance of that outcome .”", "28. The applicants submitted several decisions of the Supreme Court concerning the same issue.", "The relevant part of decision no. Rev 713/1998 of 13 September 2000 reads as follows:", "“Conduct or an omission that is against a law or any other regulation amounts to an unlawful act only if there exists an intent to cause damage to the rights and interests of a third person or acceptance of that outcome. The same is true in respect of conduct or a failure to act, contrary to the common or prescribed manner of acting, amounting to wrongful conduct.”", "The relevant part of decision no. Rev 218/04-2 of 27 October 2004 reads as follows:", "“The plaintiffs ’ claim for damages against the Republic of Croatia is justified only where the statutory conditions have been fulfilled, namely, that the damage is a consequence of unlawful or wrongful conduct of a person or a body performing [civil] service. Unlawful conduct means acting against a law or any other regulation or an omission to apply a regulation with intent to cause harm to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act that is contrary to the common or prescribed manner of acting and from which it can be concluded that there has been an intent to cause harm to the rights and interests of a third person or acceptance of that outcome.”", "The relevant part of decision no. Rev 730/04-2 of 16 November 2005 reads as follows:", "“ ... unlawful conduct means acting against the law or omitting to apply statutory provisions with intent to cause damage to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act, contrary to the common or prescribed manner of acting ... The burden of proof is on the plaintiff. ... The plaintiff claiming damages is obliged to prove the existence of damage, a harmful act by the defendant (in this case unlawful or wrongful conduct of the State administration bodies within the meaning of section 13 of the State Administration Act) and a causal link between the harmful act and the actual damage.”", "The relevant part of decision no. Rev 257/06-2 of 18 May 2006 reads as follows:", "“The purpose of section 13 of the State Administration Act is [to make] the State liable for the damage caused by consciously acting against the law with intent to cause damage to another.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "29. The applicants made a twofold complaint under Article 2 of the Convention. They contended firstly that the State had failed to comply with their positive obligations in order to prevent the deaths of M.T. and V.T. and secondly that the State had failed to conduct a thorough investigation into the possible responsibility of their agents for the deaths of M.T. and V.T.", "Article 2 of the Convention reads as follows:", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "A. Admissibility", "The parties ’ submissions", "30. The Government argued that the applicants had several remedies at their disposal which they had failed to exhaust. Firstly, they had failed to lodge a criminal complaint against any person they held responsible for the deaths of M.T. and V.T., which would have enabled them to propose evidence and investigating measures to be taken. Had they done so, the competent State Attorney ’ s Office would have issued a reasoned decision on their complaint. Even if such a complaint had been dismissed, the applicants could have then continued the criminal prosecution of their own motion.", "31. Secondly, the applicants could have brought a civil action for compensation against the State under sections 1100 and 1101 of the Civil Obligations Act and under the Convention, which was directly applicable in Croatia.", "32. Lastly, the fact that the State ’ s liability existed only where a causal link between a harmful act and the actual damage was proven was a universally accepted principle of liability for damages that was not specific to the Croatian legal system.", "33. The applicants contended that under domestic law the third to fifth applicants had no right to seek compensation for the death of V.T. A civil action for compensation from the State, which was a possibility open to all the applicants in respect of the death of M.T. and to the first and second applicants in respect of the death of V.T, would have had no prospect of success. That was because the requirements established by the Supreme Court, namely, that the acts of the responsible authorities had to be unlawful and that they had to have acted with intent to cause damage to third persons or at least acceptance of that outcome would have been impossible to prove. Furthermore, if they had lost they would have had to bear the costs of representation of the State in the proceedings by a State Attorney ’ s Office, which was entitled to the fees set out in the Scale of Lawyers ’ Fees. According to the standards of the Supreme Court ’ s case-law, the applicants could have claimed about HRK 800,000 in compensation. As the costs of representation of the State were to be assessed according to the value of the claim, they would have amounted to about HRK 80,000. Thus they would have exceeded the applicants ’ joint annual income, which was about HRK 14,000 since the only member of their family living in the same household who had an income was the first applicant. In view of the fact that their possible claim had no prospect of success, the risk of having to bear the State Attorney ’ s fees, from which they had no right of exemption, was very high. Bearing these costs would have financially ruined them, which was why they had not lodged a civil action against the State.", "34. As to the Government ’ s objection that they should have lodged a criminal complaint against the persons they considered responsible for the deaths of their close relatives, the applicants argued that all information known to them had also been known to the relevant State authorities and that in those circumstances it had been incumbent on the authorities to take appropriate steps to investigate the deaths of M.T. and V.T.", "The Court ’ s assessment", "35. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74 and 75, ECHR 1999 ‑ V).", "36. Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the complaints invoked and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, § 68).", "37. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, Series A no. 200, § 34). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, Series A no. 40, § 35). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, § 69).", "38. In respect of a substantive complaint of failure of the State to take adequate positive measures to protect a person ’ s life in violation of Article 2, the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy (see, E. and Others v. the United Kingdom, no. 33218/96, § 110 and, mutatis mutandis, Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I).", "39. The Court notes at the outset that the newly introduced sections 1100 and 1101 of the Civil Obligations Act, which entered into force on 1 January 2006, provide a possibility of seeking compensation in connection with the death of one ’ s spouse, child or parent and that compensation may also be awarded to the siblings, grandparents, grandchildren and a common-law spouse where these persons and the deceased permanently shared the same household. The Court therefore finds that under domestic law the third to fifth applicants, being her aunts and uncles, have no right of compensation for the killing of V.T. It follows that the Government ’ s objection in respect of the third to fifth applicants in connection with the death of V.T. must be rejected.", "40. As to the first and second applicants ’ right of compensation for the deaths of both M.T. and V.T. and the third to fifth applicants ’ right of compensation for the death of M.T., the Court notes that sections 1100 and 1101 of the Civil Obligations Act do provide a legal ground for seeking compensation from the State. The Court will now examine whether the Government have shown that a civil action for compensation against the State is a remedy that has to be exhausted in the circumstances of the present case.", "41. The Court notes that after M.M. had killed M.T. and V.T. no responsibility of the State officials involved was established in respect of the relevant authorities ’ duty to protect the lives of the victims. In these circumstances it might be said that a civil action for damages against the State does not have much prospect of success, in particular in view of the requirement under domestic law and practice that the State ’ s liability be engaged only in the event of unlawful conduct on the part of the authorities or unlawful failure to act and intent on the part of the authorities to cause damage to a third person or acceptance of that outcome.", "42. However, and notwithstanding the chances of success of a potential civil action concerning the lawfulness of the acts of the relevant authorities, the Court notes that in any event the issue here is not a question of whether the authorities acted unlawfully or whether there was any individual responsibility of a State official on whatever grounds. Much more broadly, the central question of the present case is the alleged deficiencies of the national system for the protection of the lives of others from acts of dangerous criminals who have been identified as such by the relevant authorities and the treatment of such individuals, including the legal framework within which the competent authorities are to operate and the mechanisms provided for. In this connection the Court notes that the Government have not shown that these issues, and in particular the applicants ’ complaint under Article 2 of the Convention related to the insufficiencies of domestic law and practice preceding the deaths of M.T. and V.T., could be examined in any proceedings relied on by the Government.", "43. As to the Government ’ s argument that after the killings of M.T. and V.T. the applicants could also have lodged a criminal complaint, the Court notes that a step in that respect was taken by an investigating judge of the Varaždin County Court when, on 17 August 2006, he ordered a search of a flat and vehicle of a certain M.G. who had been suspected of having procured weapons to M.M. and by the Čakovec State Attorney ’ s Office when, on 28 November 2006, it asked the Međimurje Police Department to collect all information concerning M.M. ’ s psychiatric treatment while he had been serving his prison sentence. However, those steps did not lead to any criminal or other proceedings against any of the persons involved. The Court cannot see how an additional criminal complaint about the same issues lodged by the applicants might have led to a different outcome. In this connection the Court reiterates that in cases concerning a death in circumstances that might give rise to the State ’ s responsibility the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, McKerr v. the United Kingdom, no. 28883/95, § 111, ECHR 2001-III, and Slimani v. France, no. 57671/00, § 29, ECHR 2004 ‑ IX (extracts) ).", "44. It follows that the remedies proposed by the Government did not have to be exhausted. In making this conclusion, the Court has taken into consideration the specific circumstances of the present case as well as the fact that a right as fundamental as the right to life is at stake (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, Series A no. 324, § 147) and that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I). Accordingly, the Government ’ s objection has to be rejected.", "45. The Court finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "The parties ’ arguments", "46. The applicants complained that the State had failed to comply with their positive obligation because, although it had been well known to the authorities that M.M. ’ s threats against M.T. and V.T. had been serious, they had failed to order and carry out a search of his premises and vehicle in the course of the first set of criminal proceedings against him in which he had been charged with making serious threats against MT. and V.T. They argued that, before his release from prison, the relevant authorities had failed to properly administer his psychiatric treatment and evaluate his mental condition and the likelihood that he would carry out his threats. They alleged insufficiencies of the regulation concerning the enforcement of a prison term and also maintained that the domestic law was defective because an accused found guilty of a crime could be given compulsory psychiatric treatment only for the duration of his or her prison term. The applicants also complained that the domestic authorities had failed to conduct a proper and thorough investigation into the State ’ s possible responsibility for the deaths of their close relatives.", "47. The Government argued that the domestic authorities had taken M.M. ’ s threats seriously and had for that reason remanded him in custody, where he had stayed during the whole trial. He had been sentenced to a prison term commensurate with the seriousness of his conviction and within the statutory framework of the offence he had been charged with. Furthermore, his compulsory psychiatric treatment had been ordered during his prison term, as provided for under domestic law.", "48. As to their procedural obligation under Article 2, the Government contended that the competent State Attorney ’ s Office had ordered the police to collect relevant information concerning the deaths of M.T. and V.T. The police had, inter alia, interviewed the prison governor, and this had shown how the measure of compulsory psychiatric treatment had been administered. The State Attorney ’ s Office had not found that there had been any failure on the part of the prison authorities amounting to a criminal offence. As to their participation in the investigation, the applicants had failed to lodge a separate criminal complaint and had not shown that they had ever sought to be informed about the investigation.", "The Court ’ s assessment", "a. Substantive aspect of Article 2 of the Convention", "General principles", "49. The Court reiterates that Article 2 enjoins the State to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, Reports of Judgments and Decisions 1998-III, § 36). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII).", "50. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the Court is also careful, when considering positive obligations, not to interpret Article 2 in such a way as to impose an impossible or disproportionate burden on authorities (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, § 116). Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.", "51. A positive obligation will arise where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 55, ECHR 2002-III; and Bromiley v. the United Kingdom (dec.), no. 33747/96, 23 November 1999).", "Application of these principles to the present case", "52. The Court has examined firstly whether the relevant authorities were or should have been aware that M.M. presented a risk for the lives of M.T. and V.T. The Court notes that the competent State Attorney ’ s Office instituted criminal proceedings against M.M. on charges of making serious threats against M.T. and V.T., which resulted in M.M. being found guilty as charged and sentenced to five months ’ imprisonment. The domestic courts established that M.M. had been making threats against M.T. and V.T. for a long period of time, namely, from July to December 2005. They found further that he had not refrained from repeating those threats both before the employees of the Čakovec Welfare Centre and the police, including his announcement that he was going to blow M.T. and V.T. up with a bomb on the latter ’ s first birthday, which was 1 March 2006. He repeatedly claimed that he was in possession of a bomb and could well have had other weapons. That these threats were taken by the domestic authorities as being meant seriously is shown by the fact that M.M. was sentenced to an unconditional prison term. Furthermore, a psychiatric examination of M.M. carried out in the course of the criminal proceedings established that he was suffering from a mixed personality disorder and was in need of compulsory psychiatric treatment in order to develop the ability to cope with difficult situations in life in a more constructive manner. It was established further that there was a danger that he would repeat the same or similar offences, which appears crucially important in the present case.", "53. The above findings of the domestic courts and the conclusions of the psychiatric examination undoubtedly show that the domestic authorities were aware that the threats made against the lives of M.T. and V.T. were serious and that all reasonable steps should have been taken in order to protect them from those threats. The Court will now examine whether the relevant authorities took all steps reasonable in the circumstances of the present case to protect the lives of M.T. and V.T.", "54. The Court firstly notes that although M.M. had mentioned on several occasions that he had a bomb, and could well have had other weapons, no search of his premises and vehicle was ordered in the course of the initial criminal proceedings against him. No such search was ordered and carried out, although the relevant authorities had been aware of his above statements as early as 4 January 2006, when the Čakovec Social Welfare Centre filed a report containing such allegations with the Međimurje Police Department.", "55. The Court notes further that a psychiatric report drawn up for the purposes of the criminal proceedings against M.M. stressed the need for continued psychiatric treatment in order to help him develop the capacity for coping with difficult situations in life in a more constructive manner. When the decision ordering his compulsory psychiatric treatment became final and enforceable following the adoption of the appellate court ’ s judgment of 28 April 2006, M.M. had already spent two months and twenty-five days in detention. Since he was sentenced to five months ’ imprisonment, it follows that his psychiatric treatment could only have lasted two months and five days before his release from prison. The Court considers that in such a short period M.M. ’ s psychiatric problems, in view of their gravity as established in the psychiatric examination carried out during the criminal proceedings against him, could hardly have been addressed at all.", "56. Moreover, the Government have failed to show that the compulsory psychiatric treatment ordered in respect of M.M. during his prison term was actually and properly administered. The documents submitted show that the treatment of M.M. in prison consisted of conversational sessions with the prison staff, none of whom was a psychiatrist. Furthermore, the Government have failed to show that an individual programme for the execution of M.M. ’ s prison term was designed by the Varaždin prison governor as required under section 69 of the Enforcement of Prison Sentences Act. Such individual programme in respect of M.M. takes on additional importance in view of the fact that his prison term was combined with a measure as significant as compulsory psychiatric treatment ordered by the domestic courts in relation to the serious death threats he had made in order to help him develop the capacity to cope with difficult situations in life in a more constructive manner.", "57. The Court notes further that the regulation concerning the enforcement of a measure of compulsory psychiatric treatment, namely the relevant provisions of the Enforcement of Prison Sentences Act, is of a very general nature. In the Court ’ s view, the present case shows that these general rules do not properly address the issue of enforcement of obligatory psychiatric treatment as a security measure, thus leaving it completely to the discretion of the prison authorities to decide how to act. However, the Court considers that such regulations need to be sufficient in order to ensure that the purpose of criminal sanctions is properly satisfied. In the present case neither the regulation on the matter nor the court ’ s judgment ordering M.M. ’ s compulsory psychiatric treatment provided sufficient details on the administration of this treatment", "58. Since no adequate psychiatric treatment was provided to M.M. in the prison there was also no assessment of his condition immediately prior to his release from prison with a view to assessing the risk that, once at large, he might carry out his previous threats against the lives of M.T. and V.T. The Court finds such a failure particularly striking given that his threats had been taken seriously by the courts and that the prior psychiatric report expressly stated that there was a strong likelihood that he might repeat the same or similar offences. In this connection the Court notes that the appellate court established in its judgment of 28 April 2006 that M.M. had not shown any self-criticism as regards his acts or any remorse for what he had said. Furthermore, the Court notes that M.M. said on several occasions that he had meant to kill M.T. and V.T. on the latter ’ s first birthday which was on 1 March 2006. In view of the fact that M.M. spent that day in prison, a fresh assessment of the threat he posed to the lives of M.T. and V.T. appears to have been all the more necessary before his final release.", "59. The Court also notes that the first instance court ordered a measure of compulsory psychiatric treatment against M.M. during his imprisonment and afterwards as necessary as recommended by the psychiatrist (see § 7 above). However, the appellate court reduced that measure to the duration of his prison term since under Croatian law there is no possibility of extending compulsory psychiatric treatment beyond a prison term for those in need of such treatment.", "60. In view of the above the Court considers that no adequate measures were taken to diminish the likelihood of M.M. to carry out his threats upon his release from prison (see Osman v. the United Kingdom, cited above, § 116).", "61. The facts of this case, as established above, are sufficient to enable the Court to find a violation of the substantive aspect of Article 2 of the Convention on account of failure of the relevant domestic authorities to take all necessary and reasonable steps in the circumstances of the present case to afford protection for the lives of M.T. and V.T.", "b. Procedural aspect of Article 2 of the Convention", "62. The Court reiterates that the obligation to protect life under Article 2 of the Convention requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, either by State officials or private individuals (see, mutatis mutandis, McCann and Others v. the United Kingdom, cited above, § 161, and Kaya, cited above, p. 329, § 105). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see, mutatis mutandis, Paul and Audrey Edwards, cited above, § 69). The authorities must take the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death, or identify the person or persons responsible, will risk falling foul of this standard. Whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention (see, for example, mutatis mutandis, Ilhan v. Turkey [GC], no. 22277/93, ECHR 2000-VII, § 63).", "63. In the present case it was clear from the beginning that the perpetrator of the acts in question was a private individual, M.M., and his responsibility in that respect has never been put into question. However, M.M. killed himself and therefore any further application of criminal law mechanisms in respect of him became futile.", "64. It now remains to be established whether in the circumstances of the present case the State had a further positive obligation to investigate the criminal responsibility of any of the State officials involved. The Court firstly reiterates that although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. The Court has already held that in the specific sphere of medical negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII and Tarariyeva v. Russia, no. 4353/03, § 75, ECHR 2006 ‑ ... (extracts) ). The same should apply in respect of the possible responsibility of State officials for the deaths occurring as a result of their negligence. However, the applicants ’ complaint in respect of the substantive aspect of Article 2 of the Convention is not whether there was any individual responsibility of a State official on whatever grounds. The Court considers that the central complaint concentrates on the deficiencies of the national system for the protection of the lives of others from acts of dangerous criminals who have been identified as such by the relevant authorities and the treatment of such individuals, including the legal framework within which the competent authorities are to operate and the mechanisms provided for.", "65. In view of the nature of the applicants ’ complaint under the substantive aspect of Article 2 of the Convention and the Court ’ s finding in this respect which imply that the procedures involved were necessarily insufficient from the standpoint of the substantive aspect of Article 2, the Court considers that there is no need for it to examine separately the applicants ’ complaint under the procedural aspect of Article 2 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "66. The applicants further complained that they had no effective remedy at their disposal in respect of their Article 2 complaints. They relied on Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "67. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "68. The Government argued that the applicants could have requested a criminal investigation into the deaths of M.T. and V.T. and also brought a civil action for compensation against the State under sections 1100 and 1101 of the Civil Obligations Act.", "69. In reply to the Government ’ s observations, the applicants submitted that there had been no need for them to lodge a separate criminal complaint because the authorities had been aware of all the facts surrounding the deaths of M.T. and V.T. As to the civil remedy relied on by the Government, they argued that it was not accessible to them.", "70. The Court notes at the outset that the applicant ’ s complaint under Article 13 of the Convention is linked to their complaints under Article 2 of the Convention, which are twofold (see paragraph 29 above). The Court proceeds by examining these two aspects of the alleged violation of Article 13 separately.", "71. As regards the applicant ’ s complaint that they had no effective remedy in respect of their complaint concerning the procedural aspect of Article 2 of the Convention, the Court considers that in view of its findings in respect of that aspect of Article 2, no separate issue is left to be examined under Article 13 of the Convention.", "72. As regards the applicant ’ s complaint that they had no effective remedy in respect of their allegations concerning the substantive violation of Article 2 of the Convention, the Court finds that what the applicants challenge is the whole system for the protection of the lives of persons from the acts of dangerous criminals, including the legal framework within which the competent national authorities are to operate. In the Court ’ s view, these are more questions of general policing in the national system for the prevention of crimes and not issues which could be properly addressed in any particular proceedings before the ordinary courts. It is not for an ordinary court to say whether the regulatory standards in operation are right or not, but to decide individual cases by applying the existing laws.", "73. In this connection the Court reiterates that Article 13 does not guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or equivalent domestic norms (see James and Others v. the United Kingdom, 21 February 1986, Series A no. 98, § 85 and Leander v. Sweden, 26 March 1987, Series A no. 116, § 77). In Croatia the Convention has been incorporated into the national legal system and the right to life is also guaranteed by the Constitution and there is a possibility of challenging the constitutionality of the laws before the Constitutional Court. However, the applicants ’ main complaint under the substantive aspect of Article 2 of the Convention is not that the existing laws and practices are unconstitutional but that they are deficient in view of the requirements of Article 2 of the Convention, a claim that cannot be challenged before the national courts, since it is for the legislators and politicians involved in devising general criminal policy to deal with such issues.", "74. However, the role of an international court for the protection of human rights is quite different from that of the national courts and it is for the former to examine the existing standards for the protection of the lives of persons, including the legal framework of a given State. In these circumstances the Court considers that after having established the State ’ s responsibility for the deaths of M.T. and V.T. by finding a violation of the substantive aspect of Article 2 of the Convention, no separate issue needs to be examined under Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "75. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "76. Each applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage.", "77. The Government deemed the applicants ’ claim for just satisfaction unsubstantiated and unfounded.", "78. The Court notes that it has found that the authorities, in relation to the death of the applicants ’ two close relatives breached the Convention. In these circumstances the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis and having regard to the awards made in comparable cases, it awards the applicants EUR 4 0,000 jointly under that head, plus any tax that may be chargeable to them.", "B. Costs and expenses", "79. The applicants also claimed HRK 9,150 for the costs and expenses incurred before the Court.", "80. The Government did not comment.", "81. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,300 for the proceedings before the Court, plus any tax that may be chargeable to the applicants.", "C. Default interest", "82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1955 and lives in İzmir.", "6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.", "7. The applicant ’ s daughter, Gülperi O. , worked as a nurse at the Aegean University Hospital in İzmir. She was married to O.O., who worked in the pharmacy at the same hospital.", "8. According to the applicant, the couple had frequent rows and O.O. used violence against Gülperi O. on a number of occasions.", "9. At 5. 3 0 p.m. on 18 July 2005 O.O. brought Gülperi O. to the accident and emergency department of the Aegean University Hospital and told the doctors and nurses at the hospital that she had taken an overdose of two medicines called “Prent” and “Muscoril”.", "10. A police officer at the hospital took a statement from O.O. at 6. 45 p.m. In his statement O.O. was reported as having stated that he and Gülperi O. had had a row earlier in the day; she had attacked him and he had hit her. He had then left home and some time after his return at 3.00 p.m. Gülperi O. had felt unwell. He had then brought her to the hospital.", "11. It was stated in a report prepared by police officers that a police officer had spoken to the prosecutor over the telephone at 6. 50 p.m. and that the prosecutor had instructed that police officer to question Gülperi O. and her husband, O.O.", "12. At the time of her admission to the hospital, Gülperi O. was conscious but drowsy. Doctors and nurses, who had been informed about O.O. ’ s assertion that she had taken an overdose of the two medicines, pumped her stomach. When her pulse slowed down the doctors unsuccessfully tried to resuscitate her. Gülperi O. died at 10.10 p.m.", "13. The doctor and the prosecutor who subsequently examined her body were unable to establish the cause of death and they decided, in view of the fact that the deceased ’ s husband, O.O., had told the police officers that he had hit her, that a post-mortem examination was necessary.", "14. The post-mortem examination was carried out the following day and samples taken from Gülperi O. ’ s body were sent for forensic analysis.", "15. On 20 July 2005 the police prepared a report summing up their inquiry. It was stated in this report that Gülperi O. had committed suicide by taking an “overdose of medicines”.", "16. On 22 July 2005 the applicant ’ s husband, Mr Elaattin Kanter, lodged an official complaint with the İzmir prosecutor against O.O., and alleged that O.O. had been responsible for the death of his daughter. Mr Kanter stated in his complaint petition that O.O. had beaten Gülperi O. up on a number of occasions and, as a result, she had been thinking of divorcing him. However, O.O. had apologized and had persuaded her to change her mind by promising to her that he would not be violent towards her again. Mr Kanter informed the prosecutor that Gülperi O. had telephoned her sister during the afternoon of the day of her death, and that they had had a normal conversation; she had not been suicidal at all.", "17. Mr Kanter alleged that O.O. had forced Gülperi O. to take the medicines and had subsequently dumped her body at the hospital. The family had heard nothing from O.O. since that date and he had not even attended the funeral.", "18. On 25 July 2005 the İzmir prosecutor questioned the applicant and her husband. The applicant told the prosecutor that O.O. had beaten up her daughter before and that as a result she had had to be hospitalised twice with suspected head injuries. Mr Kanter told the prosecutor that his daughter had never been suicidal and that in his opinion O.O. had been responsible for her death.", "19. On 29 July 2005 police officers forwarded photographs of Gülperi O. ’ s body to their head office with a covering letter stating “ ... find attached photographs of Gülperi O. who committed suicide by taking an overdose of medicines ”.", "20. Also on 29 July 2005 the İzmir prosecutor questioned the hospital personnel who had been on duty on the day in question and had tried to resuscitate Gülperi O. A doctor told the prosecutor that O.O. had told him that Gülperi O. had taken “Muscoril” and “Prent”.", "21. On 19 December 2005 the İzmir prosecutor informed the Registry Office for births, marriages and deaths that Gülperi O. had taken an overdose on 18 July 2005 and had killed herself and that her death could be entered in the records.", "22. According to a report drawn up by the Forensic Medicine Institute on 30 December 2005, no medicines, other drugs or alcohol had been found in the blood and other bodily samples taken from Gülperi O. ’ s body.", "23. On 30 January 2006 the Forensic Medicine Institute published its report on the post-mortem examination and other forensic examinations carried out on the samples taken from Gülperi O. ’ s body. According to the report, there was advanced oedema in her lungs and there were no drugs or other foreign substances in her body. The cause of death was established as “acute alveolar swelling and intra-alveolar haemorrhage ” in the lungs.", "24. On 13 February 2006 the İzmir prosecutor in charge of the investigation sent a letter to the Forensic Medicine Institute and asked whether suicide or some form of illness could have been the cause of death.", "25. In its response to the İzmir prosecutor the Forensic Medicine Institute confirmed on 24 February 2006 that there had been no foreign substances or medicines ‒ including “ Prent ” and “ Muscaril ” (see paragraph 9 above) ‒ in Gülperi O. ’ s body. The Institute also stated in its letter that, should the judicial authorities conclude that Gülperi O. had committed suicide by taking an overdose, then those judicial authorities should also conclude that the medicines she had used were of a type which could not be detected in forensic examinations of samples taken from internal organs.", "26. On 28 February 2006 the İzmir prosecutor decided to close the investigation. In the decision the prosecutor stated that “the post-mortem report of 30 January 2006 states that Gülperi O. died as a result of lung complications caused by medicinal intoxication”. In the opinion of the prosecutor, Gülperi O. had committed suicide because she had had an argument with her husband.", "27. On 4 April 2006 the applicant lodged an objection with the Karşıyaka Assize Court against the prosecutor ’ s decision. The applicant drew the Assize Court ’ s attention to the prosecutor ’ s failure to question O.O., despite the fact that by his own admission he had beaten Gülperi O. up on the day of her death. She also argued that the prosecutor ’ s conclusion that her daughter had committed suicide by taking an overdose ran contrary to the conclusions set out in the two reports issued by the Forensic Medicine Institute. She added that the prosecutor had not visited the flat where Gülperi O. used to live with O.O., even though they had informed the prosecutor that the flat had been a mess and that windows had been broken. She alleged in her petition that the prosecutor had accepted from the outset that Gülperi O. had committed suicide and that that had been the reason why she had not conducted an investigation into the allegations brought to her attention.", "28. On 20 June 2006 the applicant and her husband, assisted by a lawyer, submitted another petition to the Assize Court in which they set out additional arguments in support of their request for the prosecutor ’ s decision to be set aside.", "29. The objection was dismissed by the Karşıyaka Assize Court on 11 July 2006. The Assize Court considered that the prosecutor ’ s decision had been correct and in accordance with domestic law and procedure.", "30. When notice of the application was given to the respondent Government, the Court asked the Government ‒ pursuant to the parties ’ duty to cooperate with the Court under Article 38 of the Convention ‒ to invite the Forensic Medicine Institute to prepare a report, based on the above - mentioned existing medical reports and the prosecutor ’ s decision of 28 February 2006, and to render an expert opinion as to whether there exist medicines which cannot be detected in forensic examinations of samples taken from internal organs and which could nevertheless have caused the fatal lung problems. The Government were also asked, should the Institute ’ s answer be in the negative, to invite the Institute to elaborate, on the basis of the documents in the investigation file, on the cause of the lung problems which, according to the report of 30 January 2006, caused the death.", "31. The Government complied with that request and submitted to the Court two reports prepared by the Forensic Medicine Institute on 16 April 2013 and 15 July 2013.", "32. In these two reports, three experts working for the Forensic Medicine Institute confirmed that the samples taken from Gülperi O. ’ s body had been checked against the list of known substances in their database ‒ including the two medicines named specifically by Gülperi O. ’ s husband, O.O. ( see above in paragraph 9 ) ‒ and stated that she had not died as a result of having taken any of those substances. It was also stated in the report that the possibility could not be completely ruled out that she might have taken another toxic substance which was not in their database.", "33. The experts at the Forensic Medicine Institute also stated in their reports that they did not agree with the conclusion reached in the autopsy report of 30 January 2006, namely that Gülperi O. had died as a result of “acute alveolar swelling and intra-alveolar haemorrhage ” in the lungs. In their opinion, the “acute alveolar swelling and intra-alveolar haemorrhage ” was a histopathological finding often caused by anoxia (total oxygen depletion), and could thus not be stated as the cause of death. In the opinion of the three experts, it should have been stated in the autopsy report of 30 January 2006 that the cause of Gülperi O. ’ s death could not be established." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "34. Section 172 of the Code of Criminal Procedure, after a new sub-section 3 was added in 2013, provides as follows:", "“ Decisions not to prosecute", "Section 172- (1) If, at the end of the investigation, no evidence is discovered capable of creating a sufficient reason to instigate a criminal prosecution, or if instigating a prosecution is not possible, the public prosecutor shall render a decision not to prosecute. This decision shall then be communicated to the victim of the offence and to the suspect whose statement was taken or who was questioned in the course of the investigation. The right to lodge an objection, as well as the authority to which the objection may be lodged and the time-limit for lodging it, shall be set out in the decision.", "(2) No prosecution may be brought in respect of the act at issue unless new evidence is uncovered after the decision not to prosecute has been taken.", "(3) (Added on 11/04/2013 pursuant to section 19 of Law No. 6459) If it is established in a final judgment of the European Court of Human Rights that the decision not to prosecute was taken without an effective investigation having been carried out and if a request is made to that effect within three months of the [European Court of Human Right ’ s] judgment becoming final, a new investigation shall be opened.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2, 6 AND 13 OF THE CONVENTION", "35. The applicant complained under Articles 2, 6 and 13 of the Convention that the national authorities had failed to carry out an effective investigation into the death of her daughter.", "36. The Court considers it appropriate to examine these complaints solely from the standpoint of Article 2 of the Convention, which reads as follows:", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "37. The Government contested that argument.", "A. Admissibility", "38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "a. The applicant", "39. The applicant alleged that the cause of her daughter ’ s death had not been established by the domestic authorities. Although it had not been stated in the autopsy reports that the death had been caused by any drug, the prosecutor had wrongly concluded that the death had been caused as a result of lung complications caused by medicinal intoxication. In the opinion of the applicant, the prosecutor should have sought further expert reports on the cause of death. The applicant also alleged that the Government had failed to comply with the Court ’ s request and had failed to obtain further medical reports from their forensic authorities.", "40. Furthermore, despite the fact that O.O. had told the police officer that he had hit Gülperi O. on the day in question, the prosecutor had not investigated whether the cause of death could have been an internal haemorrhage caused by the blows inflicted by O.O.", "41. The applicant maintained that the prosecutor had failed to question O.O. despite the seriousness of the allegations directed against him. The statement taken from O.O. by the police officer had been too brief and had not addressed the issues surrounding the death. O.O. had not been questioned, for example, as to why he had falsely informed the doctors that Gülperi O. had taken the medicines “Prent” and Muscoril”.", "42. The applicant also highlighted the authorities ’ failure to visit the couple ’ s flat, where the couple had allegedly had a fight, and submitted that such a visit would have helped the authorities to clarify the nature of that fight.", "43. The applicant considered it unfortunate that even before the investigation had been concluded the prosecutor had referred to her daughter ’ s death as “suicide”. In the opinion of the applicant, this showed that the prosecutor had not been impartial and had made her mind up prematurely.", "44. Finally, the applicant alleged that the real problem in the present case was the national authorities ’ continuing tolerance towards domestic violence against women, which was a systemic problem in Turkey. Referring to the Court ’ s findings about the national authorities ’ approach to domestic violence in Turkey in the case of Opuz v. Turkey ( no. 33401/02, § § 192-198, ECHR 2009 ), the applicant alleged that the national authorities would have complied with their procedural obligation and carried out an effective investigation had her case not involved the issue of domestic violence.", "b. The Government", "45. The Government were of the opinion that their authorities had carried out an effective investigation into the applicant ’ s daughter ’ s death. The prosecutor, who had been informed about the incident by the police, had immediately started an investigation without waiting for an official complaint to be lodged. The family ’ s access to the investigation had been ensured and the investigation had been conducted with the requisite expediency.", "46. The Government considered that the applicant ’ s argument that domestic violence against women was a systemic problem in Turkey which was tolerated by the authorities was baseless. The Government also contested the applicant ’ s allegation that the Government had failed to comply with the Court ’ s request to obtain further expert reports, and submitted that they had obtained additional reports and had provided them to the Court.", "47. In Turkish law it was not necessary for all statements to be taken by a prosecutor. In any event, the prosecutor had instructed the police to question Gülperi O. ’ s husband, O.O., and the police officers had complied with those instructions and had taken a statement from O.O. Thus, the fact that O.O. ’ s statement had not been taken by the prosecutor herself did not constitute a deficiency that would tarnish the effectiveness of the investigation.", "48. Regarding the fact that the prosecutor had not visited the couple ’ s flat, where the incident had taken place, the Government submitted that a crime scene investigation had been conducted by police officers at the hospital and that they had photographed the scene. Consequently, the fact that the prosecutor had not visited the flat did not have a negative bearing on the effectiveness of the investigation. In this connection the Government invited the Court to take into account the crime scene investigation that was conducted, the existence of photographs and the absence of any suspicious findings on the body.", "49. As regards the prosecutor ’ s references to the death as “suicide” in his correspondence to the Registry Office for births, marriages and deaths (see paragraph 21 above), the Government were of the opinion that the classification of the incident as suicide did not have any impact on the merits of the ongoing investigation, such as preventing further examination.", "50. Concerning the prosecutor ’ s conclusion that the applicant ’ s daughter had died after taking an overdose, the Government referred to the expert report of 24 February 2006 summarised above (see paragraph 25 ) and argued that it could not be denied that Gülperi O. might have taken a substance which could not be detected in the samples taken from the body. The conclusion reached by the prosecutor could not, therefore, be considered as false or misleading; the prosecutor had reached that conclusion on the basis of the medical report referred to above, the witness statements, and other evidence in the case-file.", "2. The Court ’ s assessment", "51. The Court deems it appropriate to reject at the outset the applicant ’ s allegation that the Government have not complied with their obligations under Article 38 of the Convention. The Court draws the applicant ’ s attention to the two medical reports, drawn up at the request of the Court by three experts at the Forensic Medicine Institute on 1 6 April 2013 and 15 July 2013, summarised above (see paragraphs 30 - 33 ). These reports were made available to the Court by the Government as part of the annexes to their observations of 17 July 2013, and the Registry of the Court forwarded them to the applicant ’ s legal representatives on 24 July 2013.", "52. The Court observes that the applicant did not argue that her daughter had been killed by an agent of the State. Neither did she allege that her daughter ’ s life had been at risk from the criminal acts of another individual and that there had thus been a real and immediate risk to her life of which the national authorities of the respondent State had been or should have been aware but that they had nevertheless failed to take preventive operational measures to protect her life (see, Keenan v. the United Kingdom, no. 27229/95, § § 89 and 93, ECHR 2001 ‑ III ).", "53. Her complaint relates solely to the effectiveness of the investigation carried out by the national authorities into the death of her daughter and, as such, falls to be examined from the standpoint of the procedural obligation to carry out effective investigations.", "54. To that end, the Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; Kaya v. Turkey, 19 February 1998, § 105, Reports of Judgments and Decisions 1998 ‑ I ). In that connection, and having regard to the facts of the present application, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000 ‑ VII ).", "55. It must be reiterated that the obligation to investigate “is not an obligation of result, but of means ”; as such, not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant ’ s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006 and the cases cited therein). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Aktaş v. Turkey, no. 24351/94, § 300, ECHR 2003 ‑ V (extracts) and the cases cited therein).", "56. Turning to the facts of the case, the Court observes at the outset that the documents summarised above illustrate that neither the prosecutor nor the investigating police officers kept an open mind during the investigation as to the cause of the applicant ’ s daughter ’ s death. Both the prosecutor and the police seem to have accepted from the outset that Gülperi O. had committed suicide when they had no evidence to support such a conclusion, and in their correspondence ‒ before even concluding the investigation ‒ those authorities stated that Gülperi O. had taken an overdose and killed herself (see paragraphs 15, 19 and 21 ).", "57. There were apparently no steps taken by the prosecutor that would indicate that she had contemplated any other explanation for the death. Indeed, the prosecutor ’ s premature conclusion that Gülperi O. had taken her own life also seems to be responsible for her subsequent inaction and explains her failure to take action in respect of the credible and serious allegations brought to her attention. More incomprehensibly, even when the results of the post-mortem and toxicology examinations ‒ which confirmed that Gülperi O. had not taken an overdose ‒ were made available to the prosecutor, her attitude did not change and she insisted that Gülperi O. had taken an overdose.", "58. The Court considers that the starting point for the prosecutor should have been the questioning of Gülperi O. ’ s husband, O.O., who, by falsely informing the doctors and nurses at the hospital that Gülperi O. had taken two medicines, led them to treat Gülperi O. as a suspected suicide case, thus preventing them from devoting precious time to trying to establish the actual cause of her problem in order to save her life. The importance of questioning O.O. is highlighted even more strongly in the light of the information which O.O. gave to the police officer at the hospital ‒ namely that he and Gülperi O. had hit each other (see paragraph 10 above) ‒ and the information provided to the prosecutor by the applicant and her husband that O. O. had beaten their daughter up twice before, as a result of which she had had to be hospitalised with suspected head injuries (see paragraphs 16 and 18 above).", "59. Nevertheless, the prosecutor took no steps to question O.O. at any stage of her investigation. At the time of giving notice of the application to the Government, the Court asked them to elaborate on the prosecutor ’ s failure to question O.O. and questioned whether that failure had had any bearing on the effectiveness of the investigation. The Court has examined the Government ’ s response to that question (see paragraph 4 7 above), and considers that it does not dispel the serious misgivings the Court has about the negative impact of the failure to question O.O. had on the effectiveness of the investigation.", "60. The Court must stress in this connection that, contrary to the Government ’ s submissions (see paragraph 4 7 above), it is not concerned as to which national authority might have questioned O.O. Thus, the fact that the only statement from O.O. was taken by a police officer, rather than by a prosecutor, does not have any impact on the Court ’ s examination in the particular circumstances of the present case and the Government were not invited to elaborate upon that aspect. What is crucial for the Court ’ s examination is the fact that O.O. was not questioned by any investigating authority in relation to the pertinent points, such as the misleading and potentially life-threatening information he provided to the doctors regarding the underlying cause of Gülperi O. ’ s condition and the fight he had had with Gülperi O., during which ‒ by his own admission ‒ he had hit her.", "61. In this connection, the Court also considers the Government ’ s submission that O.O. had been questioned by the police upon an instruction from the prosecutor to be baseless. It notes that the prosecutor issued his instruction to the police officer over the telephone at 6.50 p.m. (see paragraph 11 above), that is to say after the only statement taken from O.O. in the entire investigation had already been drawn up at 6. 45 p.m. (see paragraph 10 above).", "62. The Court agrees with the submissions made by the applicant that a visit to the couple ’ s flat, where the couple had had a fight earlier on the day Gülperi O. lost her life, would have helped the authorities to draw a clear picture of the background to the events leading up to Gülperi O. ’ s death and to assess the importance, if any, of the fight the couple had there. Yet it appears that the flat was never visited by the prosecutor or the investigating police officers, let alone by any scene of crime experts. In this connection the Court is unable to understand how it is, as suggested by the Government (see paragraph 4 8 above), that photographing Gülperi O. ’ s body and “carrying out a crime scene investigation at the hospital” might somehow be a substitute for a visit to the couple ’ s flat where a fight had taken place. The Court considers that, as a result of that failure, the prosecutor wasted a genuine opportunity to collect crucial evidence and/ or to dispel doubts about the role of that fight in Gülperi O. ’ s death.", "63. The Court notes that the prosecutor ’ s conclusion that the investigation should be closed was based solely on the misleading information given by O.O. to the doctors that Gülperi O. had taken an overdose of two medicines. That decision is not supported by any other evidence. No evidence exists, for example, to support the prosecutor ’ s conclusion that Gülperi O. had taken an overdose because she had had an argument with O.O. Even the statement made by O.O. to the police officer does not mention that Gülperi O. had taken an overdose, let alone her having done so because of the argument she had had with O.O. (see paragraph 10 above). Contrary to the Government ’ s submissions (see paragraph 50 above), none of the witnesses questioned in the investigation said that Gülperi O. had committed suicide. The Court also observes, contrary to the Government ’ s reference to “other evidence in the file”, that there is no other evidence in the file.", "64. Having regard to the reports obtained from the forensic authorities at its request (see paragraphs 32-33 above), the Court does not have any grounds to call into question the existence of the theoretical possibility that Gülperi O. might have committed suicide by taking a medicine which was not included in the forensic authorities ’ database. Nevertheless, when examined against the background of the serious failures in the investigation which are highlighted above and the misleading information provided by O.O. to the doctors ‒ which should have generated serious doubts in the mind of the prosecutor about the suicide theory ‒ the Court considers that a theoretical possibility is not sufficient to support the prosecutor ’ s decision. To this end the Court must also draw attention to the conclusion reached in the above - mentioned reports that the cause of Gülperi O. ’ s death could not be established (see paragraph 33 ). That conclusion, in the opinion of the Court, further undermines the prosecutor ’ s conclusion that Gülperi O. died as a result of a drug overdose.", "65. The Court considers that the failures in the investigation in the present case bear the hallmarks of other investigations in Turkey into allegations of domestic violence, one of which the Court has had the opportunity to examine. In that judgment the Court concluded that there existed a prima facie indication that domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence (see Opuz, cited above, § 198). As evidenced in the present case, the Court considers that the prosecutor ’ s above - mentioned serious failures are part of that pattern of judicial passivity in response to allegations of domestic violence.", "66. As set out above, according to the Court ’ s case-law, any deficiency in an investigation which undermines its ability to establish a cause of death ‒ or the person responsible for such a death ‒ will risk falling foul of the standard of effectiveness expected from the national authorities (see paragraph 5 5 above). Having examined and highlighted the numerous deficiencies in the investigation in the present case, the Court finds that the authorities have failed to carry out an effective investigation into Gülperi O. ’ s death.", "67. Having established that the national authorities have not conducted an effective investigation capable of establishing the cause of death and leading to the identification and punishment of anyone who might have been responsible for the death, the Court concludes that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of the applicant ’ s daughter Gülperi O. ’ s death.", "68. In the particular circumstances of the present application the Court considers it appropriate to refer to a set of recent amendments introduced in the Turkish legal system. According to those amendments, in cases in which the Court finds a violation of the Convention on account of a failure to carry out an effective investigation, the applicants have the opportunity to ask the national authorities to reopen investigations into the deaths of their relatives (see paragraph 34 above). It is therefore possible for the applicant in the present case to ask the investigating authorities to reopen the investigation into the death of her daughter, and to ask those authorities to conduct a new and effective investigation by taking into account the deficiencies identified by the Court in the previous investigation as well as the two medical reports prepared by the Forensic Medicine Institute at the request of the Court (see paragraphs 32-33 above).", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "69. As set out above (see paragraph 3 5 ), in respect of her complaint that the national authorities had failed to carry out an effective investigation into the death of her daughter, on her application form the applicant relied on Articles 2, 6 and 13 of the Convention, and the Court considered it appropriate to examine the complaints solely from the standpoint of the procedural obligation inherent in Article 2 of the Convention.", "70. In the observations she submitted to the Court on 28 August 2013, the applicant also complained that the national authorities ’ failure to carry out an effective investigation had also deprived her of the possibility of obtaining compensation and that there had thus been a violation of Article 13 of the Convention.", "71. The Government objected to the applicant ’ s submissions in this respect which, they argued, concerned matters of which they had not been given notice.", "72. The Court observes that, as set out above, on her application form the applicant complained under Article 13 of the Convention solely of the deficiencies in the investigation and did not allege that she had been unable to seek and obtain compensation as a result of those deficiencies. The first time she complained about that alleged inability was in her observations which, as explained above, were submitted to the Court on 28 August 2013.", "73. The Court notes that the final domestic decision taken in this present application was the decision of the Karşıyaka Assize Court on 11 July 2006. The complaint under Article 13 of the Convention concerning the issue of compensation was not made until 28 August 2013, i.e. more than six months later.", "74. In light of the foregoing, the Court considers that this complaint has been introduced out of time and must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "75. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "76. The applicant claimed 50,000 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of non-pecuniary damage.", "77. The Government considered that there was no causal link between the alleged violations and the pecuniary damage claimed. They also submitted that the claim for non-pecuniary damage was excessive.", "78. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 20,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "79. The applicant claimed EUR 8,000 for costs and expenses incurred before the Court. In respect of the claim for her lawyers ’ fees the applicant submitted a breakdown of the hours spent by her lawyers in representing her before the Court. According to that document, the applicant ’ s lawyers had spent a total of 31 hours on the case for which they claimed a total of 9,565 Turkish liras (TL ) ( approximately EUR 3, 480 at the time of submission of the claims ). This sum comprised TL 1,900 for verbal advice given to the applicant, and TL 7,665 for the written work. Both sums were calculated in accordance with the fee scales recommended by the Turkish Bar Association.", "80. In support of the above - mentioned claim the applicant also submitted to the Court the copy of a fee agreement which shows that she agreed to pay her lawyers TL 10,000 plus value added tax, as well as 20% of any compensation awarded to her by the Court. Finally, she submitted two postal receipts, showing that her lawyers had incurred costs totaling TL 14 (approximately EUR 5) when corresponding with the Court.", "81. The Government were of the opinion that the claims in respect of costs and expenses were excessive and not itemised. As such, it was not clear how much the applicant had claimed in respect of the lawyers ’ fees as opposed to the other costs and expenses. In any event, the applicant had failed to specify how many hours had been spent by her lawyers on the case. They invited the Court not to make an award to the applicant in respect of costs and expenses other than for the postal expenses which were documented.", "82. The Court observes that, contrary to the Government ’ s submissions, the applicant did in fact clearly itemise her claim in respect of costs and expenses and specified the exact hours spent by her lawyers on the case. She also submitted a fee agreement. However, according to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "83. Taking into account the documents in its possession and the above criteria, as well as the sum of EUR 850 already paid to the applicant ’ s legal representative by the Council of Europe by way of legal aid (see paragraph 2 above), the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.", "C. Default interest", "84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1984 and lives in Tirana.", "A. Background of the case", "6. On 29 July 2009, at around 4 p.m., while walking along a back street in Tirana, the applicant suffered grievous injuries in an acid attack by an unidentified assailant. She was taken immediately to Tirana’s Mother Teresa Hospital to receive urgent medical treatment. The hospital record read that 25% of the applicant’s body – mainly her face and upper body – had been burned ( combusio corporis, facies et extremitas superior ) owing to the acid attack and that she was in a critical condition. On 1 August 2009 she was taken to Italy for more specialised hospital treatment. The hospital record of 2 October 2009 read that the applicant had medium to deep facial, neck and body burns ( ustioni intermedio ‑ profonde di volto, collo, tronco, arti superiori ed inferiori ) caused by sulphuric acid. According to the record of her hospital treatment in Italy, between 2009 and 2012 the applicant underwent at least fourteen operations. The costs for such operations were borne by the regions of Apulia and the Marches in Italy, as well as by the applicant. She suffered from anxiety and from psychological problems and was scared to go back to Albania. She was granted sick leave by the Albanian authorities for at least seven months but it appears that she was unable to work for several years.", "B. Criminal investigation into the attack of 29 July 2009", "7. On 29 July 2009 the prosecutor opened a criminal investigation into the acid attack under Article 88 of the Criminal Code (see paragraph 64 below). The applicant made a statement in which she said she had not recognised her assailant. She stated that she was not in a dispute with anyone, but suspected that the attack had been organised by her former husband (E.A.) as an act of revenge and a continuation of past domestic violence. In the past he had threatened the applicant, saying that he would kill her. She and E.A. had finally separated after he had refused to allow her to attend a specialised training course in Italy. In addition she stated that at the time of the attack, the assailant had been wearing a brown/beige hat and black sunglasses and a black shirt. The assailant had thrown a substance over her face and body and had then walked away. She had sensed that her face and chest were getting burnt and her clothes were melting. The substance had also been thrown over her colleague, who had been with her. She further stated that E.A. had been imprisoned in Italy and that he had friends with criminal records.", "8. On the same day the prosecutor obtained a statement from the applicant’s colleague, who had also suffered grievous injuries. The colleague stated that she too had not recognised the assailant. The assailant had been wearing dark trousers and a dark shirt and had been holding a container with a red substance inside. While walking towards her and the applicant, he had opened the container and had thrown the contents all over them. She stated that she was not in a dispute with anyone and that she had heard from the applicant’s family members that they had suspicions about the applicant’s former husband. She also stated that she had seen other people at the scene of the attack and a man on the main street.", "9. On 29 July and 6 August 2009 E.D., one of the applicant’s colleagues, gave a statement declaring that he had been unable to see the perpetrator’s face because he had had his back to him. He gave a description of him as wearing a red shirt, white striped jeans and sunglasses. He further described how he had helped the applicant and the other victim and that, together with another colleague, E.S., he had sent both of them to hospital. He also stated that other people had arrived at the scene and had tried to help the victims. The aforementioned colleague E.S. stated that she had helped to get the victims to hospital. She had not seen the perpetrator at all.", "10. On 29 July 2009 B.D., the applicant’s sister, stated that her sister had told her in the past that E.A. was jealous and used violence against her. She had wanted to attend a specialised training course in Italy but E.A. had not allowed her. He had threatened to kill her if they were to get divorced. She also stated that her cousin, R.T., had met E.A. to give some items back to him on behalf of the applicant. E.A. had told R.T. that he would not cause the applicant any problems, and that she could continue with her life as normal. B.D. also stated that in May 2009 she had met E.A. and his mother in the presence of her sister to discuss the continuation of their relationship. According to B.D., it had been obvious from the discussions they had that E.A. had used violence against her sister. On 21 December 2009 B.D. made another statement in which she confirmed her statements of 29 July 2009 and said that she still had suspicions that E.A. might have committed the attack.", "11. On 29 July 2009 R.T., the applicant’s cousin, stated that he was aware that E.A. had used violence against the applicant and had been jealous. He had met E.A. two months earlier and had given some items back to him on behalf of the applicant. E.A. had told R.T. that he would not contact the applicant or cause her any problems.", "12. On 29 July 2009 L.D., the applicant’s brother-in law, stated that he had learnt from his wife, B.D., that his sister-in-law had been subjected to violence and insults by her husband.", "13. On 29 July 2009 V.T., the applicant’s mother, stated that E.A. had been involved in criminal offences such as the theft of safe deposits and murder. He had used violence against the applicant. Once, he had locked her in his apartment for three days, preventing her from going to work, as revenge for threatening to report him to the police. After the divorce they had had some arguments concerning certain items that they had to return to each other.", "14. On 29 July 2009 another eyewitness, G.D., who had been having a coffee in a nearby café at the time of the attack, stated that he had gone to help the applicant and the other victim after hearing screams. He had not seen who had committed the assault. He had seen a container in the street and had kicked it over. According to him, the substance which spilled onto the street had been acid.", "15. In a statement provided on the same day, E.A. stated that on 29 July 2009 he had been in Durres until 6 p.m. He further stated that he and the applicant had divorced in May 2009 because they were having problems; he had disagreed with the applicant when she had wanted to go to Italy to attend a specialised professional course. He further stated that the divorce had gone smoothly and that since then he had had no contact with the applicant. He did not have any information as to who could have been the perpetrator. He also gave information about the people he knew, namely family members, friends and cousins.", "16. On 29 July 2009 F.P., E.A.’s mother, stated that her son and the applicant had had good relations, but they had divorced in 2009 because the applicant had wanted to attend a specialised training course in Italy and E.A. had not consented to the idea. She further stated that on the day they got divorced she had met her son, the applicant and the applicant’s sister to find a solution. However, her son and the applicant had decided to end their relationship. Since then, as far as she was aware, they had not had any contact. She confirmed that her son had been in Durres the whole day. E.A.’s cousin, L.A., also stated that as far as he was aware his cousin did not have any dispute with the applicant.", "17. On 29 July 2009 a judicial police officer conducted an on-site examination and secured some evidence, including the applicant’s and her colleague’s clothes and a glass container containing a small quantity of a red liquid substance.", "18. On 29 July and 1 October 2009 the judicial police officer decided that several expert reports should be drawn up, namely a forensic medical report, a fingerprint expert report on the glass container used for throwing the acid, a chemical and toxicology expert report on the glass container in order to identify the liquid substance and the method whereby the liquid had been produced, and a chemical and toxicology expert report on the applicant’s and the other victim’s clothes to identify the liquid substance and to determine whether the damage to the clothes had occurred as a result of the use of that substance.", "19. On 29 July 2009, interception of E.A.’s telephone conversations over the period from 29 July to 12 August 2009 was ordered by the prosecutor and was subsequently approved by the district court on 30 July 2009. On 13 August 2009 the general prosecutor sent the results of the interception to the district prosecutor.", "20. On 30 July 2009 the judicial police officer referred the criminal offence of causing serious intentional injury attributed to E.A. to the district prosecutor’s office. He noted that on 29 July 2009 in a back street near the Ministry of Justice, an unidentified person had thrown acid over the applicant and another victim, leaving both of them in a critical condition. He considered that on the basis of the evidence in the file, as well as statements made by the applicant, the other victim and other family members, it was apparent that there were suspicions that E.A. might have committed the attack.", "21. On 31 July 2009 the applicant made another statement, saying that she still had suspicions that E.A. had wanted revenge because of the divorce. She also added that in the past he had committed criminal offences – namely thefts from safe deposits and houses − and that he had possessed a gun.", "22. On 3 August 2009 the district prosecutor ordered that a number of procedural actions be taken, such as the examination of the fingerprint expert report on the container used for throwing the acid and that its results be compared with fingerprints of other suspected persons, as well as any other person who was included in the Central Criminology Laboratory’s list of suspected persons; the examination of the forensic medical report and other expert reports; the questioning of every person with any knowledge about the event; the examination of telephone interceptions; the obtaining of the victims’ and E.A.’s telephone records, as well as those of any other person who could be concerned with the investigation; the finding and verification on the Internet of telephone numbers used by E.A.; the confiscation of video footage from some nearby cameras, as one of them might have captured and recorded the perpetrator; establishing the origin of the television sets found in E.A.’s apartment (see paragraph 44 below); and any other action deemed appropriate.", "23. On 3 August 2009 an expert report prepared by the Institute of Scientific Police ( Instituti i Policisë Shkencore ) concluded that no fingerprints could be identified on the glass container.", "24. On 6 August 2009 a forensic report prepared by the Forensic Medicine Institute ( Instituti i Mjekësisë Ligjore ) concluded that 25% of the applicant’s face, abdomen and upper extremities had been burnt, the injuries having been caused by a corrosive substance. It further concluded that on the basis of the medical report alone, it was not possible to give an accurate conclusion concerning the category of the applicant’s injuries. It would therefore be necessary to examine the applicant three months after the date on which she had been injured.", "25. On 11 August 2009 Internet research was conducted by the judicial police officer to find the telephone numbers listed in E.A.’s name. On the same day the prosecutor requested that a mobile telephone company provide him with the call log history relating to several of E.A.’s telephone numbers for the period from 25 to 30 July 2009, as well as the location and the area they had covered on 29 July 2009. On 18 August the mobile telephone company submitted the information as requested by the prosecutor.", "26. On 15 August and 15 December 2009 further information was requested in respect of some other telephone numbers so as to identify the persons to whom they belonged and who had made telephone calls during the hours when the attack had occurred. On 21 December 2009 the mobile telephone company submitted the information as requested by the prosecutor. In January 2011 two individuals questioned by the judicial police officer stated that they did not have any information about the incident of 29 July 2009. Despite being friends with E.A., they maintained that he had not discussed the event with them. Another person who was questioned stated that she did not know E.A. at all.", "27. On 11 August 2009 the district prosecutor requested that video footage be provided by three nearby banks, whose security cameras were believed to have recorded images of the events of 29 July 2009. On 13 and 18 August 2009 two banks submitted video footage on CD-ROM. The record written by the judicial police officer on 24 September 2009 on the examination of evidence stated that the CD-ROMs had been examined with a view to identifying any person who had the same characteristics as the person described in the statements given by witnesses. They were also examined by the applicant and her colleague. However, nobody could be identified as the suspected perpetrator.", "28. On 9 September 2009 another witness, G.V., the applicant’s colleague, was questioned and described how a man whom she had seen near the site was dressed. According to her, the assailant was wearing a dark hat, sunglasses and dark clothes. On the same day another witness, Y.K., stated that she had seen two young men holding a glass container, one of whom had been wearing a red shirt and the other one a black shirt.", "29. On 16 December 2009, E.K. ‒ E.A.’s sister ‒ made a statement before the judicial police officer in which she confirmed that on 29 July 2009 E.A. had been in Durres with her. She stated that the applicant and E.A. had had a good relationship. They had divorced because the applicant had wished to go to Italy to attend a specialised training course and E.A. had disagreed with the idea for his own personal reasons.", "30. On 30 September 2009 the Faculty of Natural Sciences ( Fakulteti i Shkencave Natyrore ) informed the judicial police officer that it was unable to draw up the requested chemical expert report (most probably referring to the expert report to be drawn up concerning the red substance – see paragraph 18 above) as it lacked the necessary specialised equipment.", "31. On 23 October 2009 the Institute of Scientific Police informed the judicial police officer that it could not compile an expert report on the applicant’s and the other victim’s clothes since this did not fall within its sphere of competence.", "32. On 7 December 2009 the judicial police officer decided that a further forensic report should be compiled by the Forensic Medicine Institute in view of the conclusions drawn in the report of 6 August 2009 (see paragraph 24 above). On 15 December 2009 the doctor replied that the report could be prepared once he had at his disposal a copy of the applicant’s medical reports prepared by the Italian hospital.", "33. On 18 December 2009 a group of experts from the Forensic Medicine Institute prepared another forensic report. They noted that they could not examine the applicant as she was in Italy undergoing specialist treatment and they had not been able to examine the medical reports from the Italian hospital. They reiterated the conclusion stated in the forensic report of 6 August 2009. They concluded that, on the basis of the documents at their disposal, at the time the injuries were inflicted, they were so grievous that they would have put the applicant’s life in danger had no specialist medical aid been given.", "34. On 2 February 2010 the district prosecutor, in a reasoned decision, decided to stay, in accordance with Article 326 of the Code of Criminal Procedure (see paragraph 59 below), the investigation concerning the criminal offence of causing serious intentional injury and referred the case file to the Tirana Police Directorate for further actions to identify the perpetrator. The decision described all the evidence that had been obtained as well as statements that had been given by the applicant and other persons. It stated, in so far as relevant, the following:", "“[F]orensic reports concluded that 25% of the applicant’s face, abdomen and upper extremities were burnt. The injuries had been caused by a corrosive substance. The injuries were so grievous that the applicant’s life would have been in danger if no specialist medical aid had been given ... the fingerprint expert report concluded that no fingerprints could be identified ...", "the [Faculty of Natural Sciences] replied that it lacked the specialist equipment needed to produce the relevant expert reports ...", "the [Institute of Scientific Police] replied that it was not its duty to carry out the requested expert report concerning the examination of the clothes the applicant was wearing at the time of the attack ...", "after examination of the video footage from two nearby cameras, nobody could be identified as a suspect in connection with the crime, taking into consideration the features mentioned by the witnesses in their statements; it was not possible to obtain a copy of the CD-ROM from the other bank owing to technical difficulties encountered with its transcription ...", "the telephone communication intercepts did not reveal any conversation relevant to the investigation ...", "three other individuals who conducted telephone communications during the period when the assault occurred were questioned, but with no result ...", "it is apparent that the district prosecutor undertook numerous investigative actions, such as the examination of many items of evidence, as well as the applicant’s questioning. For the above reasons, all possible investigative actions have been carried out, but it has not been possible to identify the perpetrator(s) of the criminal offence ...”", "35. No further official communication having been received by the applicant following the launch of the criminal investigation, on 10 March 2012 she authorised the Albanian Centre for the Rehabilitation of Trauma and Torture (“the Centre”) to pursue her case.", "36. On 2 April 2012 the Centre sought information from the prosecutor about the progress of the investigation.", "37. On 17 April 2012 the prosecutor informed the Centre that the criminal investigation had been stayed and the case file had been transferred to the police for further action in order to identify the assailant. The Centre was informed that it should seek copies of the documents it required from the relevant police authority.", "38. On 19 April 2012 the Centre asked the Tirana Police Directorate to provide information about the progress of the investigation.", "39. On 23 May 2012 the Tirana Police Directorate informed the Centre that the investigation was ongoing and made available a copy of the medical reports. A copy of the prosecutor’s decision staying the investigation could not be provided without the prosecutor’s prior authorisation.", "40. On 5 December 2013 the Centre asked the prosecutor to provide it with a copy of the investigation file. The Centre also urged the prosecutor to find and punish the perpetrator.", "41. On 8 January 2014 the prosecutor informed the Centre that the investigation had been stayed because the assailant could not be identified. The case file had been entirely transferred to the police authority, from which the Centre could obtain a copy.", "42. The criminal file which was submitted by the Government as part of their observations indicated that an investigation had been opened into the criminal offences of causing serious intentional injury and the production and illegal possession of weapons as provided for in Articles 88 and 279 of the Criminal Code, respectively. On two occasions, on 30 October and 31 December 2009, the district prosecutor had extended the investigation on the grounds that the investigation was complex and the questioning of many individuals and the examination of several other acts were necessary.", "43. It appears that until the end of 2015, when the parties filed their written submissions with the Court, the case was still pending before the police authorities; the parties have not provided an update in respect thereof.", "C. Proceedings concerning the criminal offence of production and illegal possession of weapons", "44. On 29 July 2009 E.A.’s apartment was searched and two knives, four television sets, two laptop computers and a camera were found. They were subsequently seized.", "45. On 30 July 2009 the district prosecutor attributed to E.A. the criminal offence of production and illegal possession of weapons under Article 279 of the Criminal Code on the grounds that two knives had been found in E.A.’s apartment (see paragraph 64 below).", "46. On 30 July 2009 E.A. was arrested in the act of committing the criminal offence of production and illegal possession of bladed weapons. Subsequently, the prosecutor imposed an obligation on him to appear before the judicial police office (“compulsion order” – masë shtrënguese ), which was approved by the district court on 1 August 2009.", "47. On 6 August 2009 the Tirana Police Commissariat stated that the items seized in E.A.’s apartment on 29 July 2009 did not match the description of any object that had been stolen in the territory covered by that commissariat.", "48. On 11 January 2010 the Ministry of Culture informed the district prosecutor that the two knives were for purely ornamental use.", "49. On 2 February 2010 the district prosecutor, in a reasoned decision, discontinued in accordance with criminal procedural law the investigation concerning the criminal offence of production and illegal possession of bladed weapons (see paragraph 61 below). It also ordered that the coercive measure against E.A. be lifted. The decision described all the evidence that had been obtained, as well as the statements given by the applicant and others. It reasoned that since the knives had been found in E.A.’s apartment and not in a public place and that the Ministry of Culture’s letter of 11 January 2010 had stated that they were only for ornamental use, it was clear that no criminal offence had been committed.", "D. Proceedings concerning the applicant’s claim for damages", "50. On 2 May 2012 the applicant, relying on the European Convention on the Compensation of Victims of Violent Crimes (“the European Convention on Compensation to Victims”), lodged a request with the Ministry of Justice seeking compensation from the State as a result of the acid attack (see paragraph 89 below).", "51. On 3 September 2012 the applicant, relying on the European Convention on Compensation to Victims and Articles 625, 640 and 641 of the Civil Code, as well as decision no. 12 of 14 September 2007 of the Supreme Court Joint Benches (see paragraph 73 below), lodged a claim for damages with the Tirana District Court against the Ministry of Justice, seeking compensation from the State as a result of the acid attack. She also requested to be exempted from paying the court fees on the grounds of lack of financial means, and to have the amount of the compensation determined by experts.", "52. The applicant submitted that she had subsequently withdrawn her claim as she had found it impossible to pay the court fees.", "53. On 30 May 2013 the Tirana District Court discontinued the proceedings ( pushimin e gjykimit ) when the applicant and her lawyer failed to appear at the hearing." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitution", "54. The relevant provisions of the Constitution read as follows.", "Article 21", "“The life of the person is protected by law.”", "Article 25", "“No one shall be subject to torture, or to inhuman or degrading punishment or treatment.”", "Article 44", "“Everyone has the right to rehabilitation and/or compensation in compliance with the law in the event that he has experienced damage owing to an unlawful act, action or the omission of the State authorities.”", "B. Code of Criminal Procedure", "55. The provisions of the Code of Criminal Procedure (“the CCP”) in force at the material time had the following content.", "56. Article 24 § 4 of the CCP provided that the orders and directives of a higher ‑ ranking prosecutor were binding on a lower-ranking prosecutor. Article 24 § 5 provided that a higher-ranking prosecutor, either proprio motu or following an appeal, had the right to amend or repeal the decisions of a lower-ranking prosecutor.", "57. Under Article 61, a person who had suffered pecuniary damage as a result of the commission of a criminal offence could lodge a civil claim during the criminal proceedings to seek compensation for damage. Under Article 62 § 1, the request was to be submitted prior to the commencement of the judicial examination. In accordance with Article 62 § 3, a court could decide to sever the civil claim from the criminal proceedings if its examination delayed or complicated the criminal proceedings.", "58. Article 105 of the CCP provided for the right of any interested party to request copies and extracts of separate documents from the criminal investigation file, at that party’s expense.", "59. Article 326 of the CCP, which provided for the prosecutor’s right to stay the criminal investigation ( pezullimi i hetimeve ), read as follows:", "“1. When the perpetrator of the offence is unknown ..., the prosecutor may decide to stay the criminal investigation.", "2. The criminal investigation may be stayed once all possible actions have been carried out.", "3. The stayed criminal investigation may recommence by a decision of the prosecutor.”", "60. At the material time, there was no specific provision in the CCP for a right to appeal against a prosecutor’s decision staying a criminal investigation.", "61. Article 328 of the CCP provided for the prosecutor’s right to discontinue the criminal investigation ( pushimi i çështjes ). Under Article 329 of the CCP, an appeal lay with the district court against the prosecutor’s decision to discontinue the criminal investigation.", "Relevant domestic case-law concerning the stay of the investigation", "62. In one case a complainant, H.S., lodged a criminal complaint with the prosecutor’s office concerning the death of his sister. The prosecutor stayed the investigation on the basis of Article 326 § 1 of the CCP on the grounds that no perpetrator of the crime could be traced. The complainant instituted legal proceedings against the stay of the criminal investigation. He complained that he had not been informed of the content of the investigation file or the stay of the criminal investigation, that the prosecutor had not questioned all the witnesses and that he had no effective remedy to complain about the decision to stay the criminal investigation. The domestic courts dismissed his action. The Tirana Court of Appeal held that, since the criminal investigation had been ongoing, and since the prosecutor’s office had had the discretion to determine the investigative actions to be carried out, the complainant did not have legal standing. It reaffirmed that there was no right of appeal against a decision to stay criminal proceedings under the criminal procedural law. The complainant lodged a constitutional complaint with the Constitutional Court, which was dismissed by decision no. 4 of 18 January 2013. The Constitutional Court stated, among other things, that there was no remedy under domestic law against a prosecutor’s decision staying a criminal investigation. However, the fact that the complainant had had access to the domestic courts indicated that he had an effective right to appeal to a court.", "C. Criminal Code", "63. The Criminal Code consists of chapters, which themselves are made up of sections. Chapter II of the Specific Part of the Code is devoted to criminal offences against the person. Section I of Chapter II covers intentional crimes against life and, at the relevant time, contained more than ten different provisions in respect of murder. Section III of Chapter II deals with intentional crimes against health. Assault offences, which are further categorised according to the level of severity of the inflicted injury, fall under Section III and include torture (Article 86), causing serious intentional injury (Article 88), non-serious intentional injury (Article 89) and other intentional harm (Article 90). Of those offences, only the criminal offence of causing non-serious intentional injury (Article 89) falls into the category of private prosecution cases, which have to be brought by the individual concerned directly before the competent court, and can be withdrawn at any stage of the proceedings (Article 284 of the CCP).", "64. Article 88 of the Criminal Code provides that causing serious intentional injury resulting in disfigurement, mutilation or any other permanent damage to health is to be punished with imprisonment of between three and ten years. Article 279 provides, among other things, that the production and illegal possession of bladed weapons is punishable by a fine or up to five years’ imprisonment.", "65. Following amendments made to the Criminal Code in 2012, Article 130/a introduced domestic violence as a criminal offence. Battery or any other violent act, serious threat of death or serious injury, intentional injury against the spouse, former spouse, cohabitee, former cohabitee or any other person related by way of family ties to the perpetrator, with the intention of violating that person’s physical, psychosocial and economic integrity, is to be punished with imprisonment of between two and five years.", "66. In 2013 amendments were made to Article 50 of the Criminal Code, which now treats as an aggravating circumstance the commission of a criminal offence committed during or after a court protection order issued in respect of domestic violence.", "D. Civil Code", "67. Article 608 of the Civil Code provides that anyone who unlawfully and wrongfully causes damage to another person or to that person’s property is obliged to pay compensation for the damage. He is not liable if he proves that he was not at fault.", "68. Article 609 provides that the damage must be the result of a person’s direct and immediate act or omission.", "69. Article 625 provides that a person who suffers non-pecuniary damage is entitled to compensation if there has been damage to his health or physical or mental integrity or if his honour, personality or reputation have been infringed, or if his right to respect for his private life has been infringed.", "70. Under Article 640, pecuniary damage includes the actual loss suffered and loss of profit. Reasonable and necessary expenses incurred may also be subject to compensation.", "71. Under Article 641, a person who causes damage to someone else’s health must pay compensation, regard being had to the loss or reduction of ability to work and medical or other expenses incurred in connection with the damage caused.", "Relevant domestic case-law concerning the payment of damages", "72. The Government submitted, as part of their observations, some domestic case-law concerning the payment of damages.", "73. In unifying decision no. 12 of 14 September 2007, following a civil claim for damages and expenses against the Albanian Insurance Bureau (a State entity) for the death of three people in a car accident, the Supreme Court Joint Benches ruled, in so far as relevant, as follows:", "“... [T]he domestic courts have accepted that three people lost their lives in a car accident ... [S]ubstantially under Article 608 of the Civil Code ... the legislature provides for the protection of the right to life, health, personality, dignity, private life and so on from the unlawful acts of a third party. If there is a violation of any of these rights as a result of the unlawful act, the injured party has the right to extra-contractual compensation ... In applying Article 609 of the Civil Code, the causal material link between the unlawful behaviour (the act or omission) and the fault and the damage should be proved. In determining the actual damage caused by the unlawful fact and the relevant compensation, the causal juridical link between them should also be proved. The causal material link serves to identify the person responsible and the causal links among the three elements of the unlawful act: the unlawful behaviour, the fault and the consequence resulting therefrom, that is the damage to another person or to that person’s property ... The causal juridical link serves to demonstrate the causal link between the unlawful act, taken in its entirety, and the specific infringement of the lawful rights and interests [of another person] ...", "The loss of profit [provided for in Article 640 of the Civil Code] relates to the inability to obtain future pecuniary damages, that is, an asset which does not belong to the injured person at the time the damage has been caused.", "...", "Non-pecuniary compensation for damage to one’s health under Article 625 of the Civil Code may be sought independently of a claim for pecuniary damage as a result of the loss or reduction of ability to work as provided for in Article 641 of the Civil Code. An injured person seeking compensation in reliance on Article 641 of the Civil Code bears the burden of proving the amount of income that he could no longer earn as a result of the loss or reduction of ability to work, after discharging the obligation to demonstrate damage to his health, its permanent or temporary nature, and the degree of damage.”", "74. In another case, a complainant had requested compensation from a State entity under Article 640 of the Civil Code for damage caused to his health as a result of a firearm injury caused by State police officers. In its decision no. 275 of 24 September 2009, the Supreme Court remitted the case for re-examination to the relevant court of appeal. It reasoned that, as a result of the complainant’s injury by the State police officers, it had been duly proved that damage had been caused to his health.", "75. In a decision of 25 November 2011, the Tirana District Court accepted a civil claim by complainants for compensation against State authorities and two private companies jointly and severally, lodged under, inter alia, Articles 625 and 640 of the Civil Code, as a result of their family member’s death in a massive explosion at a weapons decommissioning facility. The court reasoned that criminal responsibility was independent of the civil obligation to pay compensation, which related only to compensation for damage inflicted by the dangerous activity of decommissioning weapons.", "E. The Domestic Violence Act (Law no. 9669 on measures against violence in family relations of 18 January 2006, as amended by Law no. 9914 of 12 May 2008, Law no. 10329 of 30 September 2010 and Law no. 47/2018 of 23 July 2018)", "76. The Domestic Violence Act, which entered into force on 1 June 2007, established a mechanism by which to provide victims of domestic violence with a protection order which may be issued by a civil court at the request of the victim. An emergency (“immediate”) protection order may be granted provisionally by a court if the perpetrator has threatened to commit acts of domestic violence or if the perpetrator poses a direct and immediate threat to the security, health or well-being of the victim or other family members (section 19). An emergency protection order remains valid until the court grants a protection order. The Act provides for better protection, not only for persons who are currently in a family relationship but also for persons who used to be in a family relationship, such as former spouses or partners (section 3).", "77. The adoption of a protection order or an emergency protection order does not prevent the victim from instituting criminal proceedings under the Criminal Code (section 24). The police, the prosecutor or a non ‑ governmental organisation may also request the adoption of a protection order or an emergency protection order (section 13). When the request has been submitted by the police or the prosecutor, the victim’s withdrawal will not lead to the discontinuation of the case (section 16).", "78. Section 10 lists the protection measures that may be ordered by a court. A protection order may thus include, among other measures, the removal of the perpetrator from the victim’s home (regardless of the perpetrator’s property rights), a prohibition on the perpetrator coming within a certain distance of the victim or other family members, a prohibition on the perpetrator entering or staying in the temporary or permanent residence of the victim, or any part thereof, the placement of women and their children in temporary shelters, or an order for the perpetrator to participate in rehabilitation programmes.", "79. The Domestic Violence Act also provides for the establishment of a shelter for victims of domestic violence (section 6 as amended) and a coordinated system for referring cases of domestic violence to the authorities.", "80. Breaching a protection order constitutes a criminal offence under Article 321 of the Criminal Code and is punishable by a fine or up to two years’ imprisonment.", "III. RELEVANT INTERNATIONAL LAW AND MATERIAL CONCERNING GENDER-BASED VIOLENCE", "A. United Nations Convention on the Elimination of All Forms of Discrimination against Women", "81. The Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW Convention”) was adopted in 1979 by the United Nations General Assembly and Albania ratified it on 9 November 1993. The implementation of the CEDAW Convention is monitored by the Committee on the Elimination of Discrimination against Women (“the CEDAW Committee”), which makes general recommendations to the States parties on any specific matters concerning the elimination of discrimination against women", "82. At its eleventh session in 1992, the CEDAW Committee adopted General Recommendation no. 19 on violence against women (A/47/38). It defined gender-based violence as “violence which is directed against a woman because she is a woman or that affects women disproportionately”. General Recommendation no. 19 stated that “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”. As regards comments on specific Articles of the CEDAW Convention, General Recommendation no. 19 further noted that “traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them of the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to their low level of political participation and to their lower level of education, skills and work opportunities”.", "83. On 26 July 2017 the CEDAW Committee updated its General Recommendation no. 19 by adopting General Recommendation no. 35 on gender-based violence against women (CEDAW/C/GC/35). According to General Recommendation no. 35, gender-based violence against women “is one of the fundamental social, political and economic means by which the subordinate position of women with respect to men and their stereotyped roles are perpetuated. Throughout its work, the [CEDAW] Committee has made clear that this violence is a critical obstacle to achieving substantive equality between women and men as well as to women’s enjoyment of human rights and fundamental freedoms enshrined in the [CEDAW] Convention. It takes multiple forms, including acts or omissions intended or likely to cause or result in death or physical, sexual, psychological or economic harm or suffering to women, threats of such acts, harassment, coercion and arbitrary deprivation of liberty. ... Gender-based violence against women may amount to torture or cruel, inhuman or degrading treatment in certain circumstances, including in cases of rape, domestic violence or harmful practices. ... When acts of gender-based violence against women amount to torture or cruel, inhuman or degrading treatment, a gender-sensitive approach is required to understand the level of pain and suffering experienced by women, and that the purpose and intent requirements for classifying such acts as torture are satisfied when acts or omissions are gender-specific or perpetrated against a person on the basis of sex”.", "84. The CEDAW Committee recommended that measures should be taken in the areas of prevention, protection, prosecution and punishment, redress, data collection and monitoring, and international cooperation in order to accelerate the elimination of gender-based violence against women.", "85. As regards protection, the CEDAW Committee recommended that States parties, among other things, “adopt and implement effective measures to protect and assist women complainants of and witnesses to gender-based violence before, during and after legal proceedings and ensure that all legal proceedings, protective and support measures and services concerning victims/survivors respect and strengthen their autonomy”.", "86. As regards prosecution and punishment, the CEDAW Committee recommended that States parties, among other things, “(a) ensure effective access for victims to courts and tribunals and that the authorities adequately respond to all cases of gender-based violence against women, including by applying criminal law and, as appropriate, ex officio prosecution to bring alleged perpetrators to trial in a fair, impartial, timely and expeditious manner and imposing adequate penalties; fees or court charges should not be imposed on victims/survivors; and (b) address factors that heighten the risk to women of exposure to serious forms of gender-based violence, such as the ready accessibility and availability of firearms, including their export, a high crime rate and pervasive impunity, which may increase in situations of armed conflict or heightened insecurity. Efforts should be undertaken to control the availability and accessibility of acid and other substances used to attack women”.", "87. As regards reparation, the CEDAW Committee recommended that States parties, among other things, “(a) provide effective reparations to victims/survivors of gender-based violence against women. Reparations should include different measures, such as monetary compensation, the provision of legal, social and health services, including sexual, reproductive and mental health services for a complete recovery, and satisfaction and guarantees of non-repetition. Such reparations should be adequate, promptly attributed, holistic and proportionate to the gravity of the harm suffered; and (b) establish specific funds for reparations or include allocations in the budgets of existing funds, including under transitional justice mechanisms, for reparations to victims of gender-based violence against women”.", "B. Council of Europe materials", "1. Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”)", "88. The Istanbul Convention was adopted by the Committee of Ministers on 7 April 2011. It was opened for signature on 11 May 2011 and came into force on 1 August 2014. Albania ratified the Istanbul Convention on 4 February 2013. The Istanbul Convention applies to all forms of violence against women, including domestic violence, and it provides a comprehensive framework to prevent, prosecute and eliminate violence against women and domestic violence and to protect victims.", "2. The European Convention on the Compensation of Victims of Violent Crimes", "89. The European Convention on Compensation to Victims was ratified by Albania on 26 November 2004 and it entered into force in respect of Albania on 1 March 2005. The Ministry of Justice is the Central Authority for the purpose of the European Convention on Compensation to Victims. The European Convention on Compensation to Victims requires its Contracting Parties, in the absence of compensation from other sources, to contribute to compensate the victims of intentional and violent offences, which have been committed on their territory and have resulted in bodily injury or death. Compensation should be awarded even if the offender has not been prosecuted or punished.", "90. Its Explanatory Report states that the European Convention on Compensation to Victims is not directly enforceable, and that it is for the “Contracting States to establish the legal basis, the administrative framework and the methods of operation of the compensation schemes”.", "3. Committee of Ministers’ Recommendation 2002(5) on the protection of women against violence", "91. In its Recommendation (2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe recommended, among other things, that member States should “have an obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether those acts are perpetrated by the state or private persons, and provide protection to victims”.", "92. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge, and take specific measures to ensure that children’s rights are protected during proceedings.", "C. Reports on acid violence", "1. United Nations Secretary-General report on violence against women", "93. In a report on violence against women of 20 August 2004 (A/59/281), the United Nations Secretary-General provided information about legislative, policy and other measures undertaken by various countries and other international institutions to combat all forms of violence against women, as well as crimes against women committed in the name of honour. Of particular relevance for the present case was the fact that Bangladesh had enacted, among other things, the Acid Control Act in 2002 and that a special tribunal had been established throughout the country to deal with cases related to violence against women.", "2. United Nations Special Rapporteur’s report on violence against women, its causes and consequences, on her mission to Bangladesh", "94. In 2013 the United Nations Special Rapporteur on violence against women conducted an official visit to Bangladesh in order to examine the situation of violence against women in the country. In her report to the United Nations General Assembly (A/HRC/26/38/Add.2), the Special Rapporteur stated, inter alia, as follows:", "“11. The prevalence of acid attacks remains problematic in the country, and these attacks occur within both the family and the community spheres. Civil society organizations reported 31 cases of acid violence in Bangladesh between January and August 2013. Of this total, 22 attacks were against adult women and 4 against girls. Likewise, in 2012, women and girls were the main victims of acid violence, with 58 women and 20 girls being targeted out of a total of 105 cases. Acid is generally thrown on the face or sexual organs of female victims when demands for sex or marriage proposals are refused. The ultimate aim is to damage the victim’s appearance in order to destroy her marriage prospects.", "...", "55. As regards acid attacks, the Acid Crime Control Act of 2002 stipulates that the punishment for killing a person with acid or injuring a person resulting in the loss of vision, hearing, or damage or disfigurement of the face, breasts or sexual organs can result in capital punishment or life imprisonment and a fine not exceeding one lakh taka (approximately USD 1190). Furthermore, damage for disfigurement to any part of the body will result in a 14-year prison sentence or at least 7 years of ‘rigorous imprisonment’.”", "3. European Parliament’s Committee on Civil Liberties, Justice and Home Affairs’ opinion on violence against women", "95. On 14 January 2014 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs gave an opinion to the European Parliament’s Commission on Combating Violence Against Women on a motion for a European Parliament resolution relating to violence against women. The opinion stated that violence against women could include, without limitation, “violence in close relationships, rape, including marital rape, dowry violence, female genital mutilation, acid throwing, forced marriage, sexual abuse, forced prostitution and pornography, trafficking of women and forced suicide”.", "4. Other relevant materials", "(a) Combating acid violence in Bangladesh, India and Cambodia", "96. In 2011 the Avon Global Centre for Women and Justice at Cornell Law School, the Committee on International Human Rights of the New York City Bar Association, the Cornell Law School International Human Rights Clinic and the Virtue Foundation, having regard to the highest recorded incidence of acid violence in Bangladesh, India and Cambodia, released a report on combating acid violence in those countries. The report emphasised that acid attacks were often perpetrated against women because they transgressed gender norms that relegate women to subordinate positions. Moreover, the duty to prevent human rights violations included an obligation to enact legislation designed to curb acid violence. In addition to legislation the governments should: (1) conduct appropriate investigations of acid attacks; (2) protect victims from threats that could undermine those investigations; and (3) prosecute and punish perpetrators of acid attacks.", "(b) Justice? What justice? Tackling acid violence and ensuring justice for survivors", "97. In 2015 the Thomson Reuters Foundation, Acid Survivors Trust International and J. Sagar Associates issued a comparative study on the existing legislation and its implementation to combat acid violence in four countries: Cambodia, Colombia, India and the United Kingdom. As regards the existence of a legal framework, the report stated that there was a special acid law in Colombia under which acid violence was a separate and specific criminal offence. There was no special legislation in India or in the United Kingdom to deal with acid violence. Instead, there were provisions in other criminal laws that made injury through the use of a corrosive substance a penal offence and provided for severe punishments for such injuries.", "98. As regards prosecutions for criminal offences, the report states that “intention to commit the offence – the mens rea – and the actual act constituting the offence – the actus reus – are both essential components. It is only when both are present that a crime is said to be completed. However, there are certain instances where the liability is made absolute, i.e. the mere occurrence of the incident is sufficient to constitute an offence irrespective of the presence or absence of intention. The report states that section 20 of the United Kingdom’s Offences Against the Person Act (‘OAPA’), which does not apply to Scotland, makes it an offence to inflict grievous bodily harm upon another person without any requirement to intend to commit such harm. Charges may be brought under this provision where bystanders have been incidentally injured as the result of an attack. On the other hand, under section 29 of the OAPA, an offence is said to be committed regardless of whether injury is actually caused by the commission of the offence, provided that the offender had the requisite intent”.", "99. In so far as penalties are concerned, the report added that “the laws usually provide for a spectrum of punishment and the judges decide on the punishment within the spectrum, based on a variety of factors using their discretion. In India, the considerations for increased or decreased punishments are very erratic and there are no clear sentencing guidelines. In comparison, the sentencing manual of the Crown Prosecution Service of England and Wales notes the use of acid as a factor that points to higher culpability of the offender thereby affecting the severity of the punishment. In Colombia, the sentence is also dependent on the part of the body that is affected, and a deformity of the face is considered to be more severe”.", "IV. RELEVANT NATIONAL AND INTERNATIONAL MATERIAL CONCERNING THE SITUATION OF WOMEN IN ALBANIA", "A. National reports", "1. National population-based surveys of the Institute of Statistics", "100. In March 2009 the national Institute of Statistics (INSTAT) released a research report entitled “Domestic violence in Albania: a national population-based survey” on the basis of data collected in 2007. The purpose of the 2007 national survey was to generate reliable data and findings about the nature and prevalence of domestic violence in the country, which would be used to inform the development of effective prevention, protection, and legal measures and policies. INSTAT carried out fresh surveys in 2013 and 2018, when women were asked about “ever” and “current” experiences with each of the different forms of domestic violence.", "101. Both national population-based surveys confirmed that domestic violence against women was a widespread problem in families and communities throughout Albania. The findings revealed that the proportion of women who had “ever” experienced one form of domestic violence had increased from 56.09% in 2007 to 59.4% in 2013. It was well documented that women continued to experience multiple types of domestic violence concurrently in their marriage or intimate relationships, including multiple forms of psychological, physical and sexual violence.", "102. In 2007 and 2013 battered women revealed they often experienced more or less the same domestic violence-related injuries of varying degrees of severity. In 2007 48.3% of women that experienced domestic violence reported they were injured with cuts, bruises or aches, while in 2013 only 18.8% of “ever” physically abused women reported experiencing domestic violence-related injuries.", "103. The 2018 national population-based survey, which was released in March 2019, was the third attempt in Albania to collect data on violence against women and girls, including not only domestic violence, but also dating violence, non-partner violence, child sexual abuse, sexual harassment and stalking. Data in the 2019 survey provided evidence that violence against women and girls in Albania was widespread and that it affected the majority of women. The 2018 survey revealed that 52.9% of women aged between 18 and 74 had “ever” experienced one or more of the five different types of violence (intimate partner violence, dating violence, non-partner violence, sexual harassment and/or stalking) during their lifetime and 36.6% of women “currently” experienced violence. 75.4% of women reported that domestic violence against women was a major problem in Albania. 70.8% of women reported that sexual violence against women and girls was a major problem in Albania, 69.9% reported that sexual harassment of women and girls was a major problem, and 68.4% reported that stalking of women was a major problem in Albania. Given these findings, it is not surprising that the majority of women maintained it was very important to have laws in Albania that protected women and girls from violence in their marriage or families (83.0%) and from sexual assault and rape (81.9%).", "104. The 2018 survey also measured social norms related to violence against women and girls, women’s perceptions of the seriousness of violence against women and girls, and the importance of having legislation related to violence against women and girls. As regards social norms related to domestic violence, the 2018 survey found that 52.2% of women aged between 18 and 74 maintained that all or most people in the community believed violence between a husband and wife was a private matter and that others should not intervene, and 46.5% maintained that all or most people in the community believed a woman should tolerate some violence to keep her family together. In addition, 27.5% of women maintained that all or most people in the community believed that when a woman was beaten by her husband, she was partly to blame or at fault and that a woman should be ashamed or embarrassed to talk to anyone outside of her family about abuse or violence in her marriage. These social norms can contribute to the prevalence of intimate partner domestic violence against women and keep battered women trapped in abusive and violent relationships.", "2. Centre for Legal Civic Initiatives Report", "105. In November 2010 the Centre for Legal Civic Initiatives released a report on the implementation of the Domestic Violence Act. The report monitored protection orders and emergency protection orders issued by Tirana District Court from 1 June 2009 to 1 June 2010. According to the report, there had been a marked increase in the number of women reporting incidents to the police, which was due to an increased awareness among women of the importance of reporting domestic violence and of better preparation and qualifications on the part of the relevant bodies that received and assisted victims of domestic violence.", "3. Commissioner for Protection from Discrimination", "106. The Commissioner for Protection from Discrimination (“the Commissioner against Discrimination”) was established by the Anti ‑ Discrimination Act (Law no. 10221 of 4 February 2010), and is the national body responsible for ensuring equality and effective protection from discrimination.", "107. The 2011 annual report of the Commissioner against Discrimination stated that “women suffer from domestic violence”. The 2012 annual report stated that “several cases of violence against women had been reported, which sometimes had resulted in the loss of lives of battered women. According to statistics provided by the General Directorate of Police, 2,526 cases of domestic violence had been identified, which marked an increase by 345 cases compared to the previous year. Such increase ha[d] also been reflected in the growing number of applications for protection orders, which had totalled 1,562 in 2012, that is 217 more applications than the previous year”.", "B. International reports", "1. Council of Europe materials", "(a) Report by the Group of Experts against violence against women and domestic violence", "108. The Istanbul Convention’s monitoring is ensured by two distinct bodies: the Group of Experts against violence against women and domestic violence (GREVIO), an independent expert body; and the Committee of the Parties, a political body composed of representatives of the States Parties to the Istanbul Convention.", "109. GREVIO’s 2017 evaluation report for Albania (GREVIO/Inf(2017)13) stated that “official statistics on cases of domestic violence portray a mixed picture, where elevated figures are the flipside of efforts aiming at encouraging reporting. From 2010 to 2014, reported cases of domestic violence rose sharply with approximately three times more women victims than men. Domestic violence far exceeds all other crimes as the criminal offence with the largest number of victims and in 2015, domestic violence related deaths alone represented 37% of all crime driven deaths”.", "110. GREVIO’s evaluation report further stated that “data on domestic violence allows drawing a plausible portrait of the reality of domestic violence in Albania. Data on other forms of violence against women such as sexual violence, however, barely hint at the existence of a phenomenon which by many accounts remains largely unchartered territory, fenced off by taboos and severe under-reporting”. It encouraged the authorities to “make domestic violence against women and the gendered nature of other forms of violence against women more visible in the crime statistics presented to the public, by clearly identifying the number of women victims per type of offence. This would include the visible presentation to the public of information on the number of homicides of women at the hands of men (gender-related killing of women); and develop data categories on the type of relationship between perpetrator and victim for all forms of violence against women that would allow the nature of their relationship to be more specifically documented”.", "111. GREVIO’s evaluation report stated, in so far as the victims’ right to seek compensation is concerned, as follows:", "“115. Pursuant to Articles 61 to 68 of the [Code of Criminal Procedure], victims of violence are entitled to apply within criminal proceedings for compensation in connection with damages suffered for the criminal act. Compensation claims settled in criminal proceedings are limited to economic damage and their payment depends on the outcome of the criminal trial. Alternatively, victims may file a compensation claim extended to all forms of damage, including non-pecuniary damage, under Article 625 of the Civil Code. There is no available information to indicate that any victim of violence against women, including domestic violence, ever instituted or benefited from such proceedings. Reports submitted to GREVIO point to elevated court fees as one of the factors preventing victims’ access to compensation, despite the principle established by law that victims of domestic violence are exempted from court fees. Moreover, there is no state compensation scheme available to victims of violence against women in Albania. No reservation was entered into by Albania exempting it from implementing Article 30, paragraph 2 of the Convention on subsidiary state compensation for serious bodily injury or impairment of health.”", "112. In the light of the measures identified in GREVIO’s evaluation report, the Committee of the Parties recommended that the government of Albania take action to, among other things, ensure victims’ access to civil remedies against State authorities in particular by informing victims of their rights and raising awareness among public officials in relation thereto, and establish and fund appropriately an effective system of legal aid for the victims of all forms of violence against women covered by the Istanbul Convention and promote the exercise of victims’ right to access legal aid.", "(b) Reports by the Commissioner for Human Rights", "113. Following an official visit to Albania from 27 October to 2 November 2007 as part of his regular country missions, the Council of Europe Commissioner for Human Rights released his report on 18 June 2008 (CommDH(2008)8), the relevant part of which states that violence against women, particularly domestic violence, was a widespread human rights violation which had been under-reported, under ‑ investigated, under-prosecuted and under-sentenced in Albania. There were an unquantified number of offenders enjoying impunity as the crime was still seen as a private issue and therefore seldom reported.", "114. Following an official visit to Albania from 23 to 27 September 2013, the Commissioner released his report on 13 January 2014 (CommDH(2014)1), in which it was noted that in May 2013 amendments to the Legal Aid Act had been enacted which tasked the State Commission with granting exemptions from the payment of court fees under certain conditions. Those amendments specified that beneficiaries of legal aid, when filing civil or administrative complaints with a court, may be exempted from court fees (and court expenses) if they prove that they are, among other things, victims of domestic violence. The request would be examined by the State Commission for Legal Aid within ten days of submission. If the Commission did not decide on the request within ten days or refused it, the court could decide on the request for a fee exemption at the preliminary hearing.", "2. CEDAW Committee’s Concluding Observations in respect of Albania", "115. Albania has submitted three periodic reports to the CEDAW Committee on the implementation of the CEDAW Convention.", "116. In its Concluding Observations of 2003 on the combined initial and second periodic reports submitted by Albania (A/58/38), the CEDAW Committee expressed “concern about the high incidence of violence against women, including domestic violence” and the “lack of systematic data collection on violence against women, in particular domestic violence”. It called upon Albania “to adopt legislation on domestic violence and to ensure that violence against women is prosecuted and punished with the required seriousness and speed” and to “devise a structure for systematic data collection on violence against women, including domestic violence”.", "117. In its Concluding Observations of 16 September 2010 on the third periodic report submitted by Albania (CEDAW/C/ALB/CO/3), the CEDAW Committee remained “concerned about the continued high prevalence of violence against women in Albania”. It was particularly concerned “that domestic violence is not appropriately sanctioned and criminalized” and about “the high rate of suicide among female victims of domestic violence, about gaps in the [Domestic Violence Act] and its implementation and the lack of statistical data”. It recommended, among other things, that “[the authorities] strengthen [their] efforts to ensure that female victims of violence have immediate protection”, that “public officials, especially law enforcement officials, members of the judiciary, health-care providers and social workers, are fully sensitized to all forms of violence against women” and that “structures be established to help female victims of violence to rebuild their lives”.", "118. In its Concluding Observations of 25 July 2016 on the fourth periodic report submitted by Albania (CEDAW/C/ALB/CO/4), the CEDAW Committee was concerned “about the lack of implementation of the legislation on gender equality and non-discrimination, as well as the lack of monitoring of implementation of such laws and policies” and that “women, especially those belonging to disadvantaged and marginalized groups, remain unaware of their right to legal aid and continue to face significant legal and practical barriers in gaining access to justice, which is reflected in the low number of complaints filed. It is also concerned about the widespread problem of non-execution of court orders, including orders concerning the payment of alimony”. The CEDAW Committee was also concerned that gender-based violence against women remained prevalent, which was reflected by “(a) the low rate of reporting of cases of gender ‑ based violence against women owing to women’s limited access to legal aid services, especially in rural and remote areas, as well as the absence of hotline services for women who are victims of such violence; (b) the insufficient implementation of the national referral mechanism aimed at preventing and providing protection from gender-based violence, in particular at the local level, owing to the lack of coordination among responsible entities and the lack of the necessary skills and capacity among the responsible staff; (c) the insufficient number of shelters for women who are victims of gender-based violence and the restrictive criteria for admission to such shelters, as well as the lack of medical and psychological rehabilitation services for women; and (d) the frequent failure to enforce protection orders and emergency protection orders”.", "3. European Commission Progress Reports", "119. The European Commission issues annual progress reports on countries which wish to accede to the European Union. The progress reports analyse, among other things, the capacity of such countries to implement European standards.", "120. The 2008 Albania Progress Reports (SEC(2008) 2692) stated, among other things, that “the strategy on the prevention of domestic violence has not been enforced due to lack of implementation mechanisms. The proportion of women having suffered from domestic violence is significant and increasing. What is needed now is to allocate sufficient human and financial resources to ensure full implementation of the existing legislation”.", "121. The 2009 Progress Report (SEC(2009) 1337) stated, among other things, that “domestic violence remains widespread. Many incidents went unreported. Sound data is missing. Further measures are required to strengthen the level of protection for women victims of domestic violence, including media awareness campaigns and specialised training for judges”.", "122. The 2010 Analytical Report (SEC(2010) 1335) stated that “[d]omestic violence is a persistent phenomenon that affects numerous families in Albania and is an issue of serious concern ... [C]ases continue to be largely under-reported and insufficiently investigated and prosecuted, especially in rural areas. Relatively few complaints lead to criminal prosecutions, as it is generally the duty of the victim to initiate this procedure. The duty only falls upon the prosecutor to initiate a prosecution in cases that result in death, serious injury or threats to life. The protection of women and other victims against all forms of violence needs to be considerably strengthened”.", "4. Amnesty International report", "123. In March 2006 Amnesty International, on the basis of its own research, including the monitoring of documentation in criminal proceedings and reports in the Albanian media over a three-year period, as well as research by Albanian non-governmental organisations, professionals and academics, released a report on Albania entitled “Violence against women in the family: ‘It’s not her shame’”. The report stated, among other things, as follows:", "“At least a third of all women in Albania are estimated to have experienced physical violence within their families. They are hit, beaten, raped, and in some cases even killed. Many more endure psychological violence, physical and economic control ... Husbands, former husbands and partners are responsible for most of these abuses, but other family members may take part in or support acts of violence, which may often be condoned by the wider community in which the woman lives.", "Social attitudes and cultural values – not just of the wider public, state agents such as police, but also women themselves – encourage women to accept violence. This is not inevitable, nor does it mean that the state can abdicate from responsibility. Albania is responsible for failing to address such attitudes, which maintain women’s continuing abuse. Due to a strong sense of shame and lack of confidence in the police, women rarely call the police, and when exceptionally they do call, the police generally fail to recognize violence in the family as a criminal matter and frequently fail to investigate allegations of domestic violence. Moreover, prosecutors will generally only bring charges in cases of death or serious injury or threats with firearms or other weapons. Women are generally not encouraged to bring complaints against their attackers, and receive no effective protection from assaults or threats, including with firearms, by their husbands and relatives. Those responsible – except in cases of death or very serious injury – are not often brought to justice. There is a lack of consistency in the judiciary’s approach and in at least one case known to Amnesty International courts have shown leniency towards perpetrators who kill women on grounds of ‘honour’.”", "124. The report called for “a coordinated response to violence against women in the family, an integrated multi-agency approach that includes not only law enforcement and judicial authorities, but also health care and education professionals ... Where prevention fails, law enforcement officials and prosecutors should record and monitor reported incidents, act to protect victims of violence, and respond promptly and effectively to allegations of, or threats of, violence against women. Prosecutors and judiciary should ensure that perpetrators are brought to justice. Women should have prompt access to judicial mechanisms affording protection, and to appropriate health care and shelters providing physical protection, medical assistance and psychological support”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "125. The applicant complained under Articles 2, 3 and 8 of the Convention that the authorities had failed to protect her life. She further complained about the authorities’ failure to conduct a prompt and effective investigation leading to the identification, prosecution and punishment of the assailant.", "126. Being the master of the characterisation to be given in law to the facts of the case, the Court is not bound by the characterisation given by the applicant or the Government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). The Court considers that the applicant’s complaints raised under Articles 3 and 8 should be examined from the standpoint of Article 2 under its substantive and procedural aspects, in so far as they relate to the applicants’ right to life. The relevant part of this provision reads as follows:", "“Everyone’s right to life shall be protected by law.”", "A. Admissibility", "1. The parties’ submissions", "127. The Government submitted that the applicant had never raised her complaints before the domestic courts. She had also failed to bring a civil claim for damages under Articles 608, 625 and 640 of the Civil Code, as well as under the unifying decision of the Supreme Court Joint Benches of 14 September 2007, or a civil claim under Article 61 of the CCP in the course of criminal proceedings. The applicant’s claim seeking damages before the district court had been withdrawn as a result of her failure to appear at the hearing. Moreover, the applicant had abused her right of application since she had failed to appeal against the prosecutor’s decision staying the investigation and to make use of any other remedies. No final decision had yet been issued by the authorities.", "128. The Government also submitted that the application had been lodged outside the six-month time-limit, the proceedings having been stayed on 26 February 2010 and the final decision being that of 30 May 2013. The applicant had been duly informed of the ongoing investigation.", "129. The applicant submitted that there was no effective remedy of which she could make use. She had not addressed the Court with a direct application for compensation; instead her complaint had been focused on the Government’s inability to protect her life and health. A civil claim for damages would not have led to the identification and punishment of those responsible for the violation of Article 2 of the Convention. In any event a remedy under the Civil Code could be effective only after the perpetrator had been identified. The remedy under Article 61 of the CCP could be used only in the event that the case was sent for trial before a domestic court. Moreover, the Government had failed to submit any examples of domestic practice concerning the use of violence against women. No compensation had ever been awarded to women who had suffered violence. The domestic case-law submitted by the Government was not applicable in the applicant’s case since all those cases were different from hers.", "130. The applicant further submitted that the authorities had not been diligent and had only replied to her request for information for the first time on 17 April 2012. Moreover, the prosecutor had failed to inform the applicant of his investigative acts and had also failed to provide her with a copy of those acts, thus making it impossible for the applicant to challenge those acts. In any event, no appeal against the prosecutor’s decision staying the proceedings was provided by law. The authorities had not been able to identify or punish the perpetrator for the violation of Article 2 of the Convention. The applicant’s situation was thus an ongoing one.", "2. The Court’s assessment", "(a) Applicability of Article 2", "131. With regard to the applicability of Article 2 in the present case, the Court notes that the applicant alleged that her injuries had been inflicted by an individual and not a State agent. The Court observes, however, that the absence of any direct State responsibility for the death of a person does not exclude the application of Article 2 of the Convention (see, for example, Yotova v. Bulgaria, no. 43606/04, § 68, 23 October 2012).", "132. The Court further notes that the protection of this provision of the Convention may not only be relied upon in the event of the death of the victim of violent acts. Article 2 also comes into play in situations where the person concerned was the victim of an activity or conduct, whether public or private, which by its nature put his or her life at real and imminent risk and he or she suffered injuries that appeared to be life-threatening when they occurred, even though the person ultimately survived (see, among other authorities, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 140, 25 June 2019; Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004 ‑ XI; and Soare and Others v. Romania, no. 24329/02, § 108, 22 February 2011). In the present case the Court notes that the applicant was the subject of a violent attack which resulted in grievous injuries and pain, as well as disfigurement of 25% of her body. She was sent to hospital in a critical condition (see paragraph 6 above), and according to the report of 18 December 2009, her life would have been in danger if no specialist medical aid had been given (see paragraph 33 above). The Court therefore considers that the method used by the assailant was of a nature and intensity likely to endanger the life of the applicant. Article 2 of the Convention is therefore applicable in this case.", "(b) Failure to observe the six-month rule under Article 35 § 1 of the Convention", "133. The Court reiterates that the purpose of the six-month rule under Article 35 § 1 of the Convention is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 129, 19 December 2017, and Opuz v. Turkey, no. 33401/02, § 110, ECHR 2009). According to its well-established case ‑ law, where no domestic remedy is available, the six-month period runs from the date of the act complained of.", "134. In that regard, the Court notes that the applicant was assaulted by an unknown person on 29 July 2009. An investigation was opened by the prosecutor, who on 2 February 2010 stayed the investigation. The applicant was never informed of the outcome of the investigation. More specifically, it was only on 17 April 2012, after the request for information made by the Centre (see paragraph 35 above), that the prosecutor informed it that the criminal investigation had been stayed. However, the prosecutor informed the Centre that the case file had been transferred to the police for further action in order to identify the assailant. On 23 May 2012 the police informed the Centre that the investigation was ongoing. It was not until 8 January 2014 that the prosecutor informed the Centre that the investigation had been stayed owing to the non-identification of the assailant (see paragraph 41 above).", "135. The Court notes that since the authorities informed the Centre on 8 January 2014 that the investigation had been stayed owing to the non-identification of the assailant, that event may be considered to constitute the date on which the applicant became aware of the ineffectiveness of the remedies in domestic law. The Court also notes that before that, the applicant had contacted the authorities several times for information about the progress of the investigation. Given that these circumstances indicate that the applicant acted with the requisite diligence in lodging her application once it became apparent that no redress for her complaints was forthcoming, the Court considers that the relevant date for the purposes of the six-month time-limit should not be considered to be a date earlier than 8 January 2014 (see, for example, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 258-69, ECHR 2014).", "136. In the specific context of the present case, it follows that the applicant’s complaints have been lodged within the six-month time-limit provided for in Article 35 § 1 of the Convention. The Court therefore dismisses the Government’s preliminary objection in this regard.", "(c) Failure to exhaust domestic remedies", "137. The Court notes that the Government have raised two objections based on the requirement to exhaust domestic remedies. In the first place, they contended that the applicant had failed to bring a claim for damages and, secondly, they argued that the applicant had not challenged the prosecutor’s decision staying the investigation, as a result of which no final decision had been given.", "138. As regards the Government’s first objection, the Court notes that an investigation was opened by the prosecutor. The applicant had clearly expected to be informed about the outcome of the investigation and to be told that the perpetrator had been identified and punished in accordance with the criminal law. In this connection, the Court observes that, in view of the outline of domestic practice submitted by the Government, it would be very difficult for the applicant to prove her case in the event of her bringing civil proceedings under the Civil Code, seeking damages for the injuries sustained, without the perpetrator being identified. As regards a civil claim in the course of criminal proceedings under Article 61 of the CCP, the Court notes that such a claim could be submitted only if a case had been sent to trial before the domestic courts. In circumstances such as those prevailing here, with the case never having come to trial, the Court does not see how this remedy could have been effective (see also paragraph 111 above).", "139. In any event, the Court considers that efficient criminal ‑ law provisions are required to ensure the effective deterrence against threats to the right to life. The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State’s obligations under Article 2 of the Convention in cases such as the present one, because their aim is to obtain an award of damages rather than to prevent, suppress and punish breaches of such provisions (see Akelienė v. Lithuania, no. 54917/13, § 69, 16 October 2018). It therefore dismisses the Government’s first objection based on non-exhaustion of domestic remedies in this respect.", "140. As regards the Government’s second objection, the Court observes that the applicant was barred from challenging the prosecutor’s decision to stay the criminal investigation, as the CCP did not provide for any such right. In its decision of 18 January 2013 the Constitutional Court noted that there was no remedy under domestic law against a prosecutor’s decision staying an investigation (see paragraph 62 above). It was at the discretion of the prosecutor to reopen an investigation or not, as provided for under Article 326 of the CCP (see paragraph 59 above; see also Pihoni v. Albania, no. 74389/13, § 95, 13 February 2018). In these circumstances, the Court dismisses the Government’s second objection.", "(d) Conclusion", "141. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicant’s submissions", "142. Under Article 2 of the Convention the applicant submitted that the acid attack against her had been grievous and had threatened her right to life. She submitted that the legislative framework in place did not provide sufficient protection for women against violence as the authorities had failed to comply with their obligations under the Istanbul Convention. Article 88 of the Criminal Code, for example, did not conform to Article 49 of the Istanbul Convention. Moreover, that convention was not applied by the authorities at the domestic level in cases of violence against women. In the light of the statistical data on the frequency of violence against women, the authorities ought to have known and to have taken the preventive measures necessary to protect the applicant. She also submitted that the investigation had not been effective, thorough and expeditious. The authorities had failed to take the necessary measures, in that they had been unable to examine the type of substance found in the container, or to examine the container which the perpetrator was holding, or to identify the fingerprints on the container, or to examine the applicant’s clothes. Furthermore, no measures had been taken to establish how the corrosive substance had been bought or how it had been sourced by the perpetrator. The applicant had not been informed of the continuation of the investigation or about the prosecutor’s decision discontinuing the investigation against E.A. The authorities had failed to raise suspicions in regard to any other person and no further action had been taken by them since the staying of the investigation. The applicant had not been involved in the investigation and she had never been provided with the documentation detailing the investigative actions undertaken.", "(b) The Government’s submissions", "143. The Government submitted that the applicant had not been subjected to domestic violence or violence under Article 2 of the Convention. The legislative framework then in force provided adequate protection for victims of domestic violence in the form of the Constitution, several conventions on women rights that had been ratified by Albania, and a specific law on domestic violence that was in place. Moreover, in 2012 the Criminal Code had been amended to provide a specific offence of domestic violence and abuse, and a national action plan had been put into place.", "144. As regards the general situation concerning domestic violence in Albania, the Government submitted some information from the General Directorate of the State Police ( Drejtoria e Përgjithshme e Policisë së Shtetit ) covering the period from January to December 2014. According to that information the police had identified 4,121 domestic violence criminal offences and other criminal offences which had occurred in the domestic environment, of which the police had instituted of their own motion judicial proceedings for the issuance of a protection order or an emergency protection order in 2,422 instances. The police had instituted criminal proceedings and sent the file to the prosecutor in respect of 1,797 of the remaining cases. The total number of victims had been 3,090, of whom 1,798 had been the spouse of the perpetrator. 551 perpetrators had been arrested whilst committing the offence; 48 had been detained and 147 others were still being sought by the police. In 2014, 17 cases of murder had been identified, resulting in the deaths of 22 people. There had been 10 female victims of family homicides, of whom 6 had been the spouse of the respective perpetrator.", "145. The Government further submitted that, in order to protect the victims of domestic violence, the police had undertaken various actions, including the following: the issuing of an action plan dated 14 April 2014 “On the implementation of the National Action Plan 2011-2015”; the preparation of civil claims for the issuance of protection orders and emergency protection orders; follow-up of the implementation of the domestic courts’ decisions; the institution of criminal proceedings against anyone breaching the protection orders; cooperation with other institutions and civil society organisations; various campaigns in different cities in Albania; and the training of police officers.", "146. Turning to the present case, the Government submitted that the investigation had been effective and thorough, the applicant having been able to make effective use of all the remedies for the realisation of her rights. The prosecutor had started the investigation immediately and had undertaken several investigative actions. The prosecutor had also arrested the applicant’s former husband. The applicant had not challenged the prosecutor’s decision staying the investigation. The investigation had been stayed for reasons that were not dependent on the parties’ behaviour. The authorities had not denied the applicant her right to information and cooperation during the investigation. It had been the applicant who had not given proper assistance to the authorities.", "2. The Court’s assessment", "(a) Substantive aspect", "147. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Mastromatteo v. Italy [GC], no. 37703/97, § 67, ECHR 2002 ‑ VIII). It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998 ‑ VIII; Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 244, ECHR 2011; and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 108, 31 January 2019).", "148. Bearing in mind the difficulties inherent in policing modern societies, the unpredictability of human conduct, and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation to take preventive operational measures must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every alleged risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual resulting from the criminal acts of a third party. Where the Court finds that the authorities knew or ought to have known of that risk, it must assess whether they took measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, among many other authorities, Osman, § 116; Fernandes de Oliveira, § 110; and Nicolae Virgiliu Tănase, § 136, all cited above).", "149. In the light of the foregoing, the Court must establish whether there existed an effective legislative framework in Albania at the time and whether the authorities knew or ought to have known of the existence of a real and immediate risk to the life or physical integrity of the applicant.", "150. The Court observes at the outset that the facts of the case concern a serious acid attack on the applicant perpetrated by an unidentified individual. The Court notes that in Albania a criminal offence is subject to public prosecution, unless it falls into the category of crimes subject to private prosecution. At the relevant time, the Criminal Code provided for a number of offences committed against a person’s life or health. These offences, including that provided for in Article 88 of the Code, under which the prosecutor opened the criminal investigation into the acid attack, are subject to investigation by the prosecutor of his own motion (see also paragraph 63 above). The Court is satisfied that, in the absence of any arguments by the applicant that the criminal-law provisions were ineffective, there existed an effective legislative framework in Albania at the relevant time concerning crimes against life and health. The Court further notes, although not relevant to the present case, that, following legislative amendments in 2012 and 2013, the Criminal Code contains specific provisions proscribing domestic violence and battery, and criminalising as an aggravating circumstance the commission of another offence during or after a court protection order given in relation to the occurrence of domestic violence (see paragraphs 65 and 66 above).", "151. The Court further notes that the applicant suspected that her former husband had been the assailant behind the acid attack, bearing in mind also the domestic violence to which she alleged she had been subjected in the past. The applicant complained about her former husband’s violence against her for the first time when she made the statement before the district prosecutor after the acid attack on 29 July 2009. The applicant’s statement was corroborated by the applicant’s family members. However, it does not appear that the applicant at any time before the attack brought to the authorities’ attention any risks posed to her life by her former husband, which would have triggered the authorities’ positive obligation to take preventive measures or other reasonable steps to protect the applicant’s life (compare and contrast Osman, cited above, and Civek v. Turkey, no. 55354/11, 23 February 2016). In the Court’s view, in the circumstances of the present case, the Court cannot see how the State authorities could be held responsible for not having prevented the attack against the applicant.", "152. It follows that there has been no violation of Article 2 of the Convention with regard to the authorities’ positive obligation to protect the applicant’s life and physical integrity.", "(b) Procedural aspect", "153. The Court observes that the positive obligation of the State to safeguard the lives of those within its jurisdiction requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and, where appropriate, the identification of those responsible with a view to their punishment (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 172, 14 April 2015). Whenever there are any doubts about the occurrence of domestic violence or violence against women, special diligence is required of the authorities to deal with the specific nature of the violence in the course of the domestic proceedings (see Volodina v. Russia, no. 41261/17, § 92, 9 July 2019).", "154. A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see, among many other authorities, Talpis v. Italy, no. 41237/14, § 106, 2 March 2017). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating any use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 237, 30 March 2016). In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests (see Giuliani and Gaggio, cited above, § 303).", "155. The Court will now examine whether the investigation carried out by the State authorities met the requirements of the procedural limb of Article 2 of the Convention. It will do so by having regard to the general situation of women in Albania in which the acid attack occurred and the authorities’ response in investigating the incident.", "156. The Court notes that, since at least 2003, international reports in respect of Albania have repeatedly pointed out the high prevalence of violence against women (see paragraphs 108-24 above). Moreover, the national reports lend support to the view that between 2007 and 2013 violence against women was a widespread problem (see paragraphs 100-07 above). Between 2006 and 2012 the international reports further noted that violence against women was under-reported, under-investigated, under-prosecuted and under-sentenced. They suggested that the police and prosecuting authorities manifested an ineffectual approach to violence against women on the grounds of “social attitude and cultural values” and that a climate of leniency or impunity prevailed towards perpetrators of violence against women (see paragraphs 113, 117 and 120-22 above). In its 2010 Concluding Observations, the CEDAW Committee recommended, among other things, that “public officials, especially law enforcement officials [and] members of the judiciary” become fully “sensitized to all forms of violence against women”. In the light of the foregoing, the Court considers that, at the time of the attack, there existed prima facie a general climate in Albania that was conducive to violence against women. Moreover, the 2017 GREVIO evaluation report noted that domestic violence exceeded “all other crimes as the criminal offence with the largest number of victims” (see paragraph 109 above).", "157. Where an attack happens in a general climate as described above, the investigation assumes even greater importance and the investigative authorities should be more diligent in conducting a thorough investigation, in order to secure the effective implementation of the domestic laws which protect the right to life. Such diligence to investigate, among other things, an acid attack – which, according to the CEDAW Committee and other reports referred to in paragraphs 93-99 above, may be a practice of “gender ‑ based violence” against women – has been reiterated in General Recommendation no. 19, according to which “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”, as has been firmly re-established in General Recommendation no. 35 (see paragraphs 82 and 86, as well as paragraph 89 above).", "158. Turning to the effectiveness of the investigation in the present case, the Court notes that an investigation into the acid attack was opened by the prosecutor and that several investigative actions were carried out in respect of E.A., upon whom a compulsion order was imposed. His apartment was searched and several items owned by him were seized. Further investigative steps comprising the following measures were undertaken: an on-site examination was carried out, several persons were questioned, footage from the video cameras of two nearby banks was obtained and examined, forensic reports were obtained and other expert reports were ordered. Nevertheless, at no point were the authorities able to establish the nature of the substance found in the container and on the applicant’s clothes. No chemical or toxicology expert report was obtained as the Faculty of Natural Sciences and the Institute of Scientific Police either lacked the necessary specialist equipment or it was not within their competence to compile such reports (see paragraphs 30-31 above).", "159. In this regard, it is difficult for the Court to accept that an investigative measure of crucial importance for the case, namely an expert report to enable the identification of the substance used to attack the applicant, was not carried out with due expedition and determination. It is up to the domestic authorities to sort out the issues of competence or to establish specialised institutions to carry out such procedural steps which are decisive for the progress of the investigation and to meet the procedural obligations under Article 2 of the Convention.", "160. The Court considers that the circumstances of the attack on the applicant – which has the hallmarks of a form of gender-based violence – should have incited the authorities to react with special diligence in carrying out the investigative measures. Whenever there is a suspicion that an attack might be gender-motivated, it is particularly important that the investigation is pursued with vigour.", "161. Lastly, the Court notes that the final decision in the case – that of 2 February 2010 to stay the investigation, which was not amenable to appeal (see paragraph 140 above) – does not provide a definite answer as to the nature of the substance found in the container and on the applicant’s clothes. Moreover, despite the applicant’s repeated enquiries about the progress of the investigation, she was not given any information or documents in response. She could not therefore challenge any investigative actions (or omissions) or request the authorities to take other measures (see Pihoni, cited above, § 95). Nor could she bring a claim for damages in the absence of an identified perpetrator (see paragraph 138 above).", "162. Accordingly, the criminal investigation in question, which has been stayed since 2010 by the prosecutor, cannot be described as an effective response by the authorities to the acid attack. There has thus been a violation of Article 2 of the Convention as regards the State’s procedural obligation.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "163. The applicant also complained about the authorities’ failure to provide psychotherapy or rehabilitation treatment, and about the absence of financial compensation. She relied on Article 8 of the Convention, the relevant part of which reads as follows:", "“1. Everyone has the right to respect for his private ... life ...”", "164. The Government did not submit any particular observations.", "165. The Court considers, on the basis of the material submitted to it, that there is no appearance of any violation in this regard, and therefore rejects this complaint as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "166. The applicant complained of a violation of Article 13 of the Convention taken in conjunction with Article 2 in view of the fact that she could not challenge the prosecutor’s acts and that she could not apply for compensation for the actual attack.", "167. Article 13 of the Convention reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "168. As regards the applicant’s inability to challenge the prosecutor’s acts, the Court considers that this complaint is linked to the one examined above under Article 2 of the Convention and must therefore likewise be declared admissible. However, having regard to its findings under Article 2 (see paragraphs 161 and 140 above), it is not necessary to examine the merits of this complaint.", "169. As regards the possibility for the applicant to obtain compensation from the perpetrator, the Court also considers that this complaint is linked to the one examined under Article 2 above and must therefore likewise be declared admissible. However, having regard to its findings under Article 2 (see paragraphs 161 and 138 above), it is not necessary to examine the merits of this complaint.", "170. As regards the possibility for the applicant to obtain compensation from the State, the Court observes that the proceedings relating to her claim for damages were discontinued by the Tirana District Court on 30 May 2013 because the applicant and her lawyer had failed to put in an appearance (see paragraph 53 above). The Court notes that the applicant did not provide any explanation or any evidence that the reason for her failure to appear in the court hearings was related to her inability to pay court fees. Nor did she submit that the District Court had dismissed her request for exemption from the requirement to pay court fees before deciding to discontinue the proceedings. In any event. the applicant’s claim for damages had not been quantified, in respect of which court fees would be determined as a percentage of the claim. Accordingly, in the absence of any substantiation, this part of the complaint must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARITCLE 14 OF THE CONVENTION", "171. Lastly, the applicant complained under Article 14 of the Convention that the authorities had remained passive even though she had voiced suspicions regarding her former husband. The authorities’ actions had shown that they were discriminating against her because of her gender.", "172. Having regard to the fact that the Court has already examined the circumstances of this case under Article 2 of the Convention (see, in particular, paragraphs 156 and 157 above), it does not find it necessary to examine the admissibility or merits of this complaint.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "173. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "174. The applicant claimed 3,730.20 euros (EUR) in respect of pecuniary damage ‒ consisting of the expenses the applicant had incurred for her treatment in Italy ‒ and 4,938,469 Albanian leks (ALL) (approximately EUR 36,452) in respect of loss of profits, this amount representing her salary for a period of one year. The applicant further claimed ALL 9,890,004 (approximately EUR 73,000) in respect of non ‑ pecuniary damage consisting of: ALL 4,945,002 in respect of damage to her physical and psychological integrity; ALL 2,472,501 in respect of the pain and suffering she had endured; and ALL 2,472,501 in respect of harm to her quality of life. The applicant submitted an expert report according to which the calculation was based on the unifying decision of the Supreme Court of 14 September 2007 (see paragraph 73 above).", "175. The Government argued that the applicant had not submitted a civil claim for damages. The expert report had been based on the Albanian insurance law. They therefore requested the Court to reject her claims as unsubstantiated.", "176. The Court notes that the rule that domestic remedies should be exhausted does not apply to just satisfaction claims submitted to the Court under Article 41 of the Convention (see De Wilde, Ooms and Versyp v. Belgium (Article 50), 10 March 1972, §§ 15-16, Series A no. 14, and Salah v. the Netherlands, no. 8196/02, § 67, ECHR 2006 ‑ IX).", "177. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant, on an equitable basis, EUR 12,000 in respect of non-pecuniary damage as a result of the violation found on account of the ineffectiveness of the investigation.", "B. Costs and expenses", "178. The applicant also claimed EUR 1,500 for her representation before the Court, as well as EUR 1,220 and ALL 70,150 (approximately EUR 518) in respect of translation costs and administrative and other costs and expenses before the domestic courts and the Court.", "179. The Government did not submit any particular comment.", "180. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Gjyli v. Albania, no. 32907/07, § 72, 29 September 2009). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,720 covering costs under all heads.", "C. Default interest", "181. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicants are Ms Y, who was born in 1948 and lives in Sofia, and her two granddaughters, Ms X and Ms Z, who were born in 2007 and 2012 respectively and also live in Sofia. In October 2017 Ms Y was appointed legal guardian of her two granddaughters. The applicants were represented by Ms A. Kachaunova, a lawyer practising in Sofia and working with the Bulgarian Helsinki Committee.", "3. The Government were represented by their Agents, Ms S. Sobadzhieva and Ms M. Dimitrova of the Ministry of Justice.", "INTRODUCTION", "4. On 18 August 2017 Mrs V., who was born in 1975 and was the daughter of the first applicant and mother of the second and third applicants, was shot dead in a café in Sofia by her husband, Mr V., who was born in 1953, from whom she had de facto separated in 2014.", "MR AND MRS V.’S MARRIAGE", "5. Mr and Mrs V. got married in April 2009. For Mr V. this was a second marriage; he had two sons from his previous one. The couple had two daughters (the second and third applicants) who were born in 2007 and 2012 respectively. In 2014 the spouses fell out with each other and stopped living together.", "6. The two daughters remained with Mrs V., and all three of them lived with her mother (the first applicant) in the first applicant’s flat.", "MRS V.’S COMPLAINTS TO THE POLICE ABOUT MR V.", "7. During the two years preceding the shooting on 18 August 2017, Mrs V. complained to the authorities of threatening conduct by Mr V. on several occasions.", "Incidents on 4, 5 and 14 November 2016", "8. Mrs V. first complained to the police on 14 November 2016. Some time after 9 p.m., she called the national emergency number 112 to report that the tyres of her car, which had been parked in front of a community cultural centre where she had been dancing from 8 to 9 p.m. that day, had been slashed. At 9.52 p.m. her call was relayed to the police department in Sofia in charge of the area, and they dispatched a patrol. Mrs V. told the officers that she suspected that the tyres had been slashed by Mr V.", "9. As instructed by the officers, later that evening Mrs V. went to the police station to make a written complaint. In a deposition accompanying her complaint she stated that she suspected that the tyres had been slashed by Mr V., from whom she had been de facto separated for about two and a half years, because a few days earlier, on 4 November 2016, they had had a row in the course of which he had made death threats against her in her home, in front of her mother (she quoted him as having said: “I will not give you a divorce; I will shoot you! I will leave the children without a mother!”). She went on to say that Mr V. legally owned a handgun, and that she thus feared for her life. She then added that the morning after that row, on 5 November 2016, the exhaust pipe of her car, which had been parked in front of her home, had been filled with polyurethane foam, which she also suspected had been done by Mr V. Mrs V.’s allegations were confirmed in a deposition by a friend of hers, who had accompanied her to the police station.", "10. On15 November 2016 the head of the police department assigned the case to an officer and gave him twenty days to report back. That officer in turn assigned the case to another officer. A little over a month later, on 23 December 2016, having established that Mr V. was living and working in Yambol, the officer placed in charge of the case delegated to yet another officer to write to the Yambol police with a request to get Mr V. to answer several questions about the tyre-slashing incident. On 10 January 2017 the Yambol police wrote back, saying that Mr V. had stated that the car had been purchased by him, and that he had been out of Sofia when its tyres had been slashed and had had nothing to do with it. Based on that statement, and on the absence of eyewitness or surveillance-camera evidence about the incident, on 16 January 2017 the officer in charge of the case proposed that no criminal proceedings be opened, adding that although the incident formally disclosed the elements of a criminal offence, it was too insignificant to amount to one.", "11. On 16 March 2017 the Sofia district prosecutor’s office agreed with the proposal and refused to open criminal proceedings in relation to the incident.", "12. The ensuing internal investigation by the police (see paragraphs 42 ‑ 43 below) found that, apart from writing to the Yambol police (a task which he had in any event delegated to another officer), for two months the officer in charge of the case had done no work on it. No contemporaneous record existed of his having checked whether Mr V. owned firearms, even though the officer claimed that he had carried out such a check. The letter to the Yambol police had not asked them to inquire whether Mr V. had any firearms or had made death threats against Mrs V. The internal investigation concluded that the police investigation carried out pursuant to Mrs V.’s complaint had thus not been comprehensive, complete or speedy: it had focused exclusively on the slashed tyres. Hence, the officer in charge of it and his immediate superior deserved to be reprimanded.", "Incident on 1 January 2017", "13. Some time around 10.30 a.m. on 1 January 2017, Mrs V.’s mother (the first applicant) called the national emergency number 112 to complain that Mr V. – who had come to the flat where Mrs V., her mother and Mrs V.’s two daughters (the second and third applicants) lived – was trying to take the two children out for a walk even though they were not wearing proper winter clothes, and had acted aggressively when Mrs V.’s mother had confronted him about it. The call was relayed to the police department in charge of the area at 10.42 a.m., and a police patrol was dispatched to the scene. In their subsequent report, the officers recorded that they had not witnessed a row, and had told Mrs V.’s mother that it was not their role to determine whether or not the children should go out for a walk. The officers had nevertheless cautioned Mrs V.’s mother and Mr V. to act lawfully and to resolve any disputes between them via the proper legal channels. According to the applicants, the reason the 112 call had been made was that Mr V. had entered the flat, tried to pull the children out and pushed Mrs V.’s mother. The applicants further stated that shortly after the visit by the police, Mrs V. had come back home and had allowed Mr V. to take the children out, apparently because she had seen that he was accompanied by his brother, whom she trusted.", "Incident on 13 February 2017 Complaint to the police", "Complaint to the police", "Complaint to the police", "14. In the late evening of 13 February 2017, Mrs V. complained to the Sofia police that, following a row between them, Mr V. had chased her, first by car and then on foot, insulting and threatening her. She said that she feared for her life and was scared of leaving her home alone or with her children.", "15. In a deposition she made at 1.19 a.m. the following day, 14 February 2017, Mrs V. explained that she had met with Mr V. in his car at his request, to discuss what to do with their daughters. In response to her telling him that she wanted a divorce, he had insulted and threatened her. She had got out of the car at a red light, but he had chased her, first in the car and then on foot. Since this had not been his first display of aggression towards her, the children and her mother, she had feared that he might assault her. She had managed to outrun him and had called a friend living in a nearby building, and Mr V. had given up the chase.", "16. In a deposition which she made at 1.33 a.m., Mrs V.’s friend confirmed that she had received a call from Mrs V., who had sounded very frightened, and that she had still been frightened when the friend had gone to her home shortly after that. The friend also relayed Mrs V.’s story about the chase, as heard by her in the course of that visit, and expressed her fear about the risk to Mrs V.’s life.", "17. On an unspecified date the officer in charge of the case summoned Mr V. to the police station to obtain from him a statement about Mrs V.’s allegations. When he came to the station on 23 February 2017, Mr V. conceded that he had met with Mrs V. on 13 February 2017, but denied having threatened her physically. The officer in charge of the case nevertheless cautioned him not to make threats or carry out acts of violence against his wife.", "18. On 7 March 2017 a junior officer also working on the case recommended, with reference to the information about that incident and about the earlier ones on 14 November 2016 and 1 January 2017 (see paragraphs 9 and 13 above), that no charges be brought against Mr V. On 22 March 2017 the Sofia district prosecutor’s office agreed with the proposal and refused to open criminal proceedings with respect to the incident. It noted that making insults and threats were privately prosecutable offences (see paragraph 64 below), and that there was no evidence that Mr V. had breached the terms of a protection order contrary to Article 296 § 1 of the Criminal Code (see paragraph 53 below), since the incident had taken place four days before the issuing of an interim protection order against him (see paragraph 21 below).", "19. When interviewed about his work on the case in the course of the ensuing internal investigation (see paragraphs 42-43 below), one of the two officers in charge of it stated that he had not attempted to obtain further information from Mrs V. or her friend as their initial depositions had been comprehensive enough.", "Protection-order proceedings", "(a) Proceedings before the Sofia District Court", "20. On 16 February 2017, three days after the incident on 13 February 2017 (see paragraphs 14-17 above), Mrs V. brought protection-order proceedings against Mr V. in relation to it (see paragraphs 47-50 below).", "21. On 17 February 2017 the Sofia District Court issued an interim protection order without prior notice to Mr V., barring him from coming within one hundred metres of Mrs V. until the final disposal of the case. It found, without giving details in that respect, that enough evidence existed of a direct and immediate threat to her life and health.", "22. On 15 June 2017 the Sofia District Court, which heard the case in Mr V.’s absence – he did not appear despite having been duly summoned – issued a final protection order against him, ordering him under section 5(1) of the Protection Against Domestic Violence Act 2005 (see paragraph 48 below) to refrain from acts of domestic violence against Mrs V., and barring him from coming within one hundred metres of her and her home and places of leisure for one year. The court also imposed on Mr V. the minimum possible fine: 200 Bulgarian levs (BGN) (equivalent to 102 euros (EUR)) (see paragraph 49 below). It did so on the basis of the incident on 13 February 2017 (see paragraphs 14-17 above). It found that on that date Mr V. had insulted and threatened Mrs V. The court went on to say that in view of the purely psychological nature of the violence, the combination of measures ordered by it appeared sufficient to deter Mr V. from further acts of domestic violence and that it was superfluous to resort to harsher measures or give him a bigger fine (see реш. № 146709 от 15.06.2017 г. по гр. д. № 9621/2017 г., СРС ).", "23. The decision to issue the final protection order was apparently not validly appealed against and, according to the records of the Sofia District Court, became final on 7 August 2017.", "(b) Notification of the interim protection order to the Sofia police and steps taken by them in connection with that order", "24. According to the records of the Sofia District Court, on 20 February 2017, three days after the interim protection order had been issued (see paragraph 21 above), it sent copies of it to two police departments in Sofia: the one in charge of the area where both Mr V. and Mrs V. had their permanent and current addresses, and also the one in charge of the area comprising the address mentioned as that of Mr V. in Mrs V.’s statement of claim.", "25. The court’s letter was received by the latter police department on 2 March 2017. On an unspecified later date an officer from the department found Mr V.’s mobile telephone number and called him. Mr V. told her that he did not live there. The officer and another officer nevertheless visited the address and, having inspected the building and spoken to the concierge, confirmed that indeed no one lived in the flat. Accordingly, on 17 March 2017 the police department sent the interim protection order back to the Sofia District Court.", "26. The other police department, that in charge of the area where both Mr V. and Mrs V. had their permanent and current addresses in Sofia, received the interim protection order on 27 February 2017. They put it on file but did not take any steps to contact either Mr V. or Mrs V. The ensuing internal investigation (see paragraphs 42-43 below) found that this omission had been contrary to point 20 of the operational guidance on police work under the Protection Against Domestic Violence Act 2005 (see paragraph 55 below).", "27. It appears that the final protection order was not sent to the Sofia police. The ensuing internal investigation (see paragraphs 42-43 below) recorded that according to information obtained from the Sofia District Court that had not been done because the court’s decision to issue the order had been appealed against before the Sofia City Court.", "Incident on 17 August 2017 Emergency call", "Emergency call", "Emergency call", "28. At 5.49 p.m. Mrs V. called the national emergency number 112 from her mobile telephone. The call lasted three minutes and fifty-four seconds. She told the call handler that Mr V. was acting in breach of the terms of the protection order against him. At first she said that he was driving behind her car, but then, when the call handler prompted her to elaborate, she stated that she could no longer see Mr V. In response to that information, the call handler told Mrs V. that she should lodge a written complaint with the territorially competent Sofia police department, and that since Mr V. was no longer nearby, it was pointless to dispatch a police patrol to the scene. He added that if Mr V. did anything further to breach the terms of the protection order, Mrs V. should call the emergency number again.", "29. The territorially competent police department in Sofia was apparently not informed of the emergency call.", "Written complaint to the police", "30. As instructed by the call handler, just before 7 p.m. on 17 August 2017 Mrs V. went to the police department and lodged a written complaint about the incident. She stated that when driving home after leaving work at 5 p.m., she had seen Mr V. following her in his car, in breach of the final protection order against him (Mrs V. cited the number of the case in which the order had been issued, the order’s date, the formation of the Sofia District Court which had issued the order, and the order’s terms). Out of fear, she had called a friend and had gone to see her, and when she had parked her car to pick up her friend Mr V. had parked his car one car down from hers and had got out of the vehicle and come to about ten metres from her, in breach of the terms of the protection order against him (see paragraph 22 above). Mrs V.’s friend had then got into her car with her and when they had driven away, Mr V. had kept on driving behind them. The friend had then called the emergency number 112 and Mrs V. had spoken with the operator. After that they had lost Mr V. from sight and had gone directly to the police station. Mrs V. asked the police to take preventive measures before Mr V. did “something fatal” to her.", "31. In a deposition made at about the same time, Mrs V.’s friend confirmed the story, adding that Mr V. had been wearing a baseball cap and dark glasses, in an apparent attempt to conceal his identity, and that when he had seen them driving away after the short stop, he had feverishly tried to find something in his car.", "32. The duty officer registered the written complaint and reported it to the duty inspector. The inspector checked whether any protection orders were on file with respect to Mrs V. and, having established that this was the case, the following morning reported to the department’s deputy head. She assigned the case to another inspector, who in turn assigned it to yet another inspector and gave him twenty days to report back. Apparently no further steps were taken on 18 August 2017.", "33. The ensuing internal investigation (see paragraphs 42-43 below) noted that even though Mrs V.’s complaint had contained enough information to give rise to a reasonable suspicion that Mr V. had wilfully disregarded the terms of a protection order contrary to Article 296 § 1 of the Criminal Code (see paragraph 53 below), the duty inspector had, in breach of his duties, failed to take immediate steps to ensure Mr V.’s arrest. He deserved to be reprimanded for that.", "Written complaint to the prosecuting authorities", "34. Just before 12 noon the next day, 18 August 2017, Mrs V., accompanied by her friend, lodged a nearly identical complaint with the Sofia district prosecutor’s office, specifying that Mr V. owned a handgun and that she feared for her life. The friend made a deposition in which she confirmed those points.", "MRS V.’S SHOOTING AND DEATH ON 18 AUGUST 2017", "35. After coming out of the premises of the Sofia district prosecutor’s office, at about 1.50 p.m. Mrs V. and her friend went to a coffee shop not far from where Mrs V. lived and sat on its terrace. Shortly before 3 p.m. Mr V., who had apparently spotted them, came up to them and asked Mrs V. whether they could talk about their children. She refused and warned him that she would call the police if he did not go away. He walked away, went back to his car, and parked it close to the coffee shop. He then got out of the car, wearing a handgun on his belt (for which he had had a firearms licence through one of his companies in 1998-2006), and again approached Mrs V. She repeated that she would call the police and started dialling the emergency number 112 on her mobile telephone, whereupon Mr V. shouted that she had ruined his life, pulled the handgun from under his T-shirt and shot her five times in the head and torso. Mrs V. died on the spot. Immediately after that Mr V. went to a police station to surrender.", "CRIMINAL PROCEEDINGS AGAINST MR V.", "36. At the police station, Mr V. was arrested. On 22 August 2017 the Sofia City Court placed him in pre-trial detention, noting, in particular, that the way in which he had shot Mrs V. and his unstable mental state suggested that he might commit further offences if not deprived of his liberty. On 29 August 2017 the Sofia Court of Appeal upheld that decision, agreeing with its reasoning.", "37. In late 2017 Mr V. was tried for aggravated murder and the unlawful possession of a firearm. On 5 January 2018 the Sofia City Court convicted him of those offences and sentenced him to a term of imprisonment of thirteen years and four months, to be served under the “severe regime”. It also ordered him to pay each of his daughters (the second and third applicants), who had brought civil-party claims against him, BGN 250,000 (EUR 127,822), plus interest, in respect of non-pecuniary damage (see прис. № 1 от 05.01.2018 г. по н. о. х. д. № 5051/2017 г., СГС ).", "38. The court noted, in particular, that a limited liability company run by Mr V. had been granted a firearms licence in 1998 (see paragraph 60 below), and that this licence had been renewed in 1999, 2000 and 2003 but had expired in 2006, which meant that for the whole subsequent period Mr V.’s possession of his handgun had been unlawful.", "39. The court went on to say that it found credible the evidence of Mrs V.’s friend about the earlier threats against her, and that Mrs V.’s complaints to the police and the prosecuting authorities and the protection order issued in her favour were all evidence that she had had serious grounds to fear Mr V. When determining Mr V.’s sentence, the court took the harassment to which he had subjected Mrs V. during the months before her murder and his death threats against her as an aggravating factor.", "40. The first applicant, acting on behalf of the second and third applicants, appealed against the sentence, asking the Sofia Court of Appeal to increase it to life imprisonment. She argued, among other things, that the lower court had not sufficiently taken Mr V.’s prior conduct into account. In May 2018 the Sofia Court of Appeal upheld the lower court’s judgment in full (see реш. № 190 от 10.05.2018 г. по в. н. о. х. д. № 240/2018 г., САС ). It held, among other things, that when fixing Mr V.’s sentence the lower court had correctly assessed the harassment to which he had subjected Mrs V. during the months before her murder and his death threats against her as an aggravating factor.", "41. Mr V. appealed on points of law, challenging only the decision in relation to his initial prison regime. In October 2018 the Supreme Court of Cassation held, chiefly on the basis of Mr V.’s poor state of health (he was by then suffering from advanced-stage prostate cancer) and the low risk that he presented, that he was to begin serving his sentence under the “general regime”, which was more lenient. The court upheld the lower courts’ judgments in all other respects, save for the legal characterisation of one of the aggravating elements – relating to the nature of the murder weapon – of the offence (see реш. № 205 от 19.10.2018 г. по н. д. № 778/2018 г., ВКС, II н. о. ).", "INTERNAL INVESTIGATION BY THE POLICE", "42. On 25 August 2017 the police opened an internal investigation to assess whether the operating procedures in domestic-violence cases had been properly followed in Mrs V.’s case. The investigation was conducted by four inspectors. They took written statements from a number of officers involved in handling Mrs V.’s complaints and the protection orders in her favour, and obtained various other materials.", "43. The investigation report was completed about seven weeks later, on 5 October 2017, and ran to twenty pages. It described in detail all the steps taken by the police in Mrs V.’s case and made various recommendations, including for disciplinary action (see paragraphs 12, 19, 26-27 and 33 above). It appears that ten officers were given disciplinary punishments on the basis of the report’s findings. Three of them were punished with a reprimand (the third harshest punishment available by statute) for a period of six months. There is no information about the punishments given to the other seven officers." ]

[ "RELEVANT LEGAL FRAMEWORK", "BULGARIAN DOMESTIC LAWProtection Against Domestic Violence Act 2005", "Protection Against Domestic Violence Act 2005", "Protection Against Domestic Violence Act 2005", "44. Protection from domestic violence in Bulgaria is chiefly governed by the Protection Against Domestic Violence Act 2005, in force since March 2005 and amended several times after that: in December 2009, December 2010, July 2015, and March and December 2019.", "45. Section 2 of the Act, as amended in December 2009, defines “domestic violence” as “any act of physical, sexual, psychological, emotional or economic violence, as well as any attempt [to carry out] such violence, [or] coerced restrictions on the private life, personal liberty or personal rights of people who are in kinship or are or have been in a family relationship or been de facto spouses”.", "46. The Act provides for two avenues of redress with respect to domestic violence: (a) protection-order proceedings before the district courts (see paragraphs 47-55 below), and (b) a request to the police (see paragraphs 56 ‑ 58 below) (section 4(1) and (2)).", "Protection-order proceedings", "(a) Manner in which the proceedings take place before the courts", "47. In cases of domestic violence the victim may seek a protection order (sections 4(1) and 8(1)). He or she must lodge the application within one month of the act(s) said to amount to such violence (section 10(1)). The application must be heard no more than a month after its receipt by the court (sections 12(1) and 18(4)). The proceedings take place at first instance before the district courts, and on appeal before the regional courts, whose decisions are final (sections 7 and 17(1) and (6)). The appeal has no suspensive effect (section 17(3)).", "48. By section 5(1) and (2), as amended in December 2009, a court to which an application for protection against domestic violence is made may: (a) order the perpetrator to refrain from domestic violence; (b) remove the perpetrator from the family home for a period of time (up to eighteen months); (c) bar the perpetrator from approaching the victim, his or her home, workplace, social-gatherings and places of leisure, under certain conditions and for a period fixed by the court (up to eighteen months); (d) provisionally place the couple’s children, if any, with the victim, under certain conditions and for a period fixed by the court (up to eighteen months), unless that goes against the children’s interest; (e) order the perpetrator to attend specialised programmes; and (f) direct the victim(s) to rehabilitation programmes. The court may opt for a combination of any of those measures (section 16(1)).", "49. In addition, the court must fine the perpetrator between BGN 200 (EUR 102) and BGN 1,000 (EUR 511) (section 5(4)).", "50. If the application contains indications of a direct and immediate risk to the victim’s life or health, the court must issue, without prior notice to the perpetrator, an interim protection order. It must do so within twenty-four hours of receiving the application (section 18(1)). The interim order is not amenable to appeal and remains in effect for the duration of the main proceedings (section 19).", "(b) Enforcement of interim and final protection orders by the police", "51. A court which issues an interim or final protection order containing an injunction of the type mentioned in paragraph 48 (a), (b) or (c) above must send a copy of it to the police department(s) responsible for the area(s) where the perpetrator and the victim have their current address(es) (sections 16(3) and 18(2) of the Protection Against Domestic Violence Act 2005). That department is in charge of ensuring compliance with the order (section 21(1) of the Act, and regulation 6 of the 2010 regulations for the Act’s application). If the perpetrator breaches the terms of the order, the officer who establishes the breach must arrest him or her and inform the prosecuting authorities immediately (section 21(3)). The police must act upon being notified by the victim or by anyone who has identified the breach. If their inquiries confirm the breach, they must take the steps required under the Code of Criminal Procedure (regulation 7 §§ 1 and 2). If the breach does not amount to an offence, the police must caution those concerned not to commit further breaches (regulation 7 § 3).", "52. By regulation 4 § 3 (2) of the regulations for the application of the 2005 Act, the Ministry of Internal Affairs must keep information about the enforcement of injunctions of the type mentioned in paragraph 48 (a), (b) or (c) above, and by regulation 4 § 4 it must publish that information on its website. However, according to a November 2020 letter by the Ministry, which the Government enclosed with their observations, it did not keep comprehensive statistics about domestic-violence cases since it did not have an automated information system for doing so. According to the same letter, the police had received 2,440 protection orders in 2017, 2,981 in 2018, 3,240 in 2019, and 2,574 in 2020 (until the end of October) for enforcement. According to statistics presented by the applicants (which had been obtained by the Bulgarian Helsinki Committee from the Ministry of Internal Affairs by way of a request for access to public information), in 2020 the police had received a total of 3,057 protection orders for enforcement. The Ministry could not say how many of those had been interim orders and how many final ones. Nor did the Ministry have data about how many times the police had informed the prosecuting authorities of breaches of such orders under section 21(3) of the 2005 Act.", "53. Article 296 § 1 of the Criminal Code makes it an offence (wilfully) not to comply with a protection order (it also makes it an offence to obstruct the enforcement of a judicial decision). The penalty on conviction is up to three years’ imprisonment or a fine of up to BGN 5,000 (EUR 2,556).", "54. According to statistics presented by the applicants (which they based on the annual reports of the respective prosecutor’s offices), the Sofia district prosecutor’s office and the Sofia regional prosecutor’s office had between them opened sixty-eight cases under Article 296 § 1 in 2017, 106 cases in 2018, and 124 cases in 2019. The Sofia regional prosecutor’s office had brought before the courts two alleged offenders under that provision in 2017, ten in 2018 and eleven in 2019. There was no such information about the Sofia district prosecutor’s office since it only provided more aggregated numbers. It was unclear how many of those cases had concerned alleged failures to comply with a protection order and how many concerned alleged obstructions of the enforcement of a judicial decision.", "55. According to point 17 of the operational guidance on police work under the Protection Against Domestic Violence Act 2005 issued by the Minister for Internal Affairs in April 2012 (see paragraph 57 below), the officers in charge of the area where the perpetrator lives must ensure that he or she complies with an interim or final protection order which enjoins the perpetrator to refrain from domestic violence or bars him or her from approaching the victim, his or her home, workplace, social-gatherings and places of leisure (see paragraph 48 (a) and (c) above). The officer tasked with enforcing the order must, within three days of receiving it, among other things (a) talk to both the victim and the perpetrator, (b) advise the perpetrator that he or she must comply with the measures ordered by the court, and (c) warn him or her that failure to do so may result in arrest and charges under Article 296 § 1 of the Criminal Code (point 20). Any officer who establishes that the terms of a protection order have been breached must arrest the perpetrator under section 21(3) of the 2005 Act (see paragraph 51 above) and immediately inform the prosecuting authorities (point 23).", "Police protection", "56. Section 4(2) of the 2005 Act, as amended in December 2009, provides that if indications exist that the victim’s life or health are at risk, he or she may, as well as applying for a protection order, also ask the police to take measures under the Ministry of Internal Affairs Act 2014. Such measures may include entering and inspecting premises with a view to, among other things, providing immediate assistance to people whose life, health or personal liberty are at risk (section 83(1)(3) of the 2014 Act). The earlier versions of section 4(2) of the 2005 Act referred specifically to that type of measure.", "57. In April 2012 the Minister for Internal Affairs issued operational guidance ( методически указания ) on police work under the Protection Against Domestic Violence Act 2005.", "58. By point 4 of that guidance, a duty officer who gets a report about a domestic-violence incident must, among other things, (a) immediately gather information about the people involved in the incident, its nature, and the possibility that the alleged perpetrator has a firearm and is likely to use it; (b) if possible, dispatch two officers to check the report, and, while they are on their way to the scene, check for previous incidents involving the same people, and the existence of any protection orders or any firearms licences issued to the alleged perpetrator, and convey all that information to the two frontline officers; and (c) remain in constant contact with the alleged victim (or the person who made the report, as the case may be) and advise him or her about any security steps to be taken in the meantime. Even if the officers dispatched to the scene are told that no police intervention is required, they must still visit the scene and report in writing about their visit (point 4.5). They must, if necessary, arrest the alleged perpetrator, arrange for immediate investigation steps, take a statement from the alleged victim, and inform him or her of his or her rights to bring criminal charges or obtain protection (points 5.3, 5.4, 6, 7 and 8.1). They must also advise the alleged victim of the possibility, in the event of a risk to life or health, to request protection from the police (in addition to the possibilities to seek a protection order or complain to the prosecuting authorities – see paragraph 56 above) (point 8.3). They must also track down the alleged perpetrator if he or she is no longer at the scene, take a statement and caution him or her that he or she has broken the law and may bear liability for that (points 13 and 14). The officers must also take statements from any witnesses (point 15).", "Other potential avenues of protection from domestic violence", "59. Article 67 § 1 of the Code of Criminal Procedure provides that a first ‑ instance court dealing with a criminal case may, at the request of the public prosecutor or the victim, bar the accused from (a) coming near the victim; (b) contacting the victim in any way, including by telephone, post, email or fax; or (c) go to inhabited areas, regions or places where the victim resides or which the victim visits. The court must hear the application in public in the presence of the public prosecutor and the parties, and rule by means of a final decision (Article 67 § 3). The prohibition remains in place until the end of the proceedings (Article 67 § 4).", "Firearms control legislation", "60. By section 50(3) of the Firearms, Ammunitions, Explosives and Pyrotechnical Products Act 2010 (which is similar to the provision it superseded, section 14(1) of the Control Over Explosives, Firearms and Ammunitions Act 1998), both legal persons and individuals may acquire firearms. The same provision makes that acquisition subject to a licence issued by the competent police authority.", "61. By section 58(1)(8) of the 2010 Act, such a licence cannot be issued to a person who has been the target of a protection order (see paragraphs 47 ‑ 50 above) during the previous three years. This has been interpreted to mean both an interim and a final protection order (see реш. № 2036 от 12.02.2013 г. по адм. д. № 15135/2012 г., ВАС, VII о.; реш. № 613 от 17.01.2014 г. по адм. д. № 7770/2013 г., ВАС, VII о.; and реш. № 1173 от 04.02.2016 г. по адм. д. № 14670/2015 г., ВАС, VII о. ). If such an order is issued after the firearms licence has been granted, the authority which has issued the licence must withdraw it (section 155(1)), which also entails the immediate seizure of the firearms (section 213(1)).", "62. The competent departments of the Ministry of Internal Affairs are in charge of ensuring compliance with the requirements of the 2010 Act (sections 152-54 of the Act, and Regulations No. Iz-2205 of 26 October 2012 on the manner of controlling activities involving firearms, ammunitions, explosives and pyrotechnical devices). They may, in particular, seize firearms (section 153(6)), and are required to do so when the relevant licence has not been renewed and the licence-holder has not surrendered the firearms (section 213a(1) of the 2010 Act).", "63. Being in possession of a firearm without the requisite licence is a criminal offence punishable with imprisonment ranging from two to eight years (Article 339 § 1 of the Criminal Code).", "Criminal offencesMaking threats", "Making threats", "Making threats", "64. Article 144 § 1 of the Criminal Code makes it an offence to threaten someone with an offence against his or her person or property, or against the persons or property of relatives, provided the threat is capable of causing a well-founded fear of its realisation. If the threat is a death threat, the offence is aggravated (Article 144 § 3). Making threats is a privately prosecutable offence, but not when the threats are death threats; they are then publicly prosecutable (Article 161 § 1).", "65. By Article 144 § 3 of the Code, as amended in February 2019, the offence becomes aggravated also if committed “in conditions of domestic violence”. By Article 161 § 1, as amended also in February 2019, in that case the offence is publicly prosecutable.", "66. Article 93 § 31 of the Code, also added in February 2019, defines an offence committed “in conditions of domestic violence” as an offence preceded by systemic physical, sexual or psychological violence; by placing in economic dependency; or by coerced restrictions on the private life, personal liberty or personal rights of, inter alios, an (ex-)spouse or a de facto (ex-)spouse.", "67. The February 2019 amendments were part of an overhaul of the Criminal Code intended, according to the explanatory notes drawn up by the members of parliament who introduced the amendments in October 2018, to strengthen current and provide new tools in the fight against domestic violence and violence against women.", "Stalking", "68. Article 144a § 1 of the Criminal Code, added in February 2019 as part of the same legislative package (see paragraphs 65-67 above), makes it an offence systematically to follow someone and thus to arouse in him or her a well-founded fear for his or her own or his or her relatives’ life or health. Article 144a § 2 provides that “following” within the meaning of the first paragraph includes any conduct of a threatening character against a specific individual, which may consist in chasing that individual, making him or her aware that he or she is under surveillance, or making unwanted contact with him or her. By Article 161 § 2, as amended in February 2019, the offence is publicly prosecutable, but only on the basis of a complaint by the victim to the prosecuting authorities.", "69. By Article 144a § 3, the offence becomes aggravated if committed “in conditions of domestic violence” (see paragraph 66 above).", "ISTANBUL CONVENTION", "70. The relevant provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention” – 3010 UNTS 107; CETS 210 ) were set out in Kurt v. Austria ([GC], no. 62903/15, §§ 76-86, 15 June 2021).", "71. Bulgaria signed that Convention on 21 April 2016. In January 2018 its government proposed that its Parliament ratify it, but, following a heated public controversy about some of the provisions of that Convention relating to the terms “sex” and “gender”, in February 2018 a group of members of parliament asked the Constitutional Court to determine whether that Convention was compatible with the Constitution, in a preliminary ‑ consultation procedure provided for by Article 149 § 1 (4) of the Constitution. As a result, in March 2018 the government withdrew the ratification bill.", "72. It its judgment, delivered in July 2018 ( реш. № 13 от 27.07.2018 г. по к. д. № 3/2018 г., КС, обн., ДВ, бр. 65/2018 г. ), the Constitutional Court held, by eight votes to four, that the Istanbul Convention was incompatible with the Bulgarian Constitution.", "73. The court began by noting that the Istanbul Convention’s aims were fully in line with the fundamental constitutional principles of Bulgaria: humanism, equality, justice, tolerance, respect for human rights, dignity and security. It went on to say that Bulgaria’s aspiration to protect all victims of violence, including women and children, to eliminate all forms of discrimination, and to ensure equality was demonstrated by various pieces of legislation: the Criminal Code, the Protection Against Domestic Violence Act 2005 (see paragraphs 44-46 above), the Protection of Children Act 2000, the Equality of Men and Women Act 2016, and the Protection Against Discrimination Act 2003. However, the internal ambiguity of that Convention, in particular Article 3 (c) and Article 4 § 3 (which were key parts of it), with respect to the definition of the terms “gender” and “gender identity”, and the apparently distinct meaning which that Convention assigned to the terms “gender” and “sex”, meant that it went beyond its stated aim of protecting women against violence, and that it was incompatible with the Constitution, which, as was clear from many of its provisions, was based on the idea that humans could only be male or female. That Convention distinguished between “sex” and “gender”, and thus paved the way for the introduction of the notions of “gender” and “gender identity” in the Bulgarian legal system. That ran counter to the Constitution, and to the fundamental rule-of-law requirement that legal notions should not be ambiguous. It was not possible to surmount the problem by making a reservation since that Convention did not permit reservations in relation to the provisions at issue.", "74. In a resolution of 28 November 2019 ( P9_TA(2019)0080 ), the European Parliament called on Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania, Slovakia and the United Kingdom to ratify the Istanbul Convention “without delay” (point 2).", "RELEVANT REPORTS", "75. In its Concluding Observations on the eighth periodic report of Bulgaria ( CEDAW/C/BGR/CO/8 ), published on 10 March 2020, the United Nations Committee on the Elimination of Discrimination against Women (“the CEDAW”) [1] stated, among other things:", "“11. The Committee is concerned that women and girls in the State party, in particular those facing intersecting forms of discrimination, have limited access to justice owing to pervasive corruption, social stigma, the inaccessibility of the judicial system, gender bias among law enforcement officers, including the police, the priority given to mediation and reconciliation procedures in cases involving gender-based violence against women, women’s limited awareness of their rights and limited knowledge among judges and law enforcement officials of the Convention, the Optional Protocol thereto and the Committee’s general recommendations.", "...", "23. ... The Committee also remains concerned by:", "...", "(f) The lack of awareness about and training on gender-based violence against women and girls among judges, prosecutors, police officers and medical personnel that would enable them to respond effectively to such cases in a gender-sensitive manner;", "(g) The absence of comprehensive data on gender-based violence against women and girls, disaggregated by age and relationship between the victim and the perpetrator, including on the number of complaints, prosecutions and convictions, the sanctions imposed against the perpetrators and the remedies provided to victims;", "...", "24. Recalling its general recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19, the Committee calls upon the State party:", "...", "(g) To introduce systematic capacity-building for judges, prosecutors, the police and other law enforcement officers on the strict application of criminal law provisions on gender-based violence against women and on gender-sensitive investigative procedures, as well as systematic training for medical personnel on gender-sensitive treatment of victims;", "...", "(i) To create a database and systematically collect statistical data on all forms of gender-based violence, including domestic and sexual violence, disaggregated by sex, age, disability, nationality and the relationship between the victim and the perpetrator.”", "76. In her report concerning her visit to Bulgaria in October 2019 ( A/HRC/44/52/Add.1 ), published on 19 May 2020, the United Nations Special Rapporteur on violence against women, its causes and consequences, stated, among other things (footnotes omitted):", "“22. Additionally, under [section] 5(1)(5) [of the Protection Against Domestic Violence Act 2005 – see paragraphs 44 and 48 (e) above], perpetrators of domestic violence may be ordered by the courts to attend specialized programmes for rehabilitation and anger and aggression management. Such orders are mandatory, according to [A]rticle 296 of the Criminal Code, however compliance with such orders has not been enforced and cases of non-conformity are not regularly prosecuted.", "...", "48. The Special Rapporteur notes that Bulgaria lacks a mechanism for the systematic collection of statistical data or analysis of data and cases related to violence against women, femicide or gender-related killing of women and girls. As a result, the real dimensions and specifics of the problems and issues cannot be easily identified. The Office of the Prosecutor collects data on the number of protection orders issued and, in cases of homicide, data are disaggregated on the basis of sex and the relationship between the perpetrator and the victim. Indirect information on the dimensions of domestic violence cases can be derived from the statistics provided by the regional courts on the number of restraining orders issued in domestic violence cases. According to those data, the number of victims of domestic violence who have sought protection and have received restraining orders from the courts has been consistently increasing in the last five years, with 2,398 orders issued from January to 30 September 2019. The Special Rapporteur was informed that the higher number of protection orders issued in the past year was partially due to an increased awareness of women’s rights, but it also shed light on the widespread and systematic nature of this violation.", "...", "68. For purposes of training and awareness, the Government should:", "(a) Provide mandatory training to law enforcement officers and members of the judiciary, including judges and prosecutors, on the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol, the general recommendations of the Committee on the Elimination of Discrimination against Women and the Committee’s jurisprudence on violence against women and interpreting national legal provisions in the light of that jurisprudence;", "(b) Strengthen efforts to combat discriminatory gender stereotypes among law enforcement officials dealing with domestic violence;", "(c) Conduct continuous training for law enforcement officials on gender equality and determination and assessment of cases of violence against women.”", "77. In her report concerning her visit to Bulgaria in November 2019 ( CommDH(2020)8 ), published on 31 March 2020, the Commissioner for Human Rights of the Council of Europe stated, among other things (footnotes omitted):", "“51. Bulgaria lacks a mechanism for the systematic collection of data on violence against women and domestic violence, which makes it difficult to map the specificities of these phenomena. According to a survey carried out by the EU Fundamental Rights Agency (FRA) in 2014, 28% of women in Bulgaria have experienced physical or sexual violence since the age of 15 and 39% have experienced psychological violence perpetrated by current or former partners. Bulgaria’s score for the domain of violence in the European Institute for Gender Equality (EIGE) Gender Equality Index 2017 indicated a higher incidence and severity, as well as lack of disclosure of violence against women, compared to the EU average. Data released by the authorities last year on 25 November, the International Day on the Elimination of Violence Against Women, revealed that some 30[,]000 reports of domestic violence were made to the emergency number 112 during 2019. NGOs have reported in this respect a worrying increase in the past three years of murders of women committed by spouses, partners and close relatives.", "...", "59. ... [The Commissioner] wishes to highlight, in addition, the importance of awareness-raising and training programmes for professionals involved in the prevention and combating of violence against women and domestic violence, notably for law enforcement authorities, the judiciary and other legal professionals. Despite the capacity-building programmes implemented so far, the Commissioner is concerned about the reports which indicate that prejudice and social tolerance of violence against women and domestic violence are, among other factors, at the root of a systemic failure to adequately protect victims and bring perpetrators to justice.", "...", "73. Promoting equality between women and men is a crucial tool in the prevention of violence against women and domestic violence. The Commissioner urges the authorities to fight sexist prejudices based on the idea of [the] inferiority of women or on stereotyped roles for women and men in society, which fuel misperceptions and social tolerance of violence against women and domestic violence and significantly hinder, at a systemic level, the authorities’ capacity to adequately protect victims and ensure the accountability of perpetrators. She calls on the authorities to fight any discrimination against women in law enforcement and the judiciary and enhance capacity-building for all officials in the justice system to ensure a gender-sensitive approach to cases concerning violence against women and domestic violence. She draws attention to the Council of Europe Committee of Ministers Recommendation CM/Rec(2019)1 on preventing and combating sexism that provides detailed guidance on addressing sexism in different fields, including in access to justice.", "...", "76. The Commissioner recommends that the authorities systematically collect data on all forms of gender-based violence against women, including domestic violence, disaggregated by relevant factors, including sex, age and the relationship between the victim and the perpetrator, and ensure that accurate and accessible data are available on the number of cases reported, investigations, prosecutions, convictions and the sanctions imposed on the perpetrators, as well as on the remedies provided to victims.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "78. The applicants complained under Articles 2 and 13 of the Convention that the authorities had not effectively protected Mrs V.’s life and that there had been no effective remedy in that respect.", "79. In view of the Court’s case-law in this domain (see Opuz v. Turkey, no. 33401/02, § 205, ECHR 2009; Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 70-74, 15 January 2009; and Talpis v. Italy, no. 41237/14, § 151, 2 March 2017), the complaint falls to be examined solely under Article 2 of the Convention, the relevant part of which provides:", "“1. Everyone’s right to life shall be protected by law. ...”", "The parties’ submissionsThe applicants", "The applicants", "The applicants", "80. The applicants submitted that although Mrs V.’s complaints and her friend’s statements had contained enough information to alert the authorities about the risk to Mrs V.’s life, the authorities had not investigated the matter in more depth, as had been their duty, not least because making death threats was a publicly prosecutable offence. Like any other victim of domestic violence, Mrs V. had been vulnerable. Yet the authorities had not taken her allegations seriously and had tried to minimise them. She had brought the protection-order proceedings precisely because she had feared for her life.", "81. On the evening of 17 August 2017, the authorities had not tried to find Mr V. or investigate the alleged breach of the protection order against him. Had they done so, they could probably have prevented Mrs V.’s murder, especially since there was nothing to suggest that Mr V. had been hiding. They had had eighteen hours to take such steps. Their failure to act had not been due to a lack of police manpower but rather to the low priority given to offences under Article 296 § 1 of the Criminal Code. Had the authorities investigated Mr V.’s earlier actions properly, they could have ascertained his intentions and acted to protect Mrs V.’s life. Their obligation to do so could not be balanced against other considerations.", "The Government", "82. The Government argued that the data available to the authorities before Mrs V.’s shooting could not reasonably have alerted them that Mr V. would kill her. The incidents in the previous years had been minor and had not involved violence against her. None of the reported earlier incidents had intimated a threat to Mrs V.’s life. Nor had there been anything to suggest that she had been particularly vulnerable or the victim of systemic abuse; the applicants’ assertions on the point overstated her situation.", "83. Moreover, when complaining about the earlier incidents, Mrs V. had not provided enough information to enable the authorities to appreciate the seriousness of the threat against her. For instance, she had not described the text messages Mr V. had sent her, or given enough detail about the couple’s internal dynamics and his obsessive and jealous attitude. The information she had passed on to the authorities just before her killing had been corroborated by a single witness who was a close friend of hers and could not be seen as an objective observer of the relationship between the spouses. The authorities had thus not been in a position to take legal action against Mr V. consistently with their obligation to respect his presumption of innocence and his right to respect for his private and family life.", "84. It appeared that Mrs V. had brought the protection-order proceedings to secure the successful outcome of possible divorce proceedings rather than to shield herself from any immediate threat. The court dealing with that case had duly examined all the materials that Mrs V. had put before it. At the time the authorities had been justified not to bring charges against Mr V.", "85. The way in which the authorities had handled the information about the chase on 17 August 2017 had been adequate. The data available to them had not been indicative of a real risk to Mrs V.’s life, or capable of suggesting the ensuing rapid escalation of aggression on the part of Mr V. It appeared that his illness, coupled with his despair over his personal situation – of which the authorities had been completely unaware – had made his conduct highly volatile. The events and the verbal exchange immediately preceding the shooting had not hinted at the possibility of murder either.", "86. Furthermore, the shooting had happened just a few hours after Mrs V. had made her most recent complaint. In view of the difficulties of policing a big city like Sofia and the absence of any history of violent behaviour by Mr V., the authorities could not have been expected to act on that complaint within such a short time. The omissions noted by the ensuing internal investigation did not mean that Mr V.’s violent act could reasonably have been foreseen.", "87. Lastly, the relevant legal framework presented no defects, since Bulgarian law expressly criminalised failure to comply with a protection order. Given how events had unfolded, it would have been impossible to prevent Mrs V.’s death even if stalking had been criminalised or the Istanbul Convention ratified.", "The Court’s assessmentAdmissibility", "Admissibility", "Admissibility", "88. The complaint is not manifestly ill-founded or inadmissible on any other grounds. It must therefore be declared admissible.", "Merits", "(a) General principles", "89. The positive obligation under Article 2 of the Convention to take preventive operational measures to protect someone whose life is at risk from violence by another individual was first articulated in Osman v. the United Kingdom (28 October 1998, §§ 115-16, Reports of Judgments and Decisions 1998-VIII). As held in that judgment, if the authorities know or ought to know of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party, they must take measures within the scope of their powers which, judged reasonably, might be expected to avoid that risk. The scope and content of that duty in the context of domestic violence were recently clarified in Kurt v. Austria ([GC], no. 62903/15, §§ 157-89, 15 June 2021). They can be summarised as follows (ibid., § 190):", "(a) The authorities must respond immediately to allegations of domestic violence;", "(b) When such allegations come to their attention, the authorities must check whether a real and immediate risk to the life of one or more identified victims of domestic violence exists by carrying out an autonomous, proactive and comprehensive risk assessment. They must take due account of the special context of domestic violence when evaluating the risk’s reality and immediacy;", "(c) If the risk assessment reveals that a real and immediate risk to life exists, the authorities must take preventive operational measures to avert that risk. Those measures must be adequate and proportionate to the assessed level of the risk.", "(b) Application of those principles", "(i) Timeframe for the assessment of the authorities’ response", "90. During the approximately nine months preceding Mrs V.’s killing, the Sofia police received one emergency call and three written complaints from her (see paragraphs 9, 14 and 30 above). They were also sent copies of the interim protection order issued in favour of Mrs V. by the Sofia District Court (see paragraphs 24-26 above). The day before she was killed, Mrs V. also called the national emergency number, but that call was not relayed to the Sofia police (see paragraph 28 above). In addition, about three hours before her killing Mrs V. lodged a complaint with the prosecuting authorities (see paragraph 34 above). During the early phase of that nine-month period, the Sofia police also received one emergency call from Mrs V.’s mother (the first applicant) (see paragraph 13 above). Since all four written complaints and the emergency call on the eve of the killing concerned arguable assertions of domestic violence against Mrs V., as defined in the domestic law of Bulgaria (see paragraph 45 above), the authorities’ response to them must be assessed as from the point when she first contacted them about the matter on 14 November 2016 (see Talpis, cited above, § 111).", "(ii) Whether the authorities responded immediately", "91. The authorities only responded immediately on one of those occasions (see paragraph 97 below).", "92. It is true that on 14 November 2016 the Sofia police did respond to Mrs V.’s complaint about her car’s tyres being slashed quite quickly. But all they did on that occasion was to note down her allegations and direct her to make a written complaint (see paragraph 8 above). When she did so, they only sought to obtain further evidence in relation to the complaint more than a month later, and all they did in that respect was to write a letter to their colleagues in Yambol and then note down the response. Indeed, as recorded by the ensuing internal investigation, that was the only step they took throughout the entire two months during which they were handling the case (see paragraphs 9-10 and 12 above)", "93. It then took the Sofia police nine days to interview Mr V. about the allegations that he had chased and threatened Mrs V. on 13 February 2017 and to caution him in that regard (see paragraphs 14 and 17 above).", "94. It is true that the Sofia District Court issued an interim protection order in favour of Mrs V. one day after she brought protection-order proceedings against Mr V. (see paragraphs 20-21 above, compare N.P. and N.I. v. Bulgaria (dec.), no. 72226/11, § 82, 3 May 2016, and contrast Bevacqua and S. v. Bulgaria, no. 71127/01, §§ 70, 74 and 76, 12 June 2008, and Kalucza v. Hungary, no. 57693/10, § 64, 24 April 2012), and that a final protection order followed in due course (see paragraph 22 above). But it then took three days for that court to send copies of the interim protection order to the Sofia police, and a further seven, respectively ten, days for those copies to arrive in the respective police departments (see paragraphs 24-26 above). More importantly, the Sofia police department competent to enforce the interim protection order simply put it on file, and took no steps with a view to ensuring that Mr V. would comply with it (see paragraph 26 above). As for the final protection order, it was apparently not even brought to the attention of the police (see paragraph 27 above).", "95. Mrs V.’s emergency call, made on the day before her death, 17 August 2017, was not relayed to the police or acted upon at all (see paragraphs 28-29 above).", "96. Mrs V.’s third written complaint, made about an hour after that emergency call, was not acted upon on the evening it was received or the following day, when she was killed by Mr V. (see paragraphs 30 and 32 above, and compare Bljakaj and Others v. Croatia, no. 74448/12, §§ 125-27, 18 September 2014). The nearly identical complaint Mrs V. lodged with the prosecuting authorities the following day, about two and a half hours before she was killed, was apparently not acted upon immediately either (see paragraph 34 above).", "97. The only occasion on which the police did respond quickly by dispatching a patrol was when Mrs V.’s mother (the first applicant) called them in relation to her argument with Mr V. about whether he could take the couple’s two daughters (the second and third applicants) out for a walk on 1 January 2017 (see paragraph 13 above).", "(iii) Quality of the risk assessment carried out on each of those occasions", "98. There is nothing to suggest that on any of the above-mentioned occasions the Sofia police attempted to analyse Mr V.’s conduct through the prism of what it could portend about his future course of action (compare Opuz, cited above, § 147). They did not carry out even basic documenting showing that they had conducted such a risk assessment (see Kurt, cited above, § 174). Nor do they seem to have informed Mrs V. of the outcome of any such assessment (ibid.). They appear to have been concerned solely with the question whether Mr V.’s acts ought to trigger a public prosecution against him, and appear to have handled Mrs V.’s complaints without in any way appreciating that her allegations with respect to Mr V. suggested that the case concerned the special context of domestic violence and its typical dynamics. Nor was such an assessment carried out when the police received the interim protection order in Mrs V.’s favour (see paragraph 26 above, and, mutatis mutandis, Levchuk v. Ukraine, no. 17496/19, §§ 80 and 86, 3 September 2020).", "99. Even assuming, however, that some sort of risk assessment did take place, albeit informally, on each or at least some of the above-mentioned occasions, that assessment was not autonomous, proactive or comprehensive, as those requirements have been explained in Kurt (cited above, §§ 169-74).", "100. Perhaps most importantly, the ensuing internal investigation found no contemporaneous evidence that following Mrs V.’s complaint on 14 November 2016 in which she mentioned that Mr V. had a handgun the Sofia police had checked whether he had been granted any firearms licences or – in the light the firearms licensing system operating in Bulgaria (see paragraph 60 above) – any companies associated with him had been granted such licences (see paragraph 12 above, and contrast Kurt, cited above, § 197). Nor did the police take any other steps to check whether he had a handgun, as specifically asserted by Mrs V. (see paragraph 9 above, and compare Kontrová v. Slovakia, no. 7510/04, § 53 in fine, 31 May 2007), and which subsequently turned out to be the case. Nor did they take any steps in that respect when they received the interim protection order against Mr V. in February 2017, even though according to their own operational guidance (see paragraphs 26 and 58 (a) above) this should have been done.", "101. The ensuing internal investigation also noted that the police had not paid any attention to the death threats reported by Mrs V. on 14 November 2016 (see paragraph 12 above), whereas those, combined with the tyre-slashing incident, could have been seen as a clear red flag heralding future risk to her from the actions of Mr V. In the context of domestic violence, death threats should always be taken seriously and assessed as to their credibility (see Kurt, cited above, § 200).", "102. The ensuing internal investigation furthermore noted that the police officer in charge of handling Mrs V.’s complaint of 13 February 2017 had not sought to obtain any further information apart from that contained in the written depositions of Mrs V. and her friend (see paragraph 19 above, and compare Tkhelidze v. Georgia, no. 33056/17, § 54, 8 July 2021).", "103. None of those omissions was remedied by the prosecuting authorities. They appear to have taken their two successive decisions not to open criminal proceedings against Mr V. solely on the basis of the written reports by the police (see paragraphs 11 and 18 above, and contrast Kurt, cited above, § 201). Moreover, although the two decisions were taken by the same prosecutor’s office a mere six days apart from each other, it does not appear that the prosecutors in charge of each of the two cases sought somehow to coordinate their work. In particular, there is nothing to indicate that they attempted to analyse whether the relatively rapid succession of incidents involving threatening behaviour by Mr V. towards Mrs V. suggested that she might be at risk from his future conduct – even though in his proposal to the prosecuting authorities that no charges be brought against Mr V. the police officer in charge of the second case did refer to the tyre-slashing incident under investigation in the first case (see paragraph 18 above).", "104. As regards more specifically the emergency call on 17 August 2017, it is unclear why the call handler who took it assumed that no immediate response was necessary simply because Mr V. had apparently left the scene (see paragraph 28 above).", "(iv) Whether the authorities knew or ought to have known that there was a real and immediate risk to the life of Ms. V.", "105. Had the authorities carried out a proper risk assessment, in particular on 17 August 2017, it is likely they would have appreciated – based on the information available to them at that time – that Mr V., who was alleged to have access to a handgun and had been repeatedly displaying the signs of an angry, violent and obsessive attitude towards Mrs V., could pose a real and immediate risk to her life, as those notions are to be understood in the context of domestic violence (see Kurt, cited above, §§ 175-76, and compare Tkhelidze, cited above, § 53). After all, in February 2017 the Sofia District Court had found Mrs V.’s allegations about the incident on 13 February 2017 sufficiently credible to issue an interim protection order in her favour the day after she brought the protection-order proceedings (see paragraphs 20-21 above). Although that court did not explain the basis for its decision, it is significant that under Bulgarian law such an order may only be issued if indications exist of a direct and immediate risk to the victim’s life or health (see paragraph 50 above). Perhaps more importantly, on 17 August 2017 Mrs V. credibly complained, by way of both a call to the national emergency number and of a written complaint lodged with the local police department, that Mr V. had breached the terms of the final protection order in her favour (see paragraphs 28 and 30-31 above). The authorities thus ought to have appreciated the reality and immediacy of the risk to Mrs V.’s life. The fact that they did not appears to have been at least in part due to the lack of specific training of the relevant officers. It does not seem that the ones who took charge of Mrs V.’s complaints had been specifically trained on the dynamics of domestic violence, as required under the Court’s case-law (see Kurt, cited above, § 172).", "(v) Whether the authorities took preventive measures which were adequate in the circumstances", "106. The only operational measures taken to protect Mrs V. were the interim and final protection orders issued in her favour (see paragraphs 21-23 above). But those orders then remained without any tangible effect. The former was not acted upon in any way by the police department in charge of enforcing it, and the latter was apparently not even brought to the attention of the police (see paragraphs 25-27 above).", "107. Had they properly assessed the risk to Mrs V.’s life, the Bulgarian authorities could, consistently with the powers they had, have taken various steps. They could, for instance have:", "(a) attempted, by virtue of their powers under sections 153(6) and 213a(1) of the Firearms, Ammunitions, Explosives and Pyrotechnical Products Act 2010, to seize the handgun which Mr V. still possessed despite the expiry of the relevant firearms licence more than ten years previously, and charged him under Article 339 § 1 of the Criminal Code with the unlawful possession of a firearm (see paragraphs 38 and 62-63 above, and compare Opuz, cited above, § 147, and Kotilainen and Others v. Finland, no. 62439/12, § 88, 17 September 2020). That step could have been taken as early as November 2016, when Mrs V. first alerted the police that Mr V. had a handgun (see paragraphs 9 and 12 above). It is at least plausible that if Mr V. had been deprived of that firearm, it would have been harder for him to inflict lethal injuries on Mrs V.;", "(b) arrested Mr V. under section 21(3) of the Protection Against Domestic Violence Act 2005 for breaching the terms of the protection order against him and brought criminal charges against him in that regard under Article 296 § 1 of the Criminal Code (see paragraphs 33, 51, 53 and 55 in fine above), which would have been a plausible course of action on 17 and 18 August 2017;", "(c) placed Mrs V. under some form of police protection under section 4(2) of the 2005 Act, especially in the light of her complaints on 17 and 18 August 2017 (see paragraph 56 above).", "108. The Government did not specifically argue, or present evidence suggesting that in 2016-17 the Bulgarian authorities had refrained from taking any of those steps or any other measures out of concern to not infringe Mr V.’s rights under Articles 5, 6 or 8 of the Convention or under Article 1 of Protocol No. 1 (see Kurt, cited above, §§ 183-89), or owing to manpower or resource shortages. It should be noted in this connection that the ensuing internal investigation recommended that disciplinary action be taken against a number of officers for their failure to work diligently on Mrs V.’s case (see paragraph 43 above).", "109. In the circumstances of this case, it is not for the Court to say what measures or combination of measures should have been taken by the Bulgarian authorities to protect Mrs V. from the risk posed by Mr V. to her life. It suffices to note that, as outlined above, the authorities ought to have known at the latest on 17 August 2017, after Mrs V.´s emergency call and her ensuing complaint to the police, that this risk was real and immediate, and that they failed to take any measures at their disposal which, judged reasonably, might have been expected to avoid that risk. Nor is there any evidence that the authorities sought to somehow coordinate their actions in that respect. For instance, it does not appear that the Sofia district prosecutor’s office attempted immediately to contact the Sofia police when it received the complaint which Mrs V. lodged with it the morning before she was killed (see paragraph 34 above). A proper preventive response often requires coordination among multiple authorities (see Kurt, cited above, § 180).", "110. In the light of the above conclusion – that the Bulgarian authorities had in their arsenal sufficient tools to take operational measures designed to counter the risk to Mrs V.’s life – it is superfluous to inquire whether the absence at the relevant time of provisions criminalising stalking, or of provisions making all threats uttered in the context of domestic violence an aggravated and publicly prosecutable offence (see paragraphs 65-69 above, and compare Bevacqua and S., § 82, and Opuz, § 145, both cited above), was also a factor in the authorities’ failure to take such measures.", "(vi) Conclusion", "111. The above considerations lead to the conclusion that there has been a breach of Article 2 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "112. The applicants further complained under Article 14 of the Convention read in conjunction with Article 2 that the failure of the authorities to take effective measures with a view to averting the risk to Mrs V.’s life had not simply been an isolated occurrence, which could be explained by factors specific to her case, but had been due to her being a woman and to the authorities’ general complacency towards violence against women.", "113. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "The parties’ submissionsThe applicants", "The applicants", "The applicants", "114. The applicants submitted that the authorities had not taken steps to protect Mrs V.’s life owing to their general failure to evaluate and tackle properly domestic violence in Bulgaria.", "115. Bulgarian law did not sufficiently protect against such violence. The prosecuting authorities did not keep statistics on such offences, or on the number of times the police had informed the prosecuting authorities about failures to comply with a protection order. The annual programme for preventing domestic violence for 2017 had only been adopted in early 2018. In 2018 the Constitutional Court had given a decision preventing the ratification of the Istanbul Convention. The 2019 amendments to the Criminal Code had been insufficient, in particular as regards preventive measures, and also because they had criminalised domestic violence only if it was systematic. The way in which those amendments had been debated by the legislature suggested that they were merely a façade. Several recent statements by international observers (see paragraphs 75-77 above) and the absence of proper law-enforcement statistics showed that gender-based violence and the manner in which the police and the judiciary responded to it remained a problem.", "116. This had also been demonstrated by the failure of the court which had convicted Mr V. to take into account the domestic violence in which he had engaged, his threats against Mrs V., and his having breached the terms of the protection order, and more generally the failure to obtain evidence about the discriminatory motives for his conduct and to explore sufficiently that aspect of the case. The characterisation of Mr V.’s earlier threats as a privately prosecutable offence rather than as publicly prosecutable death threats was further evidence of the authorities’ complacence towards the abuse of wives by their husbands. The prison regime fixed for Mr V. by the Supreme Court of Cassation also showed that the courts did not see domestic violence as particularly dangerous. So did the earlier inaction of the authorities in the face of Mrs V.’s complaints, which revealed their insufficient commitment to combat domestic violence and their discriminatory attitude towards its victims.", "The Government", "117. The Government invited the Court to not deal with the complaint.", "118. They alternatively submitted that the facts did not disclose any discrimination based on gender. They maintained, with reference in particular to several recent initiatives and projects, that the authorities had made serious efforts to enhance the mechanisms for preventing, investigating, prosecuting and punishing gender-based violence and for supporting its victims. The rules in place before Mrs V.’s murder had also been adequate in that respect. Keeping proper statistics on such violence was admittedly an issue, but this was a problem in other countries as well, and involved considerable challenges. The statistical data produced by the applicants were questionable, and did not show that men in relevantly similar situations were being treated more favourably, or that the laws protecting women from violence were not being properly applied. There were also reasons to suspect that domestic violence against men was underestimated in Bulgaria.", "119. The situation at hand was a far cry from that in the cases against Turkey, Lithuania, the Republic of Moldova and Italy in which the Court had found a culture of impunity and official tolerance of violence against women. Even if traces of such a culture did still exist in Bulgaria, it concerned marginalised social groups rather than the one to which Mrs V., a well-educated and independent woman, had belonged. The refusals to open criminal proceedings in response to her complaints about the earlier incidents did not disclose a discriminatory attitude. It was also noteworthy that Mr V. had not attempted to approach her between the issuing of the interim and then the final protection orders against him and the incident on 17 August 2017. The shortcomings recorded by the ensuing internal investigation had not been on a scale suggesting official tolerance enabling Mr V.’s act. The authorities had also subsequently punished him in a fitting manner.", "The Court’s assessmentWhether a separate examination of the complaint is necessary", "Whether a separate examination of the complaint is necessary", "Whether a separate examination of the complaint is necessary", "120. This complaint and the one under Article 2 of the Convention taken alone are distinct. It is true that each at its core has to do with the alleged failure of the authorities to take sufficient measures to protect Mrs V.’s life. But the present complaint is based on a broader allegation: that this failure was not an isolated occurrence but was due to the general complacency of the Bulgarian authorities in such cases. It is hence not absorbed by the complaint under Article 2 taken alone, and has to be examined separately (see, for a similar approach, Opuz, cited above, §§ 183-202; Talpis, cited above, §§ 140-49; and Munteanu v. the Republic of Moldova, no. 34168/11, §§ 76 and 80-83, 26 May 2020).", "Admissibility", "121. The complaint is not manifestly ill-founded or inadmissible on any other grounds. It must therefore be declared admissible.", "Merits", "(a) General principles", "122. The relevant principles, first articulated in Opuz (cited above, §§ 184-91), have been comprehensively set out in Volodina v. Russia (no. 41261/17, §§ 109-14, 9 July 2019). They can be summarised as follows:", "(a) A difference in the treatment of persons in analogous or relevantly similar situations is discriminatory if it has no objective and reasonable justification;", "(b) A general policy which has disproportionately prejudicial effects on a given group may be discriminatory even if it is not specifically aimed at that group and there is no discriminatory intent. Discrimination may also result from a de facto situation;", "(c) Violence against women, including domestic violence, is a form of discrimination against women. The State’s failure to protect women from such violence, irrespective of whether it is intentional, breaches their right to equal protection of the law;", "(d) A difference in treatment aimed at ensuring substantive equality between the sexes may be justified and even required;", "(e) Once the applicant has shown a difference in treatment, it is for the respondent State to show that that difference was justified. If it is established that domestic violence affects women disproportionately, the burden shifts on to that State to show what remedial measures which it has taken to redress the disadvantage associated with sex;", "(f) The kinds of prima facie evidence which can shift the burden of proof on to the respondent State in such cases are not predetermined and can vary. Such evidence may come from reports by non-governmental organisations or international observers such as the CEDAW, or from statistical data from the authorities or academic institutions which show that (i) domestic violence affects mainly women, and that (ii) the general attitude of the authorities – manifested in, for example, the way in which the women are treated in police stations when they report domestic violence, or in judicial passivity in providing effective protection to women who are victims of it – has created a climate conducive to such violence; and", "(g) If a large-scale structural bias is shown to exist, the applicant does not need to show that the victim was also a target of individual prejudice. If, by contrast, there is insufficient evidence of the discriminatory nature of the legislation or the official practices, or of their discriminatory effects, proven bias by officials dealing with the victim’s case will be required to establish a discrimination claim. In the absence of such proof, the fact that not all sanctions or measures ordered or recommended in the victim’s individual case have been complied with does not in itself disclose an appearance of discriminatory intent on the basis of sex.", "(b) Application of those principles", "123. It follows from the above principles that the first point for decision in relation to this complaint is whether in this case there is prima facie evidence of the type outlined in paragraph 122 (f) above.", "124. It is hardly in doubt that domestic violence in Bulgaria affects predominantly women; this is so in all member States of the Council of Europe (see Opuz, § 132, and Volodina, § 71, both cited above). However, no evidence has been presented to suggest that the Bulgarian authorities seek to dissuade women who fall victim to such violence from complaining about it, or that the courts systematically delay the issuing of protection orders (contrast Opuz, cited above, §§ 195-96).", "125. It is true that those authorities do not collect and keep comprehensive statistics about the manner in which the law-enforcement authorities handle domestic-violence cases (see paragraph 52 above). This is a serious omission, in relation to which the CEDAW, the United Nations Special Rapporteur on violence against women and the Commissioner for Human Rights of the Council of Europe have all expressed concern and formulated recommendations (see paragraphs 75-77 above).", "126. In view of the lack of proper official statistics, the applicants cannot be expected to come up with such data themselves. They did nonetheless attempt to back their assertion with statistical data, but the statistics which they presented are not in themselves sufficient to corroborate their assertion. It is unclear how the data on the number of cases and prosecutions under Article 296 § 1 of the Bulgarian Criminal Code for Sofia and its region in 2017-19 (see paragraph 54 above) can establish the point. Moreover, that data only covers two regions in the country. Nor can an inference of general passivity by the authorities be drawn from the data about the number of protection orders which the courts had sent to the police for enforcement in 2017-20 (see paragraph 52 above). Incomplete statistics cannot serve as a proper basis for the sweeping conclusion contended for by the applicants (compare A. v. Croatia, no. 55164/08, § 103, 14 October 2010).", "127. In the absence of comprehensive statistics, it was however open to the applicants to attempt to substantiate their assertion that the Bulgarian authorities have remained generally complacent in such cases with other kinds of prima facie evidence. Such evidence can come in various forms (see paragraph 122 (f) above). However, although sensitive to the difficulties which can be encountered in such an endeavour, the Court is not persuaded that the evidence to which the applicants pointed is sufficient in that respect.", "128. The three international reports on which they relied did urge the Bulgarian authorities to combat any discrimination against women in law enforcement and the judiciary, and expressed concern in that respect. But those reports did not in terms state that the police or other authorities were consistently downplaying or unwilling to deal with such cases, or cite concrete field data on the point (see paragraphs 75-77 above, compare A. v. Croatia, § 97, and contrast Opuz, §§ 94-97 and 99-104, both cited above). Such reports can carry evidentiary weight in proceedings before the Court only to the extent that they contain specific information about the primary facts under examination, or contextual facts which can serve as a basis for inferences about those primary facts (see Merabishvili v. Georgia [GC], no. 72508/13, § 317, 28 November 2017).", "129. Nor can it be said that – in contrast with the position in, for instance, Russia – at the relevant time Bulgarian law wholly failed to address the problem of domestic violence (contrast Volodina, cited above, §§ 128 and 132), or that, overall, it placed undue obstacles in the way of women who wished to complain of such violence (contrast M.G. v. Turkey, no. 646/10, § 117, 22 March 2016). As noted in paragraph 107 above, in the present case that law gave the authorities sufficient tools to take measures to protect Mrs V. It is not for the Court to examine here whether the amendments to Bulgaria’s criminal legislation introduced about a year and a half after the events in issue in this case were phrased in a way which failed to provide sufficient protection to victims of domestic violence. According to the Court’s case-law, in proceedings originating in an individual application its task is not to review domestic law in the abstract but to determine whether the way in which that law was applied to the applicant gave rise to a breach of the Convention (see, among many other authorities, Golder v. the United Kingdom, 21 February 1975, § 39 in fine, Series A no. 18; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 116, ECHR 2012; and Perinçek v. Switzerland [GC], no. 27510/08, § 136, ECHR 2015 (extracts)).", "130. As for the non-ratification of the Istanbul Convention, the Court is mindful of that Convention’s importance for raising the standard in the field of protection of women from domestic violence and thus also for the realisation of de iure and de facto equality between women and men. The refusal to ratify the Istanbul Convention could thus be seen as lack of sufficient regard for the need to provide women with effective protection against domestic violence. The Court is however not prepared in this case to draw conclusions from Bulgaria’s refusal to ratify that Convention in 2018. Firstly, that refusal took place about seven months after Mrs V.’s killing (see paragraph 71 above). Secondly, the refusal – as can be seen from the reasons for the July 2018 judgment of the Bulgarian Constitutional Court which dealt with the question whether that Convention was compatible with the Bulgarian Constitution (see paragraph 73 above) – was based on considerations which the Court finds unrelated to a reluctance to provide women with proper legal protection against domestic violence. It is in any event not for the Court, whose sole task under Article 19 of the Convention is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, and whose jurisdiction only extends, by Article 32 § 1, to “matters concerning the interpretation and application of the Convention and the Protocols thereto”, to pronounce, directly or indirectly, on whether a Contracting State should ratify an international treaty, which is an eminently political decision (see paragraph 74 above, and compare, mutatis mutandis, Perinçek, cited above, §§ 101-02).", "131. In the light of the foregoing, the Court is not persuaded that the applicants have succeeded in making a prima facie case of a general and discriminatory passivity on the part of the Bulgarian authorities with respect to domestic violence directed against women.", "132. It must hence be ascertained whether there is any proof of anti ‑ female bias by the State officials dealing specifically with Mrs V.’s case (see paragraph 122 (g) above).", "133. There is no evidence that any of the police officers or other officials involved in handling Mrs V.’s complaints in relation to Mr V. attempted to dissuade her from pursuing remedies or from seeking protection against him, or that they otherwise sought to hamper her efforts in that respect or downplay the seriousness of the threat from Mr V. (compare A. v. Croatia, cited above, § 97, and contrast Eremia v. the Republic of Moldova, no. 3564/11, § 87, 28 May 2013, and Munteanu, cited above, § 81), or that they suggested that Mrs V. was herself at fault for the situation she was in (contrast Bălşan v. Romania, no. 49645/09, § 81, 23 May 2017, and Munteanu, cited above, § 81 in fine ). On the contrary, the Sofia District Court took just one day to issue the interim protection order which Mrs V. was seeking, and then issued the final protection order against Mr V. in less than four months (see paragraphs 20-22 above). It is true that the Sofia police remained passive in the face of Mrs V.’s repeated complaints about Mr V.’s threatening conduct, and in response to the interim protection order which they received. But that passivity, although reprehensible and in breach of Article 2 of the Convention (see paragraphs 91-111 above), cannot in itself be seen as disclosing a discriminatory attitude on the part of the authorities (see paragraph 122 (g) above).", "134. Nor can it be said that the judicial response to Mrs V.’s killing demonstrated a lenient attitude towards domestic violence. It is true that no charges were brought against Mr V. with respect to his having breached the terms of the protection order in Mrs V.’s favour. He was, however, tried for aggravated murder and the unlawful possession of a firearm (see paragraph 37 above), and the Bulgarian courts dealt with the case against him quite quickly, taking in total about a year and two months to complete it (see paragraphs 36-41 above). They gave him an effective prison sentence of thirteen years and four months, which can hardly be seen as unduly lenient (contrast, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 63, 20 December 2007), and they took his conduct towards Mrs V. during the course of the months before her killing as an aggravating factor (see paragraphs 39-40 above). It is not for the Court to gainsay the weight which those courts ascribed to that factor in fixing Mr V.’s sentence. Nor is the Court prepared to draw any inferences from the decision of the Bulgarian Supreme Court of Cassation that Mr V. was to begin serving his sentence under a more lenient regime than that fixed by the lower courts (see paragraph 41 above).", "135. The fact that the police carried out an internal investigation after Mrs V.’s death and that disciplinary action was then taken against officers found to have neglected their duties in her case (see paragraphs 42-43 above) likewise tends to suggest that the Bulgarian authorities did not look upon the matter with indifference – although fuller information about the punishments imposed on the relevant police officers would have shed more light on that point.", "136. The above considerations, taken as a whole, lead to the conclusion that in the circumstances of the present case there has been no breach of Article 14 of the Convention read in conjunction with Article 2.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "137. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "138. The applicants claimed 20,000 euros (EUR) each in respect of the non-pecuniary damage allegedly resulting from the breaches of Articles 2 and 14 of the Convention.", "139. The Government stated that the claims were exorbitant, and invited the Court to make an award comparable to those in previous similar cases.", "140. Having regard to the nature of the breach of Article 2 of the Convention and ruling on an equitable basis, as required under Article 41, the Court awards jointly to all three applicants EUR 24,000, plus any tax that may be chargeable, in respect of the anguish and frustration they must have suffered on account of the authorities’ failure to discharge the obligation to protect the life of their daughter and mother, respectively.", "Costs and expenses", "141. The applicants sought reimbursement of EUR 5,900 incurred in fees for fifty-nine hours of work by their lawyer on the proceedings before the Court, at EUR 100 per hour, as well as of 25.20 Bulgarian levs spent by their lawyer on postage. They asked that any award under this head be made payable to the Bulgarian Helsinki Committee, where their lawyer worked. In support of the claim, they submitted two fee agreements between them and that Committee (the latter superseding the former), a time-sheet and postal receipts.", "142. The Government contested the number of hours claimed as excessive. They went on to note that the postage paid in connection with the case had already been covered by the lawyer’s fees charged to the applicants.", "143. According to the Court’s settled case-law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "144. In this case, it has not been argued that the rate charged by the applicants’ lawyer for her work on the proceedings before the Court was excessive. It was the same as that charged and accepted as reasonable in two recent cases against Bulgaria (see Budinova and Chaprazov v. Bulgaria, no. 12567/13, §§ 104 and 108, 16 February 2021, and Behar and Gutman v. Bulgaria, no. 29335/13, §§ 115 and 120, 16 February 2021). It can thus be seen as reasonable. By contrast, in the light of the degree of difficulty of the issues thrown up by the case, the number of hours claimed appears somewhat excessive. The applicants are hence to be awarded EUR 4,500, plus any tax that may be chargeable to them, in respect of lawyers’ fees.", "145. As regards the postage paid in connection with the proceedings before the Court, it is in principle recoverable under Article 41 of the Convention (see Handzhiyski v. Bulgaria, no. 10783/14, § 74, 6 April 2021, with further references). Indeed, under the terms of the fee agreement between the applicants and the Bulgarian Helsinki Committee, they are liable to pay not only the fees for legal work on the case, but also to cover all postal expenses for corresponding with the Court. It follows that the claimed postage, which is equivalent to EUR 12.88, must be allowed in full. To this should be added any tax that may be chargeable to the applicants.", "146. As requested by the applicants, both sums awarded under this head, which come to a total of EUR 4,512.88, plus any tax that may be chargeable to the applicants, are to be paid into the bank account of the Bulgarian Helsinki Committee, where their lawyer works.", "Default interest", "147. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1957 and lives in Zagreb. He was represented before the Court by Ms T. Milanković Podbrežnički, a lawyer practising in Zagreb.", "3. The Croatian Government were represented by their Agent, Ms Š. Stažnik.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. On 4 July 2007 the Zagreb Municipal Court ( Općinski sud u Zagrebu ) found the applicant guilty in criminal proceedings concerning domestic violence and neglect and abuse of a minor child for the period between March 2002 and the end of February 2005. He was sentenced to two years’ imprisonment suspended for a period of five years. That judgment was upheld on appeal and the suspended sentence was subsequently revoked (see paragraph 33 below).", "The minor-offence proceedings", "6. Meanwhile, on 6 October 2006 the Zagreb Minor Offences Court ( Prekršajni sud u Zagrebu ) found the applicant guilty of a minor offence of domestic violence under section 4 of the Protection against Domestic Violence Act (see paragraph 68 below) against his minor daughter Z.G., committed on 5 October 2006. He was sentenced to fifty days’ imprisonment suspended for one year.", "7. On 2 February 2007 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G. and his son H.G committed on 30 January 2007. He was sentenced to ten days’ imprisonment, whereas his previous suspended sentence had been revoked (see paragraph 6 above) and he was sentenced to a total of fifty ‑ nine days’ imprisonment.", "8. On 3 April 2007 the same court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G., his son H.G. and his minor daughter Z.G. committed earlier that same day. He was sentenced to forty days’ imprisonment suspended for ten months.", "9. On 16 January 2008 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence, in that on 10 January 2008 he had verbally insulted his daughters Z.G. and M.G. and his wife Mi.G. The applicant was given a suspended sentence of seventy-six days’ imprisonment, taking into account a previously imposed suspended sentence (see paragraph 8 above), with a one-year probation period. That judgment was upheld on appeal.", "10. On 4 November 2008 the Kutina Social Welfare Centre received a complaint from Mi.G. She alleged that on 3 November 2008 the applicant had behaved violently in their family home, had blamed her for the loss of his job and had been threatening to kill her since 2005. She produced medical documentation of the same day, indicating that she had sustained injuries to her head. The Kutina Social Welfare Centre lodged a criminal complaint with the police.", "11. On 4 November 2008 the police instituted minor-offence proceedings against the applicant before the Zagreb Minor Offences Court for the minor offence of domestic violence under section 4 and section 18(3) of the Protection against Domestic Violence Act committed on 3 November 2008 against Mi.G. – who by that time was his former spouse – and his daughter M.G.", "12. On the same day the applicant was arrested and placed in detention.", "13. On 17 November 2008 the Zagreb Minor Offences Court found the applicant guilty of violent behaviour within the family towards Mi.G. and his older daughter M.G. and sentenced him to thirty days’ imprisonment. At the same time it revoked the applicant’s previous suspended sentence (see paragraphs 8 and 9 above), and imposed a sentence of 112 days’ imprisonment in total. The relevant part of that judgment read as follows:", "“The accused, Miljenko Galović, ... is guilty in that on 3 and 4 November 2008 at 10.02 a.m. in [his] family house in ... while being under the influence of alcohol, he behaved violently within [his] family, in that on 3 November 2008 at about 4 p.m. he verbally insulted his daughter M.G. and former spouse Mi.G. by saying to them ‘Whores, sluts, I have lost my job because of you!’, after which his daughter M. left the house, and after her return at about 8.30 p.m. he continued to insult her by saying ‘Slut, whore, you and your mother, I have lost my job because of you!’, after which she locked herself in a room while the accused banged at the door of her room, continuing to insult her by saying ‘Slut, whore, get out of the house, go to your lover, go away!’, and on 3 November 2008 at 5 p.m. he verbally assaulted his former spouse Mi.G. by saying ‘Whore, do you know that I got fired today because of you. I will throw you out of the house, I will kill you. Now you have no alimony, the bank will take your assets. See how stupid you are, a whore from Moslavina-Zagorje!’, after which he went to sleep and when he woke up at 6.30 p.m. he went to the room where his former spouse was and continued to verbally insult her by saying ‘Whore, I lost my job today’, after which he physically assaulted her by approaching the bed on which she was sitting, grabbing her by the hair with both hands and throwing her onto the bed. He [continued to] hold her by the hair with his left hand and with his right hand he slapped her several times on the left cheek and ear while saying to her ‘Come on, shout, shout, I will kill you before the police arrive. If you put me in prison, after two years I will find you, you are mine!’", "...", "The court inspected ... the record of examination of blood alcohol [of 4 November 2008].”", "14. By a judgment of 28 January 2009, the High Minor Offences Court altered the legal characterisation of the offence and held that it was an offence under section 18(1) of the Protection against Domestic Violence Act, and not section 18(3) of that Act. Otherwise, it dismissed an appeal by the applicant and upheld the first-instance judgment, which thus became final.", "The proceedings on indictment", "15. On 4 November 2008 Mi.G. lodged a criminal complaint against the applicant with the Kutina police, concerning the events of 3 November 2008. On 2 December 2008 the police supplemented Mi.G.’s criminal complaint with previous events covering the period between February 2005 and 4 November 2008 and forwarded it to the Zagreb Municipal State Attorney’s Office.", "16. On 2 December 2008 the applicant was transferred from detention for minor offences to criminal detention, on suspicion of having committed criminal offences: domestic violence against his spouse, his two daughters and his son; and child neglect and abuse against his younger daughter.", "17. On 3 December 2008, referring among other things to documents on the basis of which the previous minor offence proceedings had been conducted, the Zagreb Municipal State Attorney’s Office requested the investigating judge to conduct investigative activities in respect of the applicant in relation to criminal offences: four counts of domestic violence perpetrated against his former spouse, his two daughters and his son, and one count of child neglect and abuse against his younger daughter Z.G. On the same day the applicant was heard by an investigating judge of the same court, in the presence of E.H, a defence lawyer of his own choosing. He denied the charges against him. The investigating judge ordered that the applicant be detained for forty-eight hours on the grounds that there was a danger that he would suborn witnesses.", "18. The applicant’s detention was subsequently extended throughout the investigation and his trial.", "19. On 12 December 2008 the applicant sent his written defence to the investigating judge.", "20. On 15 December 2008 the investigating judge heard evidence from: an expert witness in psychiatry who had carried out a psychiatric examination of the applicant in 2005, a lawyer from the Social Welfare Centre in charge of the applicant and his family, and the applicant’s former spouse Mi.G. Neither the applicant nor his defence lawyer was present.", "21. On 20 January 2009 the investigating judge heard evidence from the applicant’s son H.G and his older daughter M.G. The applicant’s defence lawyer was present.", "22. On 21 January 2009 the investigating judge heard evidence from the applicant’s younger daughter Z.G. Neither the applicant nor his defence lawyer was present.", "23. On 26 January 2009 the Zagreb State Attorney’s Office indicted the applicant before the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu, hereinafter “the Municipal Court”) for criminal offences: four counts of domestic violence as defined in Article 215a of the Criminal Code, perpetrated against his former spouse, his two daughters and his son; and one count of child neglect and abuse as defined in Article 213 of the Criminal Code, committed against his minor daughter Z.G. According to the indictment, these offences were perpetrated in the period between February 2005 and 3 November 2008.", "24. On 10 February 2009 the Municipal Court ordered a psychiatric assessment of the applicant.", "25. On 23 February 2009 the applicant submitted an additional written defence.", "26. On 10 March 2009 a psychiatrist submitted a report on the applicant, finding that at the time of the alleged offences his capacity to understand his actions had been reduced, but not significantly.", "27. On 11 March 2009 the applicant submitted an additional written defence.", "28. On 17 March 2009 the applicant submitted his written “closing arguments”.", "29. At a hearing held before the Municipal Court on 24 March 2009, the applicant and three witnesses gave evidence.", "30. On 19 May 2009 the applicant submitted an additional written defence.", "31. Further hearings were held on 2 and 23 June, and on 7 and 14 July 2009. Several witnesses and an expert in psychiatry gave evidence.", "32. On 15 June 2009 the applicant asked the court to allow him to consult the case file. His request was granted.", "33. By a judgment of 14 July 2009, the Municipal Court found the applicant guilty of one count of child neglect and abuse in respect of his then minor daughter Z.G. and imposed a sentence of ten months’ imprisonment. He was also found guilty of four counts of domestic violence in total in respect of: his daughter Z.G., for which a prison term of six months was imposed; his daughter M.G., for which a prison term of nine months was imposed; his son H.G., for which a prison term of seven months was imposed; and his former spouse Mi.G., for which a prison term of one year was imposed. At the same time his suspended sentence of two years which had been imposed in a previous set of criminal proceedings was revoked (see paragraph 5 above), and he was sentenced cumulatively to five years’ imprisonment. A security measure of compulsory treatment for alcohol addiction was also imposed on him. The relevant part of the judgment read:", "“The accused, Miljenko Galović, ... is guilty in that in the period between February 2005 and 3 November 2008 in ..., in the flat where he lived in the same household with his daughter Z., a minor, ..., adult daughter M. ... and adult son H., as the common-law spouse of Mi.G., [while] frequently under the influence of alcohol in the presence of Z., a minor, even though he knew that he could put her psycho-physical development at risk, he was verbally and physically assaulting his spouse Mi. and adult children, in that he was calling his common-law spouse ugly names: ‘whore, slut’, and cursing her mother, threatening to kill and sell her, and was physically attacking her by slapping her, pulling her hair and throwing her to the ground, all this in the presence of Z., a minor, and his daughter M. and son H., and [was threatening to] throw his common-law spouse Mi. and the children out of the flat, and threatening to kill them, and on one occasion in December 2007 he took a kitchen knife and put it to the throat of his common-law spouse Mi. and told her that she had to send the agents of the [prosecuting authorities for organised crime] to search for him in bars, and he charged at [his common-law spouse] while brandishing the knife, while he insulted his daughter M. by telling her that she was a ‘whore, slut and a whore from Moslavina’, and to go to her lover, and he also insulted his son H. by telling him that he was ‘an imbecile, an idiot’, and cursed his mother, and said to him ‘give me a blowjob’, and at the same time he pushed H. This caused H. to move out of the flat at the beginning of 2007. [The accused] was frequently telling Z., a minor, that she was a ‘fat pig’, that ‘nobody would fuck her’, and that she was ‘a fat slut’. He grabbed her by the head and pushed her out of the flat, and continued to treat Z. in the same manner when she became an adult ... This behaviour culminated in [the events] on 3 November 2008 when the accused verbally assaulted his common-law spouse Mi. and daughter M. by telling them that they were ‘whores and sluts’, and when his common-law spouse Mi. stayed in the flat with him alone he verbally assaulted her again by telling her that she was a whore and that he had been fired because of her, [and] that he would throw her out of the house and kill her. He then physically assaulted her, in that he grabbed her hair, threw her onto a bed and hit her on the head, and continued to insult her by telling her that she was a ‘stupid whore from Moslavina and Zagorje’. Those blows made her ear bleed, and [the accused] threatened her by saying that if she called the police then he would kill her. When their daughter M. came home on the same day he entered her room and said to her ‘slut, whore, I lost my job because of you, get out of the house’, after which he followed her around the house and continued to insult her. This behaviour caused frequent police interventions and the accused, through his behaviour, put the proper psycho-physical development of his minor daughter Z. at risk. [Z.] is in psychiatric treatment owing to the accused’s behaviour ... while [his behaviour] caused his daughter M., son H. and common-law spouse Mi. to fear for their life and health [and] to experience anxiety [in this respect].", "...", "In the course of the proceedings, the court inspected ... record of examination of blood alcohol [of 4 November 2008]..., the Zagreb Minor Offences Court judgment [of 4 November 2008] ..., medical documentation concerning Mi.G. [relating to the incident of 3 November 2008]...", "...", "In relation to the criminal offences of domestic violence from Article 215a of the Criminal Code committed against Z.G., M.G., Mi.G and H.G., the court has established that in the incriminating period the [applicant], through his extremely rude, aggressive and ruthless behaviour, put the members of his family in a humiliating position by verbally and physically endangering them, attacking, threatening, which transpires from the statements of all heard witnesses and from the material evidence in the case file. The gravity of the [applicant’s] behaviour is also visible from the fact that [his family members] have been suffering such behaviour since 1995, that his older daughter M.G. said that she thought that [his conduct] had not been punishable as long as he was not beating them, and the fact that the victims called the police only when ‘the water came to their neck’ since they are in permanent fear due to the aggressive behaviour of the [applicant]. Not even a whole series of minor offence convictions, nor a previous criminal conviction for the same criminal offences did not result in a change in the [applicant’s] behaviour, but instead it culminated on 3 November 2008 when Mi.G. left the family home in fear of her own life.", "...", "The [above] prison penalty shall include the period [the applicant] had served on the basis of the Zagreb Minor Offences Court’s decision [of 10 January 2008] between 11 and 16 January 2008 and [on the basis of its decision of 17 November 2008] between 5 November until 2 December 2008 ...”", "34. The first-instance judgment was served on the applicant’s lawyer E.H. on 13 August 2009.", "35. The applicant remained in detention.", "36. On 19 August 2009 the applicant appealed against the first-instance judgment and asked that a hearing be held. He complained at length about the wrongful assessment of the facts and application of the domestic law in his case.", "37. By a letter of the same date, which was received by the first instance court a day later, the applicant revoked the power of attorney which had been issued to E.H., his lawyer.", "38. On 24 August 2009 the applicant sent a letter to the Municipal Court stating that he needed a new defence lawyer. He submitted a list of eight lawyers and asked to be able to contact them by telephone. This letter was received by the Municipal Court on 25 August 2009.", "39. By another letter of 25 August 2009, the applicant informed the Municipal Court that he had revoked the power of attorney given to E.H. and asked to be allowed to contact four other lawyers by telephone. That letter was received by the Municipal Court on 26 August 2009. The applicant made the same request in a letter of 26 August 2009.", "40. On 31 August 2009 E.H. lodged an appeal against the first-instance judgment on the applicant’s behalf.", "41. On 7 September 2009 the applicant asked for permission to consult part of the case file.", "42. On 9 September 2009 the President of the Municipal Court appointed S.A. to act as a defence lawyer for the applicant and sent the applicant a copy of the part of the case file which he had requested to consult.", "43. On 14 September the applicant informed the Municipal Court that he did not trust S.A., and he complained that a request which he had made to contact three lawyers by telephone had not been complied with properly. He explained that he had written to two lawyers and sent letters by registered mail but had not received any confirmation of receipt. As regards the third lawyer, the number on which he had been allowed to call him had been incorrect.", "44. On 16 September the applicant contacted E.H. again. On the same day D.L., another lawyer, visited the applicant in prison.", "45. On 23 September 2009 the presiding judge of the trial panel allowed the applicant to contact two lawyers.", "46. On 27 September 2009 the applicant himself lodged an additional appeal against his conviction.", "47. On 29 September 2009 the applicant contacted a lawyer J.M.", "48. On 7 October 2009 two lawyers, J.M. and A.D. visited the applicant in prison.", "49. On 23 October 2009 the president of the trial panel of the Municipal Court informed Zagreb County Court ( Županijski sud u Zagrebu, hereinafter “the County Court”) that the applicant had asked to consult the case file.", "50. The County Court informed only the applicant’s former counsel E.H. of a session scheduled for 2 November 2009 at which the appeal was to be examined.", "51. By a judgment of 2 November 2009 issued at that session, the County Court examined all appeals lodged both by the applicant and his defence lawyer E.H. It accepted in part their arguments and reduced his sentence to four years and three months’ imprisonment, without holding a hearing and in the absence of the applicant and the lawyers E.H. and S.A. The remainder of the appeals was dismissed, and in that part the first ‑ instance judgment was upheld.", "52. On 19 November 2009 the applicant was taken from the detention facility to prison, where he started to serve his sentence.", "53. The applicant then lodged a request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomoćne presude ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ). He argued, inter alia, that he had not been notified of the session at which the County Court had examined his appeal and issued its judgment, even though under the rules of criminal procedure an accused who demanded a hearing before a second-instance court had to be informed of such a session. Only his former counsel E.H. had been notified, even though he had no longer represented him at the time.", "54. On 20 January 2010 the Supreme Court quashed the second-instance judgment and remitted the case. It held that the County Court had breached the rules of criminal procedure by informing the applicant’s former defence lawyer E.H. of the session of 2 November 2009, rather than his current defence lawyer S.A., who had been officially appointed.", "55. On 5 February 2010 the applicant was transferred from prison to a detention facility in Zagreb. On the same day, the decision of the Supreme Court of 20 January 2010 was served on him.", "56. On 9 February 2010 the applicant asked the County Court to be allowed to contact five lawyers by telephone. That request was registered with the County Court on 10 February 2010 and forwarded to the Municipal Court, which received it on 15 February 2015.", "57. In the meantime, on 12 February 2010, the County Court had notified the applicant and his officially appointed defence lawyer S.A. that the session before that court, at which the applicant’s appeal was to be examined, was scheduled for 16 February 2010.", "58. By a letter received by the County Court a day before the session, the applicant asked the court to adjourn the session for a week and to grant him leave to represent himself. He explained that he had been informed of the session only four days in advance, on the afternoon of Friday, 12 February 2010, and thus had not had enough time to prepare his defence or contact anyone. He stressed that while in prison, he had written to three lawyers. At the same time, he asked for leave to represent himself, since he had “participated in the events [in respect of which] he had been charged” and was an administrative lawyer by profession. As regards the lawyer S.A., the applicant said that he did not know him and that he had never talked to him about his case. He reiterated that he had asked to be present at the session in order to give more details about the relevant facts and his former spouse’s motives for allegedly giving false statements and manipulating their children. He also enclosed submissions on the charges against him.", "59. On 16 February 2010 the presiding judge of the trial panel of the Municipal Court allowed the applicant to contact the five lawyers mentioned in his request by telephone.", "60. The session of the County Court was held as scheduled on 16 February 2010. The applicant, who was still in detention at the time, was not invited and his officially appointed defence lawyer S.A. was not present. The competent State Attorney was not present at the session either.", "61. After the session, the County Court issued a judgment identical to its previous judgment of 2 November 2009 – it reduced the applicant’s sentence to four years and three months’ imprisonment and dismissed the remainder of his appeal. The relevant part of that judgment reads as follows:", "“The presence of the accused – Miljenko Galović, who is in detention and is represented by counsel – at the session before the panel was not secured, because the panel considered that his presence had not been necessary.”", "62. On 17 February 2010 the applicant himself lodged another request for extraordinary review of a final judgment with the Supreme Court, which he supplemented on 30 March and on 18 and 22 April 2010. He argued, inter alia, that: (a) he had been notified of the County Court’s session of 16 February 2010 only four days in advance, and thus had not had enough time to prepare his defence; (b) his officially appointed counsel had never contacted him and had not attended the session; (c) due to time constraints and transfers from prison to a detention facility, he had not had enough time to hire counsel of his own choosing to represent him before the County Court; (d) he had not been invited to the session before the appeal court; and (e) in view of his previous convictions for domestic violence in proceedings on indictment and in several sets of minor-offence proceedings, his criminal conviction in the impugned judgment constituted a second conviction for the same offence.", "63. By a judgment of 27 April 2010, the Supreme Court dismissed the applicant’s request. It addressed only the issue of ne bis in idem in connection with the Zagreb Minor Offences Court’s judgment of 17 November 2008 (see paragraph 13 above). The relevant part of the judgment reads:", "“The factual background of the minor offence of which [the applicant] was found guilty by the judgment of the Minor Offences Court is not the same as the factual background of the criminal offences of which [he] had been found guilty by a final judgment of the Zagreb Municipal Criminal Court of 14 July 2009 ... Miljenko Galović has been found guilty of one criminal offence under Article 213 §§ 1 and 2 of the Criminal Code and four criminal offences under Article 215a of the Criminal Code committed in the period between February 2005 and 3 November 2008. The fact that [his] behaviour also constituted a minor offence under section 18(1) of the Protection Against Domestic Violence Act in respect of the same victims during that same period – [a minor offence] of which he had been found guilty by a judgment of the Minor Offences Court – cannot be seen as a matter which has already been judged, and there has therefore been no violation of the Criminal Code under Article 368 § 3 of the Code on Criminal Procedure.”", "64. By a decision of 27 January 2011, the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared a subsequent constitutional complaint lodged by the applicant inadmissible. It held that the Supreme Court’s decision following a request for extraordinary review of a final judgment was not susceptible to constitutional review.", "65. On 16 March 2012 the applicant was conditionally released from prison." ]

[ "RELEVANT LEGAL FRAMEWORK", "DOMESTIC LAW", "66. The relevant domestic law as regards the absence of an accused in criminal proceedings from the sessions of an appeal panel is set out in the case of Arps v. Croatia, no. 23444/12, §§ 12-15, 25 October 2016.", "67. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 110/1997 with subsequent amendments), as in force at the material time, read as follows:", "Neglect or abuse of a child or a minor", "Article 213", "“(1) A parent, adoptive parent, guardian or other individual who grossly neglects his or her duties to care for or raise a child or minor shall be punished by imprisonment for six months to five years.", "(2) The penalty referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive parent, guardian or other individual who abuses a child or minor; [who] forces [the child] to perform work unsuitable for his or her age, or to work excessively, or to beg; [who], out of greed, induces [the child] to behave in a manner harmful to his or her development; or [who] puts [the child] in danger by [engaging in] dangerous activities or in some other way.”", "Domestic violence", "Article 215a", "“A family member who, through violence, ill-treatment or particularly contemptuous behaviour, places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.”", "68. The Protection against Domestic Violence Act ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 116/2013), inter alia, defines the minor offence of domestic violence and provides sanctions which may be imposed on those convicted of that offence. The relevant provisions read:", "Section 4", "“Domestic violence is:", "- every application of physical or psychological force against a person’s integrity;", "- all conduct by a family member capable of causing fear of physical or psychological pain;", "- causing [a person to] feel scared or personally threatened, or [causing] injury to a person’s dignity;", "- physical assault, irrespective of whether it results in bodily injury;", "- verbal assaults, insults, swearing, name-calling or other forms of serious harassment;", "- sexual harassment;", "- stalking and all other forms of harassment;", "- unlawfully isolating [a person] or restricting a person’s freedom of movement or communication with third parties;", "- damaging or destroying assets or attempting to do this.”", "Section 18", "“(1) A family member who commits [an act of] domestic violence under section 4 of this Act shall be fined between 1,000 and 10,000 Croatian kunas (HRK) for a minor offence or punished by imprisonment for up to 60 days.", "(2) A family member who repeats [an act of] domestic violence shall be fined at least HRK 5,000 for a minor offence or punished by imprisonment for at least 15 days.", "(3) An adult family member who commits [an act of] domestic violence in the presence of a child or a minor shall be fined at least HRK 6,000 for a minor offence or punished by imprisonment for at least 30 days.", "(4) An adult family member who repeats [an act of] domestic violence under subsection 3 of this section shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment for at least 40 days.", "(5) When violence under subsection 3 of this section is committed to the detriment of a child or a minor, the perpetrator shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment of at least 40 days.”", "69. In its judgment III Kr 50/11-4 of 17 January 2013, the Supreme Court held as follows:", "“The convicted person is incorrect in claiming that the conditions for instituting criminal proceedings against him had not been met because he had previously been convicted for the same event in minor-offence proceedings...", "Contrary to what is claimed by the convicted person, it is necessary to stress that he was found guilty of a continuous criminal offence of violent behaviour in the family as defined in Article 215a of the Criminal Code, the acts of which had been performed a number of times in that he verbally attacked the victim, as well as physically in the period between 26 March 2002 and 25 September 2004, so that he would hit her with his hands all over her body and head, push her [so that] she fell over, and she was otherwise disabled and walking with crutches, and two times he hit her with a chair on her head and body.", "In connection with such incrimination, it is necessary to stress that violent behaviour of the convicted person has been performed throughout the criminalizing period and even outside the three instances in relation to which medical documentation has been obtained.", "...", "...in relation to the event which represents the very end of the continuous criminal offence and relates to 25 September 2004, medical documentation has been obtained and the convicted person was found guilty of domestic violence in minor-offence proceedings...", "In the Supreme Court’s opinion, the present case concerns a continuous criminal offence as defined in Article 215a of the Criminal Code, which consists of several instances of domestic violence to which the victim had been exposed almost on a daily basis, thereby putting her in a humiliating position; therefore the K. Minor Offence Court’s judgment relating to the event of 25 September 2004 by no means represents a court decision on the same matter which the criminal courts were called upon to decide in regular criminal proceedings. This is because the minor offence proceedings established the convicted person’s guilt only in relation to one single act of domestic violence committed only on 24 September 2004, whereas the remaining acts [of domestic violence] and the forms [thereof] ... are not even mentioned in the description of the minor offence, so already for that reasons this [case] cannot concern a res judicata, as wrongly argued by the convicted person...”", "EUROPEAN UNION LAW", "70. The relevant case-law of the Court of Justice of the European Union (CJEU) has been cited in Bajčić v. Croatia, no. 67334/13, § 15, 8 October 2020. See also CJEU judgment in Joined cases C ‑ 596/16 Enzo di Puma and C ‑ 597/16 Anotnio Zecca adopted on 20 March 2018.", "INTERNATIONAL LAW", "71. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“Istanbul Convention”), which came into force in respect of Croatia on 1 October 2018, insofar as relevant, provides as follows:", "Article 18 § 1", "“Parties shall take the necessary legislative or other measures to protect all victims from any further acts of violence.”", "Article 45 § 1", "“Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness.”", "THE LAW", "ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (B) AND (C) OF THE CONVENTION", "72. The applicant complained that in the proceedings before the County Court he had not had adequate time for the preparation of his defence, and could not defend himself either in person or with the assistance of a lawyer because he had been informed of the session of 16 February 2010 only four days in advance. Also, he had not been given an opportunity to attend that session. He relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, the relevant part of which reads as follows:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(b) to have adequate time and facilities for the preparation of his defence;", "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;", "...”", "Admissibility", "73. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsArticle 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence", "Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence", "Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence", "74. The Court considers that the applicant’s complaint under Article 6 § 3 (b) of the Convention is closely related to his complaint concerning his right to be represented by a lawyer at the appeal stage of proceedings. Consequently, the issues of whether his right to adequate time and facilities to prepare his defence and his right to be represented by a lawyer were respected need to be examined together.", "(a) The parties’ arguments", "75. The applicant argued that, owing to the brevity of the period between his being informed of the appeal session and that session actually taking place, he had not been able to hire a lawyer and adequately prepare his defence.", "76. The Government maintained that the applicant had had sufficient time and facilities to prepare his defence in the appeal proceedings, since his chosen lawyer, E.H., had received the first-instance judgment on 13 August 2009 and both the applicant and E.H. had lodged appeals against that judgment. Once the applicant had revoked the power of attorney in respect of E.H., the national courts had appointed a State-funded lawyer for the applicant and had also granted his requests to contact other lawyers. When the Supreme Court had quashed the second-instance judgment and remitted the case to the appeal court, the appeal court had had to decide on the same appeals it had already examined, that is to say the applicant’s and E.H.’s appeals lodged in August 2009.", "77. The national courts had also granted the applicant’s repeated requests to contact other lawyers and had allowed three lawyers to visit him in prison. The applicant was responsible for the fact that he had not hired any other lawyer.", "78. The applicant had been informed of the appeal court’s session four days in advance, and given the fact that the appeal court had had to decide on the appeals lodged in August 2009, that period could not be regarded as insufficient for him to prepare his defence. Moreover, when the applicant had asked for the appeal court’s session to be adjourned for seven days, he had not explained what the purpose of that adjournment was.", "(b) The Court’s assessment", "(i) General principles", "79. The right to a fair trial under Article 6 § 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule, but must depend on the circumstances of the particular case. The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 250, 13 September 2016).", "80. Compliance with the requirements of a fair trial must be examined in each case, having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can therefore be viewed as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1. However, those minimum rights are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (ibid., § 251).", "81. Article 6 § 3 ( b) guarantees the accused “adequate time and facilities for the preparation of his defence”, and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Mayzit v. Russia, no. 63378/00, § 78, 20 January 2005; Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008; Gregačević v. Croatia, no. 58331/09, § 51, 10 July 2012; and Chorniy v. Ukraine, no. 35227/06, § 37, 16 May 2013).", "82. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and the stage of the proceedings (see Gregačević, cited above, § 51, and Albert and Le Compte v. Belgium, 10 February 1983, § 41, Series A no. 58). In this connection, the Court notes that the guarantees of Article 6 § 3 (b) go beyond trials, and extend to all stages of court proceedings (see D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 81, 24 July 2012, and Chorniy, cited above, § 38).", "83. As regards the right to a lawyer, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz v. Turkey [GC], no. 36391/02, § 51, ECHR 2008; Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 112, 12 May 2017 (extracts)). However, assigning counsel does not in itself ensure the effectiveness of the assistance counsel may provide to his client. Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between a defendant and his counsel, whether appointed under a legal-aid scheme or privately financed. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective legal assistance is manifest or sufficiently brought to their attention in another way (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002-VIII, and Orlov v. Russia, no. 29652/04, § 108, 21 June 2011).", "(ii) Application of these principles to the present case", "84. The applicant’s complaints concern the appeal stage of the proceedings and refer to his alleged inability to prepare his defence and hire a lawyer in the short period between his being informed of the appeal court’s session and the session actually taking place. The Court notes that the first-instance judgment was issued on 14 July 2009 (see paragraph 33 above) and it was served on E.H., the defence counsel chosen by the applicant (contrast with Chorniy, cited above, § 41), on 13 August 2009. Both the applicant and E.H. lodged appeals (see paragraphs 36 and 40 above). The applicant also revoked his power of attorney in respect of E.H. Subsequently, he made several requests to contact other lawyers.", "85. The Court notes that the national courts appointed a State-funded lawyer, S.A., for the applicant on 9 September 2009 (see paragraph 42 above), after the applicant had revoked the power of attorney in respect of E.H. The applicant complained that he did not trust S.A. and asked the court to allow him to contact other lawyers (see paragraph 43 above). His request was granted – he contacted several other lawyers and three lawyers visited him in prison (see paragraphs 44, 47 and 48 above). However, the applicant did not hire another lawyer.", "86. On 2 November 2009 the appeal court dismissed the appeals lodged by the applicant and E.H. and upheld the first-instance judgment (see paragraph 51 above). On 20 January 2010 the Supreme Court quashed the appeal court’s judgment and remitted the case. It is to be stressed that the appeal court was to decide on the appeals lodged by the applicant and E.H. on 19 and 31 August 2009 respectively, and that at the time when the Supreme Court remitted the case to the appeal court the applicant was not allowed to lodge further appeals or supplement his previous appeals. There is no indication, and the applicant has never made any allegations to that effect, that he did not have sufficient time and facilities to prepare his appeal, or that he did not have the services of a lawyer in connection with the appeal, or that he was hindered in preparing his appeal in any other respect (compare Chorniy, cited above, § 40).", "87. The Court would also stress that during the entire trial before the first-instance court, the applicant was represented by E.H., a lawyer of his own choosing, and had ample time and opportunity to confer with that lawyer and prepare his defence (contrast Falcão dos Santos v. Portugal, no. 50002/08, § 44, 3 July 2012). There is also no indication that the applicant was limited in terms of how many meetings he had with his chosen lawyer E.H. at any stage of the proceedings or how long those meetings were (compare Lambin v. Russia, no. 12668/08, § 45, 21 November 2017).", "88. Therefore, at the stage when the Supreme Court remitted the case to the appeal court for fresh examination of the applicant’s and E.H.’s appeals (see paragraph 54 above), the applicant had already benefitted from the services of his chosen lawyer and had had sufficient time to prepare his defence. In this connection, the Court notes that the applicant, with the assistance of his lawyer, put forward his defence before the investigating judge (see paragraph 19 above), at the trial before the first-instance court (see paragraph 30 above), and on three occasions submitted an additional written defence arguments (see paragraphs 25, 27 and 28 above). The national courts gave the applicant sufficient opportunity to hire another lawyer, but he failed to do so.", "89. In his oral and written defence, as well as in his appeals, the applicant analysed the case in detail and referred extensively to all the main items of evidence, including expert opinions and witness testimonies (see paragraphs 19, 25, 27-30 and 36 above; also compare Lambin, cited above, § 44).", "90. Given the particular circumstances of the case, the Court considers that the brevity of the period between the applicant being informed of the appeal court session and that session actually taking place did not restrict his right to adequate time and facilities to prepare his defence or his right to be legally represented in the criminal proceedings against him to such an extent that it could be said that he did not have the benefit of a fair trial.", "91. There has accordingly been no violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention in that respect.", "Article 6 § 3 (c) – the applicant’s absence from the session before the appeal court", "(a) The parties’ arguments", "92. The applicant argued that his absence from the appeal court’s session held on 16 February 2010 was in breach of his right to defend himself in person.", "93. The Government argued that under the relevant domestic law the appellate court had had the discretion to decide whether to allow the defendant to attend the session of the appeal panel. Furthermore, since the prosecution had not appealed against the first-instance judgment and had not been summoned to the session of the appeal panel, the Government were of the opinion that the applicant had not been placed in a disadvantageous position vis-à-vis the prosecution. Moreover, the applicant’s appeal had been very detailed and had mainly concerned the assessment of the facts. Given all these circumstances, the County Court had had no reason to hear him in person.", "(b) The Court’s assessment", "94. The Court notes that it has already found a violation of Article 6 §§ 1 and 3 (c) of the Convention in cases against Croatia raising a similar issue to that in the present case (see Zahirović v. Croatia, no. 58590/11, §§ 58-64, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 94-102, 4 December 2014; and Arps v. Croatia, no. 23444/12, §§ 24-29, 25 October 2016).", "95. In the above-cited cases, the Court addressed the same arguments as those put forward by the Government in the present case. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "96. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.", "ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION", "97. The applicant complained that he had been tried twice for the same offence. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows:", "“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.", "2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.", "3. No derogation from this Article shall be made under Article 15 of the Convention.”", "Admissibility", "98. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "99. The applicant maintained that he had been punished twice for the same offence by two judgments of the Zagreb Minor Offences Court (see paragraphs 9 and 13 above) and the judgment of the Municipal Court of 14 July 2009 (see paragraph 33 above). He argued that the minor-offence proceedings and the proceedings on indictment had had the same purpose, because the minor offence under section 4 of the Protection against Domestic Violence Act and the criminal offences under Article 215a of the Criminal Code both concerned violent behaviour within the family covering the same forms of violence and harassment. The purpose of both offences was to establish that violent behaviour was unacceptable, unlawful and banned.", "100. The applicant also contended that the evidence had been presented and assessed separately in each set of proceedings, and that the sanctions imposed on him in the minor-offence proceedings had not been deducted from the penalty ultimately imposed on him in the proceedings on indictment.", "101. The Government concentrated their arguments on the applicant’s conviction in the minor-offence proceedings of 17 November 2008 (see paragraph 9 above). They maintained that his conviction in the proceedings on indictment for four counts of domestic violence and one count of child neglect and abuse over a period of almost three years (from 2005 to 3 November 2008) could not be seen as being the same as his conviction in minor-offence proceedings for one count of domestic violence in respect of the events of 3 and 4 November 2008. In the proceedings on indictment, the applicant had been convicted of numerous violent acts consisting of insults, threats and physical assaults committed over a longer period of time in respect of four members of his family, whereas in the minor-offence proceedings he had been convicted of a single offence committed in respect of two members of his family over two consecutive days.", "102. The Government stressed that the factual background of the event of 3 November 2008 in respect of which the applicant had been convicted in the proceedings on indictment was not the same as the factual background in respect of which he had been convicted in the minor-offence proceedings. In the latter scenario, the applicant had been convicted because on 3 November 2008, after verbally insulting his former spouse and his daughter M.G., he had slapped his former spouse several times on her left cheek and ear and thus caused her less serious bodily injury (contusions to the head and bleeding from the ear). The applicant would have been convicted in the proceedings on indictment, irrespective of the events of 3 November 2008 –the verbal assault on his daughter M.G. and the verbal and physical assault on his former spouse Mi.G. – because it was not necessary to specify each and every verbal or physical assault on a family member to prove the existence of the criminal offence of domestic violence.", "103. The Government contended that the two sets of proceedings had been closely related in nature and time and had amounted to a single complementary response by the State to the applicant’s unlawful conduct. The purpose of the minor-offence proceedings had been to punish each incident separately, whereas the purpose of the criminal proceedings on indictment had been to protect family members from the violence to which they had been exposed over a longer period.", "104. The Government pointed out that the same documentary evidence had been used in both sets of proceedings, whereas the trial court in the proceedings on indictment had been obliged to hear all witnesses in person, and could not use the witness statements which had been given in the minor-offence proceedings. Lastly, the applicant’s sentence from the minor ‑ offence proceedings had been deducted from his sentence in the proceedings on indictment.", "The Court’s assessment", "(a) Whether all the proceedings concerned were criminal in nature", "105. In comparable cases against Croatia involving minor offences, the Court has held, on the basis of the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), that minor-offence proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Bajčić v. Croatia, no. 67334/13, §§ 27-28, 8 October 2020; and, in the context of an Article 6 complaint, Marčan v. Croatia, no. 40820/12, § 33, 10 July 2014).", "106. Taking into consideration the nature of the offence in question, together with the severity of the penalty, the Court sees no reason to depart from the conclusion reached in those previous cases and holds that both sets of proceedings in the present case concerned a “criminal” matter within the autonomous meaning of Article 4 of Protocol No. 7.", "(b) Whether the offences for which the applicant was prosecuted were the same ( idem )", "107. The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 78-84, ECHR 2009). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same ( idem ) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court’s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin, cited above, § 83). The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84).", "108. In the present case, the applicant was first convicted in minor-offence proceedings in respect of two separate incidents – by judgments of 16 January 2008 in respect of an incident which occurred on 10 January 2008 (see paragraph 9 above), and then by the judgment of 17 November 2008 for the incident of 3 November 2008 (see paragraph 13 above).", "109. Subsequently, in the proceedings on indictment, the applicant was charged with and, on 14 July 2009 found guilty of, four counts of domestic violence committed against his family members in the period between February 2005 and November 2008. The Court notes that, while the applicant’s conviction in the proceedings on indictment did not expressly refer to any specific event of 10 January 2008, it clearly encompassed the period between February 2005 and November 2008, thereby implicitly covering all the incidents that might have happened during that time.", "110. On the other hand, the criminal court judgment expressly referred to the event of 3 November 2008 in respect of which the applicant had been found guilty in the minor-offence proceedings on 17 November 2008 (see paragraph 13 above). Both the decision issued in the minor-offence proceedings of 17 November 2008 and the judgment issued in the proceedings on indictment of 14 July 2009 refer to the same words spoken by the applicant to his daughter and his former spouse, and to the applicant’s physical assault on the latter. In both decisions, those events are described in almost the same terms, and they clearly refer to the same events of 3 November 2008.", "111. At the same time, the Court notes that the indictment in the criminal proceedings contained a number of additional facts not encompassed by the decision in the impugned set of minor-offence proceedings, namely acts of domestic violence towards the applicant’s younger daughter Z.G. and his son H.G., as well as, most notably, that the applicant’s violent behaviour occurred over a longer period of time (see paragraph 23 above). The proceedings on indictment therefore concerned a criminal offence of domestic violence as defined in Article 215a of the Criminal Code (see paragraph 69 above). In fact, the criminal conviction enumerated several examples of the applicant’s violent behaviour towards his family members and expressly stated that such conduct culminated in the incident of 3 November 2008 (see paragraph 33 above). It transpires that the inclusion of the incident of 3 November 2008 served to show only one of the instances – notably, the most violent one – of the applicant’s reprehensible behaviour which had persisted over a period of some three years and had caused his family members fear, anxiety and risk for their life (see paragraph 33 above). In other words, the domestic courts sought to show that the applicant’s conduct, which had been sanctioned on a number of occasions in minor-offence proceedings, eventually reached the threshold of seriousness so as to be considered and punished under criminal law.", "112. The Court notes that the facts for which the applicant had already been convicted in the two impugned sets of minor-offence proceedings formed an integral part of the subsequent proceedings on indictment. The Court thus accepts that the facts in the subsequent criminal proceedings had in part been identical to the facts in the two sets of minor-offence proceedings complained of. In view of this, any possible arbitrary treatment by the judicial system in breach of the ne bis in idem principle in those proceedings must be eliminated. The Court will therefore proceed to examine whether there had been a duplication ( bis ) of the proceedings in breach of Article 4 of Protocol No. 7.", "(c) Whether there was duplication of proceedings ( bis )", "113. As the Grand Chamber explained in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 130, 15 November 2016), Article 4 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected (ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include:", "– whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved;", "– whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem );", "– whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any additional disadvantages resulting from duplication of proceedings and in particular duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of the facts in one set of proceedings is replicated in the other;", "– and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 131-32).", "114. At the outset the Court reiterates that the States are under a positive obligation under Articles 3 and 8 of the Convention to provide and maintain an adequate legal framework affording protection against acts of domestic violence (see Ž.B. v. Croatia, no. 47666/13, §§ 47 and 49, 11 July 2017). With regard to the adequacy of the legal framework for the protection from domestic violence, the Court notes that there is a common understanding in the relevant international materials that comprehensive legal and other measures are necessary to provide victims of domestic violence with effective protection (see, for example, paragraph 71 above). These measures include, in particular, the criminalisation of acts of violence within the family by providing effective, proportionate and dissuasive sanctions (ibid., § 51).", "115. The Court further notes that the Contracting States have different approaches to the criminalisation of domestic violence in their legal systems. It has already held that the legislative solutions provided for under the Criminal Code and the Minor Offences Act applicable at the relevant time in Croatia did not appear to be contrary to the relevant international standards (see Ž.B., cited above, §§ 38-39 and 56). The Court further reiterates that it was for the domestic authorities to assess the findings of fact and to decide, in accordance with the domestic law as interpreted by the national courts, how the applicant’s conduct ought to be classified and prosecuted (see Rohlena v. the Czech Republic, [GC], no. 59552/08, § 55, ECHR 2015).", "116. In that connection the Court observes that domestic violence is rarely a one-off incident; it usually encompasses cumulative and interlinked physical, psychological, sexual, emotional, verbal and financial abuse of a close family member or partner transcending circumstances of an individual case (see Volodina v. Russia, no. 41261/17, § 71, 9 July 2019). The recurrence of successive episodes of violence within personal relationships or closed circuits represents the particular context and dynamics of domestic violence (see ibid., § 86; and Kurt v. Austria [GC], no. 62903/15, § 164, 15 June 2021). Thus the Court has already recognised that domestic violence could be understood as a particular form of a continuous offence characterised by an ongoing pattern of behaviour (see Rohlena, cited above, § 72; and Valiulienė v. Lithuania, no. 33234/07, § 68, 26 March 2013) in which each individual incident forms a building block of a wider pattern.", "117. In view of the above, the Court notes that the Croatian legislature at the material time opted to regulate the socially undesirable conduct of violent behaviour towards family members as an integrated dual process. One single act of domestic violence, which did not amount to some other criminal offence punishable under the Criminal Code, was to be sanctioned as a minor offence of domestic violence. Such a minor offence was predominantly incident-focused and covered a wider range of behaviours outside the boundaries of traditional criminal law. Where there was a pattern of such behaviour, the Criminal Code at the material time provided an additional option of bringing charges for the criminal offence of domestic violence as defined in Article 215a of the Criminal Code. The Supreme Court of Croatia has interpreted Article 215a of the Criminal Code, as in force at the material time, in similar circumstances to the present case, as a continuous offence seeking to address repeated and continuous behaviour in relationships (see paragraph 69 above; see also Rohlena, cited above, § 72).", "118. The Court notes that the purpose of the minor-offence proceedings was to provide a prompt reaction to a particular incident of domestic violence that in itself did not amount to any criminal offence under the Criminal Code in order to timely and effectively prevent further escalation of violence within the family and to protect the victim. This is what has been done in the applicant’s case on a number of separate occasions (see paragraphs 6, 7, 8, 9 and 13 above). Once the applicant’s unlawful behaviour reached a certain level of severity, the proceedings on indictment were initiated against him, aimed at addressing an ongoing situation of violence in a comprehensive manner (see, mutatis mutandis, A. v. Croatia, no. 55164/08, § 76, 14 October 2010). The individual incidents sanctioned in two sets of minor-offence proceedings complained of, taken together with other incidents, demonstrated a pattern of behaviour and contributed to the assessment of the seriousness of the applicant’s criminal conduct and only in their entirety did they reflect the cumulative impact on his victims. In these circumstances the Court has no cause to call into question the reasons for such partial duplication of the proceedings, which pursued the general interest of promptly and adequately reacting to domestic violence, that has particularly damaging effects on the victim, the family and society as a whole by gradually intensifying the State’s response. The Court notes that such dual proceedings represented complementary response to socially offensive conducts of domestic violence (compare and contrast Nodet v. France, no. 47342/14, § 48, 6 June 2019).", "119. The Court would further stress that duplication of proceedings and penalties may be allowed only under conditions provided for and exhaustively defined by clear and precise rules allowing individuals to predict which acts or omissions were liable to be subject to such a duplication of proceedings and penalties, thereby ensuring that the right guaranteed by Article 4 of Protocol No. 7 is not called into question as such and legal certainty is preserved. As regards the question of whether duality of the proceedings had been foreseeable for the applicant, the Court notes that, having behaved violently towards close family members on a number of occasions, the applicant should have been aware that his conduct could have entailed consequences such as the institution of minor-offence proceedings for a particular individual incident under the Protection against Domestic Violence Act and criminal proceedings for continuous and repeated behaviour of domestic violence criminalised under the Criminal Code.", "120. As to the manner of conducting the proceedings, the Court observes that the criminal court took note of all the previous minor-offence judgments against the applicant (see paragraph 33 above) and used certain documentary evidence from those proceedings (for example, the same record of examination of blood alcohol dated 4 November 2008; see paragraphs 13 and 33 above). The fact that the criminal court decided again to hear certain witnesses, such as Mi.G. and M.G. at the trial may be regarded as an inherent feature of proceedings on indictment and a requirement safeguarding the rights of the accused under Article 6 of the Convention. The Court therefore concludes that the interaction and coordination between the two courts was adequate and that the two sets of proceedings formed a coherent whole. (see, a contrario, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 65-74, 30 April 2015, where the applicants had first been acquitted in criminal proceedings, and later on received severe administrative fines for the same conduct). Consequently, the applicant has not suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary.", "121. As regards the sanctions imposed, the Court firstly notes that each of the applicant’s minor-offence convictions took into account the penalty imposed on him in the previous minor-offence proceedings (see paragraphs 7, 9 and 13 above). Subsequently, the criminal court expressly acknowledged that the applicant had already been punished in five sets of minor offence proceedings. It also deducted from his sentence the period which the applicant had spent in detention on the basis of the two minor ‑ offence convictions complained of, dated 10 January 2008 and 17 November 2008 (see paragraph 13 above). Consequently the domestic courts applied the principle of deduction and ensured that the overall amount of penalties imposed on the applicant was proportionate to the seriousness of the offence concerned (compare A and B, cited above, § 144; and contrast Glantz v. Finland, no. 37394/11, § 61, 20 May 2014, and Nykänen v. Finland, no. 11828/11, § 51, 20 May 2014). It cannot therefore be said that the applicant was made to bear an excessive burden (see the relevant criteria set out in A and B v. Norway, cited at paragraph 113 above).", "122. Finally, turning to the connection in time between the various sets of proceedings, the Court notes that the time element in the specific context of domestic violence bearing in mind its specific dynamics (see paragraph 116 above) takes on a particular meaning. What is important in this context is for the domestic criminal-law system to effectively deal with instances of domestic violence, individually and in their aggregate, by producing adequate deterrent effects capable of ensuring the effective prevention of unlawful acts (see, for example, Bălşan v. Romania, no. 49645/09, §§ 71 and 87, 23 May 2017; see also paragraph 71 above). In the present case, as already stated, the authorities intervened, when informed, each time there had been an isolated incident of domestic violence in the family in order to provide immediate relief to its victims (see paragraphs 6, 7, 8, 9 and 13 above). After a number of incidents occurring relatively close together in time, namely over a period of some three years, reached a certain degree of severity and “culminated” (as the domestic criminal court stated; see paragraph 33 above) in the event of 3 November 2008, the authorities initiated the last set of minor-offence proceedings, and, about a month thereafter, the proceedings on indictment for the continuous offence of domestic violence under Article 215a of the Criminal Code (see paragraphs 11 and 17 above, see also Rohlena, cited above, §§ 20, 33, 61 and 72). In fact, the criminal investigation started on 3 December 2009, after the Zagreb Minor Offence Court had found the applicant guilty of domestic violence in respect of the last incident (see paragraph 13 above) and he was indicted on 26 January 2009, two days before the judgment in the minor offence proceedings had become final (see paragraphs 17 and 23 above). Any disadvantage that might have ensued for the applicant from conducting these two proceedings in parallel for such a short period of time was thus negligible. The criminal proceedings thereafter continued for eight months at first instance and another two and half years on appeal and before the Constitutional Court. Thus, the Court is satisfied that the various proceedings were sufficiently connected in time so that the subsequent institution of criminal proceedings could not be seen as abusive (see, mutatis mutandis, A and B v. Norway, cited above, § 151; and contrast Johannesson and Others v. Iceland, no. 22007/11, § 54, 18 May 2017; and Kapetanios, cited above, § 67).", "123. In conclusion, in the Court’s opinion, the aims of punishment, whereby different aspects of the same conduct are addressed, ought to be considered as a whole and have in the present case been realised through two foreseeable complementary types of proceedings, which were sufficiently connected in substance and in time, as required by the Court’s case-law, to be considered to form part of an integral scheme of sanctions under Croatian law for offences of domestic violence. There was an adequate level of interaction between the courts in those proceedings, and the punishments imposed, taken together, did not make the applicant bear an excessive burden, but were proportionate to the seriousness of the offence. In view of the foregoing, the Court finds no abuse of the State’s right to impose a punishment ( jus puniendi ), nor can it conclude that the applicant suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties when criminal proceedings for a continuous offence of domestic violence were conducted following five previous convictions in the minor-offence proceedings for individual acts which formed an integral part of the pattern of the applicant’s behaviour (see, a contrario, Kapetanios and Others, cited above, §§ 65-74; see also the relevant CJEU case-law cited in paragraph 70 above). Rather, those proceedings and penalties formed a coherent and proportionate whole, which enabled punishing both the individual acts committed by the applicant and his pattern of behaviour in an effective, proportionate and dissuasive manner (see, mutatis mutandis, A and B v. Norway, cited above, §§ 112, 130 and 147; and Bajčić, cited above, § 46).", "124. It follows that there has been no violation of Article 4 of Protocol No. 7 to the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "125. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "126. The claimed 856,000 Croatian kunas (HRK; approximately 114,130 euros (EUR)) in respect of pecuniary damage on account of his loss of salary during the period when he had been detained and serving his prison term, loss of profit and not maintaining his house. He also claimed compensation for non-pecuniary damage in the amount of HRK 700,000 (approximately EUR 93,300).", "127. The Government deemed these claims excessive, unfounded and unsubstantiated.", "128. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it finds that the applicants must have suffered non-pecuniary damage as a result of the violation of Article 6 §§ 1 and 3 (c) of the Convention found, which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards him EUR 1,500 under this head, plus any tax that may be chargeable to him.", "Costs and expenses", "129. The applicant also claimed HRK 10,000 (approximately EUR 1,360) in respect of costs and expenses incurred before the Court.", "130. The Government deemed that claim excessive, unfounded and unsubstantiated.", "131. The Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court in that he did not submit itemised particulars of his claim for costs and expenses or any relevant supporting documents, even though he was invited to do so. In these circumstances, the Court makes no award under this head (Rule 60 § 3).", "Default interest", "132. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1957 and lives in Zagreb. He was represented before the Court by Ms T. Milanković Podbrežnički, a lawyer practising in Zagreb.", "3. The Croatian Government were represented by their Agent, Ms Š. Stažnik.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. On 4 July 2007 the Zagreb Municipal Court ( Općinski sud u Zagrebu ) found the applicant guilty in criminal proceedings concerning domestic violence and neglect and abuse of a minor child for the period between March 2002 and the end of February 2005. He was sentenced to two years’ imprisonment suspended for a period of five years. That judgment was upheld on appeal and the suspended sentence was subsequently revoked (see paragraph 33 below).", "The minor-offence proceedings", "6. Meanwhile, on 6 October 2006 the Zagreb Minor Offences Court ( Prekršajni sud u Zagrebu ) found the applicant guilty of a minor offence of domestic violence under section 4 of the Protection against Domestic Violence Act (see paragraph 68 below) against his minor daughter Z.G., committed on 5 October 2006. He was sentenced to fifty days’ imprisonment suspended for one year.", "7. On 2 February 2007 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G. and his son H.G committed on 30 January 2007. He was sentenced to ten days’ imprisonment, whereas his previous suspended sentence had been revoked (see paragraph 6 above) and he was sentenced to a total of fifty ‑ nine days’ imprisonment.", "8. On 3 April 2007 the same court found the applicant guilty of a minor offence of domestic violence against his wife Mi.G., his son H.G. and his minor daughter Z.G. committed earlier that same day. He was sentenced to forty days’ imprisonment suspended for ten months.", "9. On 16 January 2008 the Zagreb Minor Offences Court found the applicant guilty of a minor offence of domestic violence, in that on 10 January 2008 he had verbally insulted his daughters Z.G. and M.G. and his wife Mi.G. The applicant was given a suspended sentence of seventy-six days’ imprisonment, taking into account a previously imposed suspended sentence (see paragraph 8 above), with a one-year probation period. That judgment was upheld on appeal.", "10. On 4 November 2008 the Kutina Social Welfare Centre received a complaint from Mi.G. She alleged that on 3 November 2008 the applicant had behaved violently in their family home, had blamed her for the loss of his job and had been threatening to kill her since 2005. She produced medical documentation of the same day, indicating that she had sustained injuries to her head. The Kutina Social Welfare Centre lodged a criminal complaint with the police.", "11. On 4 November 2008 the police instituted minor-offence proceedings against the applicant before the Zagreb Minor Offences Court for the minor offence of domestic violence under section 4 and section 18(3) of the Protection against Domestic Violence Act committed on 3 November 2008 against Mi.G. – who by that time was his former spouse – and his daughter M.G.", "12. On the same day the applicant was arrested and placed in detention.", "13. On 17 November 2008 the Zagreb Minor Offences Court found the applicant guilty of violent behaviour within the family towards Mi.G. and his older daughter M.G. and sentenced him to thirty days’ imprisonment. At the same time it revoked the applicant’s previous suspended sentence (see paragraphs 8 and 9 above), and imposed a sentence of 112 days’ imprisonment in total. The relevant part of that judgment read as follows:", "“The accused, Miljenko Galović, ... is guilty in that on 3 and 4 November 2008 at 10.02 a.m. in [his] family house in ... while being under the influence of alcohol, he behaved violently within [his] family, in that on 3 November 2008 at about 4 p.m. he verbally insulted his daughter M.G. and former spouse Mi.G. by saying to them ‘Whores, sluts, I have lost my job because of you!’, after which his daughter M. left the house, and after her return at about 8.30 p.m. he continued to insult her by saying ‘Slut, whore, you and your mother, I have lost my job because of you!’, after which she locked herself in a room while the accused banged at the door of her room, continuing to insult her by saying ‘Slut, whore, get out of the house, go to your lover, go away!’, and on 3 November 2008 at 5 p.m. he verbally assaulted his former spouse Mi.G. by saying ‘Whore, do you know that I got fired today because of you. I will throw you out of the house, I will kill you. Now you have no alimony, the bank will take your assets. See how stupid you are, a whore from Moslavina-Zagorje!’, after which he went to sleep and when he woke up at 6.30 p.m. he went to the room where his former spouse was and continued to verbally insult her by saying ‘Whore, I lost my job today’, after which he physically assaulted her by approaching the bed on which she was sitting, grabbing her by the hair with both hands and throwing her onto the bed. He [continued to] hold her by the hair with his left hand and with his right hand he slapped her several times on the left cheek and ear while saying to her ‘Come on, shout, shout, I will kill you before the police arrive. If you put me in prison, after two years I will find you, you are mine!’", "...", "The court inspected ... the record of examination of blood alcohol [of 4 November 2008].”", "14. By a judgment of 28 January 2009, the High Minor Offences Court altered the legal characterisation of the offence and held that it was an offence under section 18(1) of the Protection against Domestic Violence Act, and not section 18(3) of that Act. Otherwise, it dismissed an appeal by the applicant and upheld the first-instance judgment, which thus became final.", "The proceedings on indictment", "15. On 4 November 2008 Mi.G. lodged a criminal complaint against the applicant with the Kutina police, concerning the events of 3 November 2008. On 2 December 2008 the police supplemented Mi.G.’s criminal complaint with previous events covering the period between February 2005 and 4 November 2008 and forwarded it to the Zagreb Municipal State Attorney’s Office.", "16. On 2 December 2008 the applicant was transferred from detention for minor offences to criminal detention, on suspicion of having committed criminal offences: domestic violence against his spouse, his two daughters and his son; and child neglect and abuse against his younger daughter.", "17. On 3 December 2008, referring among other things to documents on the basis of which the previous minor offence proceedings had been conducted, the Zagreb Municipal State Attorney’s Office requested the investigating judge to conduct investigative activities in respect of the applicant in relation to criminal offences: four counts of domestic violence perpetrated against his former spouse, his two daughters and his son, and one count of child neglect and abuse against his younger daughter Z.G. On the same day the applicant was heard by an investigating judge of the same court, in the presence of E.H, a defence lawyer of his own choosing. He denied the charges against him. The investigating judge ordered that the applicant be detained for forty-eight hours on the grounds that there was a danger that he would suborn witnesses.", "18. The applicant’s detention was subsequently extended throughout the investigation and his trial.", "19. On 12 December 2008 the applicant sent his written defence to the investigating judge.", "20. On 15 December 2008 the investigating judge heard evidence from: an expert witness in psychiatry who had carried out a psychiatric examination of the applicant in 2005, a lawyer from the Social Welfare Centre in charge of the applicant and his family, and the applicant’s former spouse Mi.G. Neither the applicant nor his defence lawyer was present.", "21. On 20 January 2009 the investigating judge heard evidence from the applicant’s son H.G and his older daughter M.G. The applicant’s defence lawyer was present.", "22. On 21 January 2009 the investigating judge heard evidence from the applicant’s younger daughter Z.G. Neither the applicant nor his defence lawyer was present.", "23. On 26 January 2009 the Zagreb State Attorney’s Office indicted the applicant before the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu, hereinafter “the Municipal Court”) for criminal offences: four counts of domestic violence as defined in Article 215a of the Criminal Code, perpetrated against his former spouse, his two daughters and his son; and one count of child neglect and abuse as defined in Article 213 of the Criminal Code, committed against his minor daughter Z.G. According to the indictment, these offences were perpetrated in the period between February 2005 and 3 November 2008.", "24. On 10 February 2009 the Municipal Court ordered a psychiatric assessment of the applicant.", "25. On 23 February 2009 the applicant submitted an additional written defence.", "26. On 10 March 2009 a psychiatrist submitted a report on the applicant, finding that at the time of the alleged offences his capacity to understand his actions had been reduced, but not significantly.", "27. On 11 March 2009 the applicant submitted an additional written defence.", "28. On 17 March 2009 the applicant submitted his written “closing arguments”.", "29. At a hearing held before the Municipal Court on 24 March 2009, the applicant and three witnesses gave evidence.", "30. On 19 May 2009 the applicant submitted an additional written defence.", "31. Further hearings were held on 2 and 23 June, and on 7 and 14 July 2009. Several witnesses and an expert in psychiatry gave evidence.", "32. On 15 June 2009 the applicant asked the court to allow him to consult the case file. His request was granted.", "33. By a judgment of 14 July 2009, the Municipal Court found the applicant guilty of one count of child neglect and abuse in respect of his then minor daughter Z.G. and imposed a sentence of ten months’ imprisonment. He was also found guilty of four counts of domestic violence in total in respect of: his daughter Z.G., for which a prison term of six months was imposed; his daughter M.G., for which a prison term of nine months was imposed; his son H.G., for which a prison term of seven months was imposed; and his former spouse Mi.G., for which a prison term of one year was imposed. At the same time his suspended sentence of two years which had been imposed in a previous set of criminal proceedings was revoked (see paragraph 5 above), and he was sentenced cumulatively to five years’ imprisonment. A security measure of compulsory treatment for alcohol addiction was also imposed on him. The relevant part of the judgment read:", "“The accused, Miljenko Galović, ... is guilty in that in the period between February 2005 and 3 November 2008 in ..., in the flat where he lived in the same household with his daughter Z., a minor, ..., adult daughter M. ... and adult son H., as the common-law spouse of Mi.G., [while] frequently under the influence of alcohol in the presence of Z., a minor, even though he knew that he could put her psycho-physical development at risk, he was verbally and physically assaulting his spouse Mi. and adult children, in that he was calling his common-law spouse ugly names: ‘whore, slut’, and cursing her mother, threatening to kill and sell her, and was physically attacking her by slapping her, pulling her hair and throwing her to the ground, all this in the presence of Z., a minor, and his daughter M. and son H., and [was threatening to] throw his common-law spouse Mi. and the children out of the flat, and threatening to kill them, and on one occasion in December 2007 he took a kitchen knife and put it to the throat of his common-law spouse Mi. and told her that she had to send the agents of the [prosecuting authorities for organised crime] to search for him in bars, and he charged at [his common-law spouse] while brandishing the knife, while he insulted his daughter M. by telling her that she was a ‘whore, slut and a whore from Moslavina’, and to go to her lover, and he also insulted his son H. by telling him that he was ‘an imbecile, an idiot’, and cursed his mother, and said to him ‘give me a blowjob’, and at the same time he pushed H. This caused H. to move out of the flat at the beginning of 2007. [The accused] was frequently telling Z., a minor, that she was a ‘fat pig’, that ‘nobody would fuck her’, and that she was ‘a fat slut’. He grabbed her by the head and pushed her out of the flat, and continued to treat Z. in the same manner when she became an adult ... This behaviour culminated in [the events] on 3 November 2008 when the accused verbally assaulted his common-law spouse Mi. and daughter M. by telling them that they were ‘whores and sluts’, and when his common-law spouse Mi. stayed in the flat with him alone he verbally assaulted her again by telling her that she was a whore and that he had been fired because of her, [and] that he would throw her out of the house and kill her. He then physically assaulted her, in that he grabbed her hair, threw her onto a bed and hit her on the head, and continued to insult her by telling her that she was a ‘stupid whore from Moslavina and Zagorje’. Those blows made her ear bleed, and [the accused] threatened her by saying that if she called the police then he would kill her. When their daughter M. came home on the same day he entered her room and said to her ‘slut, whore, I lost my job because of you, get out of the house’, after which he followed her around the house and continued to insult her. This behaviour caused frequent police interventions and the accused, through his behaviour, put the proper psycho-physical development of his minor daughter Z. at risk. [Z.] is in psychiatric treatment owing to the accused’s behaviour ... while [his behaviour] caused his daughter M., son H. and common-law spouse Mi. to fear for their life and health [and] to experience anxiety [in this respect].", "...", "In the course of the proceedings, the court inspected ... record of examination of blood alcohol [of 4 November 2008]..., the Zagreb Minor Offences Court judgment [of 4 November 2008] ..., medical documentation concerning Mi.G. [relating to the incident of 3 November 2008]...", "...", "In relation to the criminal offences of domestic violence from Article 215a of the Criminal Code committed against Z.G., M.G., Mi.G and H.G., the court has established that in the incriminating period the [applicant], through his extremely rude, aggressive and ruthless behaviour, put the members of his family in a humiliating position by verbally and physically endangering them, attacking, threatening, which transpires from the statements of all heard witnesses and from the material evidence in the case file. The gravity of the [applicant’s] behaviour is also visible from the fact that [his family members] have been suffering such behaviour since 1995, that his older daughter M.G. said that she thought that [his conduct] had not been punishable as long as he was not beating them, and the fact that the victims called the police only when ‘the water came to their neck’ since they are in permanent fear due to the aggressive behaviour of the [applicant]. Not even a whole series of minor offence convictions, nor a previous criminal conviction for the same criminal offences did not result in a change in the [applicant’s] behaviour, but instead it culminated on 3 November 2008 when Mi.G. left the family home in fear of her own life.", "...", "The [above] prison penalty shall include the period [the applicant] had served on the basis of the Zagreb Minor Offences Court’s decision [of 10 January 2008] between 11 and 16 January 2008 and [on the basis of its decision of 17 November 2008] between 5 November until 2 December 2008 ...”", "34. The first-instance judgment was served on the applicant’s lawyer E.H. on 13 August 2009.", "35. The applicant remained in detention.", "36. On 19 August 2009 the applicant appealed against the first-instance judgment and asked that a hearing be held. He complained at length about the wrongful assessment of the facts and application of the domestic law in his case.", "37. By a letter of the same date, which was received by the first instance court a day later, the applicant revoked the power of attorney which had been issued to E.H., his lawyer.", "38. On 24 August 2009 the applicant sent a letter to the Municipal Court stating that he needed a new defence lawyer. He submitted a list of eight lawyers and asked to be able to contact them by telephone. This letter was received by the Municipal Court on 25 August 2009.", "39. By another letter of 25 August 2009, the applicant informed the Municipal Court that he had revoked the power of attorney given to E.H. and asked to be allowed to contact four other lawyers by telephone. That letter was received by the Municipal Court on 26 August 2009. The applicant made the same request in a letter of 26 August 2009.", "40. On 31 August 2009 E.H. lodged an appeal against the first-instance judgment on the applicant’s behalf.", "41. On 7 September 2009 the applicant asked for permission to consult part of the case file.", "42. On 9 September 2009 the President of the Municipal Court appointed S.A. to act as a defence lawyer for the applicant and sent the applicant a copy of the part of the case file which he had requested to consult.", "43. On 14 September the applicant informed the Municipal Court that he did not trust S.A., and he complained that a request which he had made to contact three lawyers by telephone had not been complied with properly. He explained that he had written to two lawyers and sent letters by registered mail but had not received any confirmation of receipt. As regards the third lawyer, the number on which he had been allowed to call him had been incorrect.", "44. On 16 September the applicant contacted E.H. again. On the same day D.L., another lawyer, visited the applicant in prison.", "45. On 23 September 2009 the presiding judge of the trial panel allowed the applicant to contact two lawyers.", "46. On 27 September 2009 the applicant himself lodged an additional appeal against his conviction.", "47. On 29 September 2009 the applicant contacted a lawyer J.M.", "48. On 7 October 2009 two lawyers, J.M. and A.D. visited the applicant in prison.", "49. On 23 October 2009 the president of the trial panel of the Municipal Court informed Zagreb County Court ( Županijski sud u Zagrebu, hereinafter “the County Court”) that the applicant had asked to consult the case file.", "50. The County Court informed only the applicant’s former counsel E.H. of a session scheduled for 2 November 2009 at which the appeal was to be examined.", "51. By a judgment of 2 November 2009 issued at that session, the County Court examined all appeals lodged both by the applicant and his defence lawyer E.H. It accepted in part their arguments and reduced his sentence to four years and three months’ imprisonment, without holding a hearing and in the absence of the applicant and the lawyers E.H. and S.A. The remainder of the appeals was dismissed, and in that part the first ‑ instance judgment was upheld.", "52. On 19 November 2009 the applicant was taken from the detention facility to prison, where he started to serve his sentence.", "53. The applicant then lodged a request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomoćne presude ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ). He argued, inter alia, that he had not been notified of the session at which the County Court had examined his appeal and issued its judgment, even though under the rules of criminal procedure an accused who demanded a hearing before a second-instance court had to be informed of such a session. Only his former counsel E.H. had been notified, even though he had no longer represented him at the time.", "54. On 20 January 2010 the Supreme Court quashed the second-instance judgment and remitted the case. It held that the County Court had breached the rules of criminal procedure by informing the applicant’s former defence lawyer E.H. of the session of 2 November 2009, rather than his current defence lawyer S.A., who had been officially appointed.", "55. On 5 February 2010 the applicant was transferred from prison to a detention facility in Zagreb. On the same day, the decision of the Supreme Court of 20 January 2010 was served on him.", "56. On 9 February 2010 the applicant asked the County Court to be allowed to contact five lawyers by telephone. That request was registered with the County Court on 10 February 2010 and forwarded to the Municipal Court, which received it on 15 February 2015.", "57. In the meantime, on 12 February 2010, the County Court had notified the applicant and his officially appointed defence lawyer S.A. that the session before that court, at which the applicant’s appeal was to be examined, was scheduled for 16 February 2010.", "58. By a letter received by the County Court a day before the session, the applicant asked the court to adjourn the session for a week and to grant him leave to represent himself. He explained that he had been informed of the session only four days in advance, on the afternoon of Friday, 12 February 2010, and thus had not had enough time to prepare his defence or contact anyone. He stressed that while in prison, he had written to three lawyers. At the same time, he asked for leave to represent himself, since he had “participated in the events [in respect of which] he had been charged” and was an administrative lawyer by profession. As regards the lawyer S.A., the applicant said that he did not know him and that he had never talked to him about his case. He reiterated that he had asked to be present at the session in order to give more details about the relevant facts and his former spouse’s motives for allegedly giving false statements and manipulating their children. He also enclosed submissions on the charges against him.", "59. On 16 February 2010 the presiding judge of the trial panel of the Municipal Court allowed the applicant to contact the five lawyers mentioned in his request by telephone.", "60. The session of the County Court was held as scheduled on 16 February 2010. The applicant, who was still in detention at the time, was not invited and his officially appointed defence lawyer S.A. was not present. The competent State Attorney was not present at the session either.", "61. After the session, the County Court issued a judgment identical to its previous judgment of 2 November 2009 – it reduced the applicant’s sentence to four years and three months’ imprisonment and dismissed the remainder of his appeal. The relevant part of that judgment reads as follows:", "“The presence of the accused – Miljenko Galović, who is in detention and is represented by counsel – at the session before the panel was not secured, because the panel considered that his presence had not been necessary.”", "62. On 17 February 2010 the applicant himself lodged another request for extraordinary review of a final judgment with the Supreme Court, which he supplemented on 30 March and on 18 and 22 April 2010. He argued, inter alia, that: (a) he had been notified of the County Court’s session of 16 February 2010 only four days in advance, and thus had not had enough time to prepare his defence; (b) his officially appointed counsel had never contacted him and had not attended the session; (c) due to time constraints and transfers from prison to a detention facility, he had not had enough time to hire counsel of his own choosing to represent him before the County Court; (d) he had not been invited to the session before the appeal court; and (e) in view of his previous convictions for domestic violence in proceedings on indictment and in several sets of minor-offence proceedings, his criminal conviction in the impugned judgment constituted a second conviction for the same offence.", "63. By a judgment of 27 April 2010, the Supreme Court dismissed the applicant’s request. It addressed only the issue of ne bis in idem in connection with the Zagreb Minor Offences Court’s judgment of 17 November 2008 (see paragraph 13 above). The relevant part of the judgment reads:", "“The factual background of the minor offence of which [the applicant] was found guilty by the judgment of the Minor Offences Court is not the same as the factual background of the criminal offences of which [he] had been found guilty by a final judgment of the Zagreb Municipal Criminal Court of 14 July 2009 ... Miljenko Galović has been found guilty of one criminal offence under Article 213 §§ 1 and 2 of the Criminal Code and four criminal offences under Article 215a of the Criminal Code committed in the period between February 2005 and 3 November 2008. The fact that [his] behaviour also constituted a minor offence under section 18(1) of the Protection Against Domestic Violence Act in respect of the same victims during that same period – [a minor offence] of which he had been found guilty by a judgment of the Minor Offences Court – cannot be seen as a matter which has already been judged, and there has therefore been no violation of the Criminal Code under Article 368 § 3 of the Code on Criminal Procedure.”", "64. By a decision of 27 January 2011, the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared a subsequent constitutional complaint lodged by the applicant inadmissible. It held that the Supreme Court’s decision following a request for extraordinary review of a final judgment was not susceptible to constitutional review.", "65. On 16 March 2012 the applicant was conditionally released from prison." ]

[ "RELEVANT LEGAL FRAMEWORK", "DOMESTIC LAW", "66. The relevant domestic law as regards the absence of an accused in criminal proceedings from the sessions of an appeal panel is set out in the case of Arps v. Croatia, no. 23444/12, §§ 12-15, 25 October 2016.", "67. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 110/1997 with subsequent amendments), as in force at the material time, read as follows:", "Neglect or abuse of a child or a minor", "Article 213", "“(1) A parent, adoptive parent, guardian or other individual who grossly neglects his or her duties to care for or raise a child or minor shall be punished by imprisonment for six months to five years.", "(2) The penalty referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive parent, guardian or other individual who abuses a child or minor; [who] forces [the child] to perform work unsuitable for his or her age, or to work excessively, or to beg; [who], out of greed, induces [the child] to behave in a manner harmful to his or her development; or [who] puts [the child] in danger by [engaging in] dangerous activities or in some other way.”", "Domestic violence", "Article 215a", "“A family member who, through violence, ill-treatment or particularly contemptuous behaviour, places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.”", "68. The Protection against Domestic Violence Act ( Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 116/2013), inter alia, defines the minor offence of domestic violence and provides sanctions which may be imposed on those convicted of that offence. The relevant provisions read:", "Section 4", "“Domestic violence is:", "- every application of physical or psychological force against a person’s integrity;", "- all conduct by a family member capable of causing fear of physical or psychological pain;", "- causing [a person to] feel scared or personally threatened, or [causing] injury to a person’s dignity;", "- physical assault, irrespective of whether it results in bodily injury;", "- verbal assaults, insults, swearing, name-calling or other forms of serious harassment;", "- sexual harassment;", "- stalking and all other forms of harassment;", "- unlawfully isolating [a person] or restricting a person’s freedom of movement or communication with third parties;", "- damaging or destroying assets or attempting to do this.”", "Section 18", "“(1) A family member who commits [an act of] domestic violence under section 4 of this Act shall be fined between 1,000 and 10,000 Croatian kunas (HRK) for a minor offence or punished by imprisonment for up to 60 days.", "(2) A family member who repeats [an act of] domestic violence shall be fined at least HRK 5,000 for a minor offence or punished by imprisonment for at least 15 days.", "(3) An adult family member who commits [an act of] domestic violence in the presence of a child or a minor shall be fined at least HRK 6,000 for a minor offence or punished by imprisonment for at least 30 days.", "(4) An adult family member who repeats [an act of] domestic violence under subsection 3 of this section shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment for at least 40 days.", "(5) When violence under subsection 3 of this section is committed to the detriment of a child or a minor, the perpetrator shall be fined at least HRK 7,000 for a minor offence or punished by imprisonment of at least 40 days.”", "69. In its judgment III Kr 50/11-4 of 17 January 2013, the Supreme Court held as follows:", "“The convicted person is incorrect in claiming that the conditions for instituting criminal proceedings against him had not been met because he had previously been convicted for the same event in minor-offence proceedings...", "Contrary to what is claimed by the convicted person, it is necessary to stress that he was found guilty of a continuous criminal offence of violent behaviour in the family as defined in Article 215a of the Criminal Code, the acts of which had been performed a number of times in that he verbally attacked the victim, as well as physically in the period between 26 March 2002 and 25 September 2004, so that he would hit her with his hands all over her body and head, push her [so that] she fell over, and she was otherwise disabled and walking with crutches, and two times he hit her with a chair on her head and body.", "In connection with such incrimination, it is necessary to stress that violent behaviour of the convicted person has been performed throughout the criminalizing period and even outside the three instances in relation to which medical documentation has been obtained.", "...", "...in relation to the event which represents the very end of the continuous criminal offence and relates to 25 September 2004, medical documentation has been obtained and the convicted person was found guilty of domestic violence in minor-offence proceedings...", "In the Supreme Court’s opinion, the present case concerns a continuous criminal offence as defined in Article 215a of the Criminal Code, which consists of several instances of domestic violence to which the victim had been exposed almost on a daily basis, thereby putting her in a humiliating position; therefore the K. Minor Offence Court’s judgment relating to the event of 25 September 2004 by no means represents a court decision on the same matter which the criminal courts were called upon to decide in regular criminal proceedings. This is because the minor offence proceedings established the convicted person’s guilt only in relation to one single act of domestic violence committed only on 24 September 2004, whereas the remaining acts [of domestic violence] and the forms [thereof] ... are not even mentioned in the description of the minor offence, so already for that reasons this [case] cannot concern a res judicata, as wrongly argued by the convicted person...”", "EUROPEAN UNION LAW", "70. The relevant case-law of the Court of Justice of the European Union (CJEU) has been cited in Bajčić v. Croatia, no. 67334/13, § 15, 8 October 2020. See also CJEU judgment in Joined cases C ‑ 596/16 Enzo di Puma and C ‑ 597/16 Anotnio Zecca adopted on 20 March 2018.", "INTERNATIONAL LAW", "71. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“Istanbul Convention”), which came into force in respect of Croatia on 1 October 2018, insofar as relevant, provides as follows:", "Article 18 § 1", "“Parties shall take the necessary legislative or other measures to protect all victims from any further acts of violence.”", "Article 45 § 1", "“Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness.”", "THE LAW", "ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (B) AND (C) OF THE CONVENTION", "72. The applicant complained that in the proceedings before the County Court he had not had adequate time for the preparation of his defence, and could not defend himself either in person or with the assistance of a lawyer because he had been informed of the session of 16 February 2010 only four days in advance. Also, he had not been given an opportunity to attend that session. He relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, the relevant part of which reads as follows:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(b) to have adequate time and facilities for the preparation of his defence;", "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;", "...”", "Admissibility", "73. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsArticle 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence", "Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence", "Article 6 § 3(b) and (c) – legal representation in the appeal proceedings and adequate time and facilities to prepare a defence", "74. The Court considers that the applicant’s complaint under Article 6 § 3 (b) of the Convention is closely related to his complaint concerning his right to be represented by a lawyer at the appeal stage of proceedings. Consequently, the issues of whether his right to adequate time and facilities to prepare his defence and his right to be represented by a lawyer were respected need to be examined together.", "(a) The parties’ arguments", "75. The applicant argued that, owing to the brevity of the period between his being informed of the appeal session and that session actually taking place, he had not been able to hire a lawyer and adequately prepare his defence.", "76. The Government maintained that the applicant had had sufficient time and facilities to prepare his defence in the appeal proceedings, since his chosen lawyer, E.H., had received the first-instance judgment on 13 August 2009 and both the applicant and E.H. had lodged appeals against that judgment. Once the applicant had revoked the power of attorney in respect of E.H., the national courts had appointed a State-funded lawyer for the applicant and had also granted his requests to contact other lawyers. When the Supreme Court had quashed the second-instance judgment and remitted the case to the appeal court, the appeal court had had to decide on the same appeals it had already examined, that is to say the applicant’s and E.H.’s appeals lodged in August 2009.", "77. The national courts had also granted the applicant’s repeated requests to contact other lawyers and had allowed three lawyers to visit him in prison. The applicant was responsible for the fact that he had not hired any other lawyer.", "78. The applicant had been informed of the appeal court’s session four days in advance, and given the fact that the appeal court had had to decide on the appeals lodged in August 2009, that period could not be regarded as insufficient for him to prepare his defence. Moreover, when the applicant had asked for the appeal court’s session to be adjourned for seven days, he had not explained what the purpose of that adjournment was.", "(b) The Court’s assessment", "(i) General principles", "79. The right to a fair trial under Article 6 § 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule, but must depend on the circumstances of the particular case. The Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 250, 13 September 2016).", "80. Compliance with the requirements of a fair trial must be examined in each case, having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can therefore be viewed as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1. However, those minimum rights are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (ibid., § 251).", "81. Article 6 § 3 ( b) guarantees the accused “adequate time and facilities for the preparation of his defence”, and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Mayzit v. Russia, no. 63378/00, § 78, 20 January 2005; Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008; Gregačević v. Croatia, no. 58331/09, § 51, 10 July 2012; and Chorniy v. Ukraine, no. 35227/06, § 37, 16 May 2013).", "82. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and the stage of the proceedings (see Gregačević, cited above, § 51, and Albert and Le Compte v. Belgium, 10 February 1983, § 41, Series A no. 58). In this connection, the Court notes that the guarantees of Article 6 § 3 (b) go beyond trials, and extend to all stages of court proceedings (see D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 81, 24 July 2012, and Chorniy, cited above, § 38).", "83. As regards the right to a lawyer, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz v. Turkey [GC], no. 36391/02, § 51, ECHR 2008; Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 112, 12 May 2017 (extracts)). However, assigning counsel does not in itself ensure the effectiveness of the assistance counsel may provide to his client. Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between a defendant and his counsel, whether appointed under a legal-aid scheme or privately financed. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective legal assistance is manifest or sufficiently brought to their attention in another way (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002-VIII, and Orlov v. Russia, no. 29652/04, § 108, 21 June 2011).", "(ii) Application of these principles to the present case", "84. The applicant’s complaints concern the appeal stage of the proceedings and refer to his alleged inability to prepare his defence and hire a lawyer in the short period between his being informed of the appeal court’s session and the session actually taking place. The Court notes that the first-instance judgment was issued on 14 July 2009 (see paragraph 33 above) and it was served on E.H., the defence counsel chosen by the applicant (contrast with Chorniy, cited above, § 41), on 13 August 2009. Both the applicant and E.H. lodged appeals (see paragraphs 36 and 40 above). The applicant also revoked his power of attorney in respect of E.H. Subsequently, he made several requests to contact other lawyers.", "85. The Court notes that the national courts appointed a State-funded lawyer, S.A., for the applicant on 9 September 2009 (see paragraph 42 above), after the applicant had revoked the power of attorney in respect of E.H. The applicant complained that he did not trust S.A. and asked the court to allow him to contact other lawyers (see paragraph 43 above). His request was granted – he contacted several other lawyers and three lawyers visited him in prison (see paragraphs 44, 47 and 48 above). However, the applicant did not hire another lawyer.", "86. On 2 November 2009 the appeal court dismissed the appeals lodged by the applicant and E.H. and upheld the first-instance judgment (see paragraph 51 above). On 20 January 2010 the Supreme Court quashed the appeal court’s judgment and remitted the case. It is to be stressed that the appeal court was to decide on the appeals lodged by the applicant and E.H. on 19 and 31 August 2009 respectively, and that at the time when the Supreme Court remitted the case to the appeal court the applicant was not allowed to lodge further appeals or supplement his previous appeals. There is no indication, and the applicant has never made any allegations to that effect, that he did not have sufficient time and facilities to prepare his appeal, or that he did not have the services of a lawyer in connection with the appeal, or that he was hindered in preparing his appeal in any other respect (compare Chorniy, cited above, § 40).", "87. The Court would also stress that during the entire trial before the first-instance court, the applicant was represented by E.H., a lawyer of his own choosing, and had ample time and opportunity to confer with that lawyer and prepare his defence (contrast Falcão dos Santos v. Portugal, no. 50002/08, § 44, 3 July 2012). There is also no indication that the applicant was limited in terms of how many meetings he had with his chosen lawyer E.H. at any stage of the proceedings or how long those meetings were (compare Lambin v. Russia, no. 12668/08, § 45, 21 November 2017).", "88. Therefore, at the stage when the Supreme Court remitted the case to the appeal court for fresh examination of the applicant’s and E.H.’s appeals (see paragraph 54 above), the applicant had already benefitted from the services of his chosen lawyer and had had sufficient time to prepare his defence. In this connection, the Court notes that the applicant, with the assistance of his lawyer, put forward his defence before the investigating judge (see paragraph 19 above), at the trial before the first-instance court (see paragraph 30 above), and on three occasions submitted an additional written defence arguments (see paragraphs 25, 27 and 28 above). The national courts gave the applicant sufficient opportunity to hire another lawyer, but he failed to do so.", "89. In his oral and written defence, as well as in his appeals, the applicant analysed the case in detail and referred extensively to all the main items of evidence, including expert opinions and witness testimonies (see paragraphs 19, 25, 27-30 and 36 above; also compare Lambin, cited above, § 44).", "90. Given the particular circumstances of the case, the Court considers that the brevity of the period between the applicant being informed of the appeal court session and that session actually taking place did not restrict his right to adequate time and facilities to prepare his defence or his right to be legally represented in the criminal proceedings against him to such an extent that it could be said that he did not have the benefit of a fair trial.", "91. There has accordingly been no violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention in that respect.", "Article 6 § 3 (c) – the applicant’s absence from the session before the appeal court", "(a) The parties’ arguments", "92. The applicant argued that his absence from the appeal court’s session held on 16 February 2010 was in breach of his right to defend himself in person.", "93. The Government argued that under the relevant domestic law the appellate court had had the discretion to decide whether to allow the defendant to attend the session of the appeal panel. Furthermore, since the prosecution had not appealed against the first-instance judgment and had not been summoned to the session of the appeal panel, the Government were of the opinion that the applicant had not been placed in a disadvantageous position vis-à-vis the prosecution. Moreover, the applicant’s appeal had been very detailed and had mainly concerned the assessment of the facts. Given all these circumstances, the County Court had had no reason to hear him in person.", "(b) The Court’s assessment", "94. The Court notes that it has already found a violation of Article 6 §§ 1 and 3 (c) of the Convention in cases against Croatia raising a similar issue to that in the present case (see Zahirović v. Croatia, no. 58590/11, §§ 58-64, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 94-102, 4 December 2014; and Arps v. Croatia, no. 23444/12, §§ 24-29, 25 October 2016).", "95. In the above-cited cases, the Court addressed the same arguments as those put forward by the Government in the present case. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "96. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.", "ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION", "97. The applicant complained that he had been tried twice for the same offence. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows:", "“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.", "2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.", "3. No derogation from this Article shall be made under Article 15 of the Convention.”", "Admissibility", "98. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "99. The applicant maintained that he had been punished twice for the same offence by two judgments of the Zagreb Minor Offences Court (see paragraphs 9 and 13 above) and the judgment of the Municipal Court of 14 July 2009 (see paragraph 33 above). He argued that the minor-offence proceedings and the proceedings on indictment had had the same purpose, because the minor offence under section 4 of the Protection against Domestic Violence Act and the criminal offences under Article 215a of the Criminal Code both concerned violent behaviour within the family covering the same forms of violence and harassment. The purpose of both offences was to establish that violent behaviour was unacceptable, unlawful and banned.", "100. The applicant also contended that the evidence had been presented and assessed separately in each set of proceedings, and that the sanctions imposed on him in the minor-offence proceedings had not been deducted from the penalty ultimately imposed on him in the proceedings on indictment.", "101. The Government concentrated their arguments on the applicant’s conviction in the minor-offence proceedings of 17 November 2008 (see paragraph 9 above). They maintained that his conviction in the proceedings on indictment for four counts of domestic violence and one count of child neglect and abuse over a period of almost three years (from 2005 to 3 November 2008) could not be seen as being the same as his conviction in minor-offence proceedings for one count of domestic violence in respect of the events of 3 and 4 November 2008. In the proceedings on indictment, the applicant had been convicted of numerous violent acts consisting of insults, threats and physical assaults committed over a longer period of time in respect of four members of his family, whereas in the minor-offence proceedings he had been convicted of a single offence committed in respect of two members of his family over two consecutive days.", "102. The Government stressed that the factual background of the event of 3 November 2008 in respect of which the applicant had been convicted in the proceedings on indictment was not the same as the factual background in respect of which he had been convicted in the minor-offence proceedings. In the latter scenario, the applicant had been convicted because on 3 November 2008, after verbally insulting his former spouse and his daughter M.G., he had slapped his former spouse several times on her left cheek and ear and thus caused her less serious bodily injury (contusions to the head and bleeding from the ear). The applicant would have been convicted in the proceedings on indictment, irrespective of the events of 3 November 2008 –the verbal assault on his daughter M.G. and the verbal and physical assault on his former spouse Mi.G. – because it was not necessary to specify each and every verbal or physical assault on a family member to prove the existence of the criminal offence of domestic violence.", "103. The Government contended that the two sets of proceedings had been closely related in nature and time and had amounted to a single complementary response by the State to the applicant’s unlawful conduct. The purpose of the minor-offence proceedings had been to punish each incident separately, whereas the purpose of the criminal proceedings on indictment had been to protect family members from the violence to which they had been exposed over a longer period.", "104. The Government pointed out that the same documentary evidence had been used in both sets of proceedings, whereas the trial court in the proceedings on indictment had been obliged to hear all witnesses in person, and could not use the witness statements which had been given in the minor-offence proceedings. Lastly, the applicant’s sentence from the minor ‑ offence proceedings had been deducted from his sentence in the proceedings on indictment.", "The Court’s assessment", "(a) Whether all the proceedings concerned were criminal in nature", "105. In comparable cases against Croatia involving minor offences, the Court has held, on the basis of the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), that minor-offence proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Bajčić v. Croatia, no. 67334/13, §§ 27-28, 8 October 2020; and, in the context of an Article 6 complaint, Marčan v. Croatia, no. 40820/12, § 33, 10 July 2014).", "106. Taking into consideration the nature of the offence in question, together with the severity of the penalty, the Court sees no reason to depart from the conclusion reached in those previous cases and holds that both sets of proceedings in the present case concerned a “criminal” matter within the autonomous meaning of Article 4 of Protocol No. 7.", "(b) Whether the offences for which the applicant was prosecuted were the same ( idem )", "107. The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 78-84, ECHR 2009). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same ( idem ) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court’s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin, cited above, § 83). The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84).", "108. In the present case, the applicant was first convicted in minor-offence proceedings in respect of two separate incidents – by judgments of 16 January 2008 in respect of an incident which occurred on 10 January 2008 (see paragraph 9 above), and then by the judgment of 17 November 2008 for the incident of 3 November 2008 (see paragraph 13 above).", "109. Subsequently, in the proceedings on indictment, the applicant was charged with and, on 14 July 2009 found guilty of, four counts of domestic violence committed against his family members in the period between February 2005 and November 2008. The Court notes that, while the applicant’s conviction in the proceedings on indictment did not expressly refer to any specific event of 10 January 2008, it clearly encompassed the period between February 2005 and November 2008, thereby implicitly covering all the incidents that might have happened during that time.", "110. On the other hand, the criminal court judgment expressly referred to the event of 3 November 2008 in respect of which the applicant had been found guilty in the minor-offence proceedings on 17 November 2008 (see paragraph 13 above). Both the decision issued in the minor-offence proceedings of 17 November 2008 and the judgment issued in the proceedings on indictment of 14 July 2009 refer to the same words spoken by the applicant to his daughter and his former spouse, and to the applicant’s physical assault on the latter. In both decisions, those events are described in almost the same terms, and they clearly refer to the same events of 3 November 2008.", "111. At the same time, the Court notes that the indictment in the criminal proceedings contained a number of additional facts not encompassed by the decision in the impugned set of minor-offence proceedings, namely acts of domestic violence towards the applicant’s younger daughter Z.G. and his son H.G., as well as, most notably, that the applicant’s violent behaviour occurred over a longer period of time (see paragraph 23 above). The proceedings on indictment therefore concerned a criminal offence of domestic violence as defined in Article 215a of the Criminal Code (see paragraph 69 above). In fact, the criminal conviction enumerated several examples of the applicant’s violent behaviour towards his family members and expressly stated that such conduct culminated in the incident of 3 November 2008 (see paragraph 33 above). It transpires that the inclusion of the incident of 3 November 2008 served to show only one of the instances – notably, the most violent one – of the applicant’s reprehensible behaviour which had persisted over a period of some three years and had caused his family members fear, anxiety and risk for their life (see paragraph 33 above). In other words, the domestic courts sought to show that the applicant’s conduct, which had been sanctioned on a number of occasions in minor-offence proceedings, eventually reached the threshold of seriousness so as to be considered and punished under criminal law.", "112. The Court notes that the facts for which the applicant had already been convicted in the two impugned sets of minor-offence proceedings formed an integral part of the subsequent proceedings on indictment. The Court thus accepts that the facts in the subsequent criminal proceedings had in part been identical to the facts in the two sets of minor-offence proceedings complained of. In view of this, any possible arbitrary treatment by the judicial system in breach of the ne bis in idem principle in those proceedings must be eliminated. The Court will therefore proceed to examine whether there had been a duplication ( bis ) of the proceedings in breach of Article 4 of Protocol No. 7.", "(c) Whether there was duplication of proceedings ( bis )", "113. As the Grand Chamber explained in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 130, 15 November 2016), Article 4 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected (ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include:", "– whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved;", "– whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem );", "– whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any additional disadvantages resulting from duplication of proceedings and in particular duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of the facts in one set of proceedings is replicated in the other;", "– and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 131-32).", "114. At the outset the Court reiterates that the States are under a positive obligation under Articles 3 and 8 of the Convention to provide and maintain an adequate legal framework affording protection against acts of domestic violence (see Ž.B. v. Croatia, no. 47666/13, §§ 47 and 49, 11 July 2017). With regard to the adequacy of the legal framework for the protection from domestic violence, the Court notes that there is a common understanding in the relevant international materials that comprehensive legal and other measures are necessary to provide victims of domestic violence with effective protection (see, for example, paragraph 71 above). These measures include, in particular, the criminalisation of acts of violence within the family by providing effective, proportionate and dissuasive sanctions (ibid., § 51).", "115. The Court further notes that the Contracting States have different approaches to the criminalisation of domestic violence in their legal systems. It has already held that the legislative solutions provided for under the Criminal Code and the Minor Offences Act applicable at the relevant time in Croatia did not appear to be contrary to the relevant international standards (see Ž.B., cited above, §§ 38-39 and 56). The Court further reiterates that it was for the domestic authorities to assess the findings of fact and to decide, in accordance with the domestic law as interpreted by the national courts, how the applicant’s conduct ought to be classified and prosecuted (see Rohlena v. the Czech Republic, [GC], no. 59552/08, § 55, ECHR 2015).", "116. In that connection the Court observes that domestic violence is rarely a one-off incident; it usually encompasses cumulative and interlinked physical, psychological, sexual, emotional, verbal and financial abuse of a close family member or partner transcending circumstances of an individual case (see Volodina v. Russia, no. 41261/17, § 71, 9 July 2019). The recurrence of successive episodes of violence within personal relationships or closed circuits represents the particular context and dynamics of domestic violence (see ibid., § 86; and Kurt v. Austria [GC], no. 62903/15, § 164, 15 June 2021). Thus the Court has already recognised that domestic violence could be understood as a particular form of a continuous offence characterised by an ongoing pattern of behaviour (see Rohlena, cited above, § 72; and Valiulienė v. Lithuania, no. 33234/07, § 68, 26 March 2013) in which each individual incident forms a building block of a wider pattern.", "117. In view of the above, the Court notes that the Croatian legislature at the material time opted to regulate the socially undesirable conduct of violent behaviour towards family members as an integrated dual process. One single act of domestic violence, which did not amount to some other criminal offence punishable under the Criminal Code, was to be sanctioned as a minor offence of domestic violence. Such a minor offence was predominantly incident-focused and covered a wider range of behaviours outside the boundaries of traditional criminal law. Where there was a pattern of such behaviour, the Criminal Code at the material time provided an additional option of bringing charges for the criminal offence of domestic violence as defined in Article 215a of the Criminal Code. The Supreme Court of Croatia has interpreted Article 215a of the Criminal Code, as in force at the material time, in similar circumstances to the present case, as a continuous offence seeking to address repeated and continuous behaviour in relationships (see paragraph 69 above; see also Rohlena, cited above, § 72).", "118. The Court notes that the purpose of the minor-offence proceedings was to provide a prompt reaction to a particular incident of domestic violence that in itself did not amount to any criminal offence under the Criminal Code in order to timely and effectively prevent further escalation of violence within the family and to protect the victim. This is what has been done in the applicant’s case on a number of separate occasions (see paragraphs 6, 7, 8, 9 and 13 above). Once the applicant’s unlawful behaviour reached a certain level of severity, the proceedings on indictment were initiated against him, aimed at addressing an ongoing situation of violence in a comprehensive manner (see, mutatis mutandis, A. v. Croatia, no. 55164/08, § 76, 14 October 2010). The individual incidents sanctioned in two sets of minor-offence proceedings complained of, taken together with other incidents, demonstrated a pattern of behaviour and contributed to the assessment of the seriousness of the applicant’s criminal conduct and only in their entirety did they reflect the cumulative impact on his victims. In these circumstances the Court has no cause to call into question the reasons for such partial duplication of the proceedings, which pursued the general interest of promptly and adequately reacting to domestic violence, that has particularly damaging effects on the victim, the family and society as a whole by gradually intensifying the State’s response. The Court notes that such dual proceedings represented complementary response to socially offensive conducts of domestic violence (compare and contrast Nodet v. France, no. 47342/14, § 48, 6 June 2019).", "119. The Court would further stress that duplication of proceedings and penalties may be allowed only under conditions provided for and exhaustively defined by clear and precise rules allowing individuals to predict which acts or omissions were liable to be subject to such a duplication of proceedings and penalties, thereby ensuring that the right guaranteed by Article 4 of Protocol No. 7 is not called into question as such and legal certainty is preserved. As regards the question of whether duality of the proceedings had been foreseeable for the applicant, the Court notes that, having behaved violently towards close family members on a number of occasions, the applicant should have been aware that his conduct could have entailed consequences such as the institution of minor-offence proceedings for a particular individual incident under the Protection against Domestic Violence Act and criminal proceedings for continuous and repeated behaviour of domestic violence criminalised under the Criminal Code.", "120. As to the manner of conducting the proceedings, the Court observes that the criminal court took note of all the previous minor-offence judgments against the applicant (see paragraph 33 above) and used certain documentary evidence from those proceedings (for example, the same record of examination of blood alcohol dated 4 November 2008; see paragraphs 13 and 33 above). The fact that the criminal court decided again to hear certain witnesses, such as Mi.G. and M.G. at the trial may be regarded as an inherent feature of proceedings on indictment and a requirement safeguarding the rights of the accused under Article 6 of the Convention. The Court therefore concludes that the interaction and coordination between the two courts was adequate and that the two sets of proceedings formed a coherent whole. (see, a contrario, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 65-74, 30 April 2015, where the applicants had first been acquitted in criminal proceedings, and later on received severe administrative fines for the same conduct). Consequently, the applicant has not suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary.", "121. As regards the sanctions imposed, the Court firstly notes that each of the applicant’s minor-offence convictions took into account the penalty imposed on him in the previous minor-offence proceedings (see paragraphs 7, 9 and 13 above). Subsequently, the criminal court expressly acknowledged that the applicant had already been punished in five sets of minor offence proceedings. It also deducted from his sentence the period which the applicant had spent in detention on the basis of the two minor ‑ offence convictions complained of, dated 10 January 2008 and 17 November 2008 (see paragraph 13 above). Consequently the domestic courts applied the principle of deduction and ensured that the overall amount of penalties imposed on the applicant was proportionate to the seriousness of the offence concerned (compare A and B, cited above, § 144; and contrast Glantz v. Finland, no. 37394/11, § 61, 20 May 2014, and Nykänen v. Finland, no. 11828/11, § 51, 20 May 2014). It cannot therefore be said that the applicant was made to bear an excessive burden (see the relevant criteria set out in A and B v. Norway, cited at paragraph 113 above).", "122. Finally, turning to the connection in time between the various sets of proceedings, the Court notes that the time element in the specific context of domestic violence bearing in mind its specific dynamics (see paragraph 116 above) takes on a particular meaning. What is important in this context is for the domestic criminal-law system to effectively deal with instances of domestic violence, individually and in their aggregate, by producing adequate deterrent effects capable of ensuring the effective prevention of unlawful acts (see, for example, Bălşan v. Romania, no. 49645/09, §§ 71 and 87, 23 May 2017; see also paragraph 71 above). In the present case, as already stated, the authorities intervened, when informed, each time there had been an isolated incident of domestic violence in the family in order to provide immediate relief to its victims (see paragraphs 6, 7, 8, 9 and 13 above). After a number of incidents occurring relatively close together in time, namely over a period of some three years, reached a certain degree of severity and “culminated” (as the domestic criminal court stated; see paragraph 33 above) in the event of 3 November 2008, the authorities initiated the last set of minor-offence proceedings, and, about a month thereafter, the proceedings on indictment for the continuous offence of domestic violence under Article 215a of the Criminal Code (see paragraphs 11 and 17 above, see also Rohlena, cited above, §§ 20, 33, 61 and 72). In fact, the criminal investigation started on 3 December 2009, after the Zagreb Minor Offence Court had found the applicant guilty of domestic violence in respect of the last incident (see paragraph 13 above) and he was indicted on 26 January 2009, two days before the judgment in the minor offence proceedings had become final (see paragraphs 17 and 23 above). Any disadvantage that might have ensued for the applicant from conducting these two proceedings in parallel for such a short period of time was thus negligible. The criminal proceedings thereafter continued for eight months at first instance and another two and half years on appeal and before the Constitutional Court. Thus, the Court is satisfied that the various proceedings were sufficiently connected in time so that the subsequent institution of criminal proceedings could not be seen as abusive (see, mutatis mutandis, A and B v. Norway, cited above, § 151; and contrast Johannesson and Others v. Iceland, no. 22007/11, § 54, 18 May 2017; and Kapetanios, cited above, § 67).", "123. In conclusion, in the Court’s opinion, the aims of punishment, whereby different aspects of the same conduct are addressed, ought to be considered as a whole and have in the present case been realised through two foreseeable complementary types of proceedings, which were sufficiently connected in substance and in time, as required by the Court’s case-law, to be considered to form part of an integral scheme of sanctions under Croatian law for offences of domestic violence. There was an adequate level of interaction between the courts in those proceedings, and the punishments imposed, taken together, did not make the applicant bear an excessive burden, but were proportionate to the seriousness of the offence. In view of the foregoing, the Court finds no abuse of the State’s right to impose a punishment ( jus puniendi ), nor can it conclude that the applicant suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties when criminal proceedings for a continuous offence of domestic violence were conducted following five previous convictions in the minor-offence proceedings for individual acts which formed an integral part of the pattern of the applicant’s behaviour (see, a contrario, Kapetanios and Others, cited above, §§ 65-74; see also the relevant CJEU case-law cited in paragraph 70 above). Rather, those proceedings and penalties formed a coherent and proportionate whole, which enabled punishing both the individual acts committed by the applicant and his pattern of behaviour in an effective, proportionate and dissuasive manner (see, mutatis mutandis, A and B v. Norway, cited above, §§ 112, 130 and 147; and Bajčić, cited above, § 46).", "124. It follows that there has been no violation of Article 4 of Protocol No. 7 to the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "125. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "126. The claimed 856,000 Croatian kunas (HRK; approximately 114,130 euros (EUR)) in respect of pecuniary damage on account of his loss of salary during the period when he had been detained and serving his prison term, loss of profit and not maintaining his house. He also claimed compensation for non-pecuniary damage in the amount of HRK 700,000 (approximately EUR 93,300).", "127. The Government deemed these claims excessive, unfounded and unsubstantiated.", "128. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it finds that the applicants must have suffered non-pecuniary damage as a result of the violation of Article 6 §§ 1 and 3 (c) of the Convention found, which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards him EUR 1,500 under this head, plus any tax that may be chargeable to him.", "Costs and expenses", "129. The applicant also claimed HRK 10,000 (approximately EUR 1,360) in respect of costs and expenses incurred before the Court.", "130. The Government deemed that claim excessive, unfounded and unsubstantiated.", "131. The Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court in that he did not submit itemised particulars of his claim for costs and expenses or any relevant supporting documents, even though he was invited to do so. In these circumstances, the Court makes no award under this head (Rule 60 § 3).", "Default interest", "132. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1976 and lives in Panevėžys.", "7. The applicant stated that between 3 January and 4 February 2001, she had been beaten up on five occasions by her live-in partner, J.H.L., a Belgian citizen. She submitted that she had been strangled, pulled by the hair, hit in the face and kicked in the back and in other parts of her body.", "8. The applicant’s injuries were documented by forensic expert examinations, the results of which were as follows:", "(i) report of 5 January 2001 concerning injuries sustained on 3 and 4 January: hypodermic bruising on the left hip and thigh;", "(ii) report of 8 January concerning injuries sustained on 7 January: a scrape on the right cheek and brachium;", "(iii) report of 30 January concerning injuries sustained on 29 January: bruising on the right eye and cheek, the left temple, the shin, and a scrape on the left shin;", "(iv) report of 7 February concerning injuries sustained on 4 February: hypodermic bruising on the face.", "Each time the experts concluded that the bodily injuries sustained were minor and had not caused any short-term health problems ( lengvi kūno sužalojimai, nesukėlę trumpalaikio sveikatos sutrikimo ).", "A. Pre-trial investigation into the alleged injuries", "9. On 14 February 2001 the applicant lodged an application with the Panevėžys City District Court to bring a private prosecution. She stated that J.H.L. had beaten her up on five occasions and gave the following detailed statement:", "“I have lived with J.H.L. since 1996. Recently he started to harass and beat me.", "On 3 January 2001 at around 8 p.m., I came home and found J.H.L. drunk; he was pulling up floor tiles. I complained about how he was behaving and he started to pull at my clothes. I crouched down and he then kicked me in the ribs and in the buttocks and tried to strangle me and pull my hair. When he had calmed down, I went into another room.", "The next morning, on 4 January 2001 at around 9 a.m., J.H.L. stated that if I did not want to live with him any more and did not behave as he wished, he would move everything out of the apartment and would then make me pay for what I had done. He got angry when I suggested that we talk things through and he started kicking and hitting me again. He hit me a few times in various parts of my body. After that, he left home and I went to my friend G.V.’s apartment. She saw that I had been beaten up and I told her everything that had happened.", "On 7 January 2001 at around 5.30 p.m., I came home and found J.H.L. drunk again. He started to reproach me for seeking medical expert attention for my injuries and told me that he wanted me to leave. He then called the police. Later, after the police officers had left the apartment without having taken any action (they asked me to come in to the police station the following day), J.H.L. got mad and pushed me out of the apartment into the stairwell and hit me in the face. Hearing a noise, B. and J., neighbours from apartments nos. 51 and 52, came out of their apartments to the landing and saw what was happening.", "On 29 January 2001 at around 6.30 p.m., I came back from school and J.H.L. got mad about our relationship falling apart (I wasn’t staying at the apartment as I was trying to avoid any confrontation) and he started to beat me again: he kicked me in the face, waist, and other parts of my body and hit me in the head. When he finally stopped beating me, I went to my friend J.V.’s apartment. She lives in the same building, at apartment no. 34.", "On 4 February 2001 at around 8 p.m., while I was at home, a drunken J.H.L. got mad because I had told him not to waste electricity (I pay for the electricity as the apartment is in my name, as is the contract with the electricity supplier) and hit me in the face. After that, he blocked the door to stop me from leaving. Because I was so afraid of being beaten up even more I had to flee the apartment by climbing through the window. This must have been seen (or at least heard) by an unknown girl who had been visiting J.H.L. After fleeing the apartment I ran to my neighbour R.’s apartment at no. 48, from where I called the police. My neighbour from apartment no. 47 saw that I had been beaten up. I do not know her last name.", "I sought medical attention from forensic experts about the injuries, which were classed as being minor bodily injuries.”", "10. In her application to the court, the applicant alleged that the repeated acts of violence against her had constituted the offence of causing minor bodily harm under Article 116 § 3 of the Criminal Code in force at the material time (“the old Criminal Code”). She requested that the court open a criminal case against J.H.L. and that he be charged and punished under the above-mentioned provision of the Code. The applicant provided a list containing the names and addresses of five neighbours she wanted to call to the court as witnesses. She also requested the court to provide her with evidence from the Panevėžys city police about the violence she had sustained. Lastly, the applicant provided medical reports about her injuries.", "11. In May 2001 the Panevėžys city police informed the applicant that “in reply to your complaint of 9 March 2001 we inform you that in the matter of your personal disagreements with J.H.L., we suggest that you apply to the Panevėžys City District Court for proceedings to be brought by way of a private prosecution”.", "12. When questioned about her conflicts with J.H.L. on 8 May 2001, the applicant told a criminal investigator that she had lived with J.H.L. for three years in Belgium from 1996 to 1999. In 2000 she had returned to Lithuania and J.H.L. would visit her there. In 2000 she had sold him a half share of her apartment at 22-46 Statybininkų Street in Panevėžys. In early 2001, when she no longer wished to maintain her relationship with J.H.L., he had started insulting her and threatened to “rearrange her face” and injure her. The threats had continued on a regular basis. The applicant admitted to the court that she had not reported those threats to the police, but that this had been because the police officers would have told her to bring civil proceedings against J.H.L. She also made it clear that she had taken the threats seriously.", "13. On 21 January 2002 a judge of the Panevėžys City District Court forwarded the applicant’s complaint to the Panevėžys city public prosecutor, ordering him to start his own pre-trial criminal investigation so that the examination of the case would not be delayed. To explain the request for a public prosecution to be carried out, the judge noted that J.H.L. had failed to appear in court on a number of occasions.", "14. In the applicant’s reply to the Government’s observations on the admissibility and merits of the case, she provided the Court with a copy of an e-mail dated 12 June 2001 (in Dutch) sent by a certain Y.L., who appears to be the son of J.H.L., to what appears to be the applicant’s address. The e-mail reads as follows:", "“(...) I will come for you and then we will see what will happen. One thing I can tell you [is that] you can forget your life and your [boy]friend’s life, I can promise you that. Order yourself a wheelchair already. My friends and I will grab you and you will see what real bandits are like, that you have never seen in Lithuania. Father did everything for you and now look at you. Do you think we can just leave it at that? You are a rotten street whore”.", "15. On 1 February 2002 the pre-trial investigator decided to place J.H.L. under investigation on suspicion of the offence of systematically causing minor bodily harm to the applicant (Article 116 § 3 of the old Criminal Code).", "16. According to a report of 11 December 2002 produced by D.D., a police investigator, police officers had been called to the applicant and J.H.L’s apartment twice, namely on 7 January and 4 February 2001. The applicant had told the police that J.H.L. had been verbally abusive to her and had tried to throw her out of the apartment. J.H.L. had been cautioned by the police on both occasions. The investigator noted that on those two occasions the applicant had not mentioned anything about her injuries to the police. The applicant had written to the police on 15 January 2001 that J.H.L. had cursed her and had not let her into the apartment, but she had not mentioned physical injuries.", "17. In 2002 J.H.L. was charged with having deliberately and systematically injured the applicant, resulting in her having sustained minor bodily harm. The investigation was suspended and reopened numerous times because J.H.L. had failed to appear at court and had absconded. Each time the investigation was suspended, the applicant lodged an appeal.", "18. In December 2002 the police investigator D.D. deemed that there was insufficient evidence to prove that J.H.L. was responsible for having beaten the applicant. On the basis of the applicant’s appeal, the prosecutor quashed that decision on the ground that the pre-trial investigation had not been thorough enough.", "19. On 21 January 2003 the police investigator D.D. again decided to discontinue the pre-trial investigation, considering that there was no conclusive evidence that J.H.L. had perpetrated the crimes against the applicant and that that all the means to discover the truth had already been exhausted. The investigator noted that in the one-month period during which the violence had allegedly taken place, the police had only been called to the apartment twice to sort out “family quarrels”, and that in her statements to the police the applicant had not made any complaints of having been physically attacked by J.H.L. She had only complained that she had been shouted at by him and that he had refused to let her enter the apartment which they both shared as co-owners. The investigator did not rule out the possibility that the applicant had initiated the criminal investigation because there had been unresolved financial disputes between them.", "The investigator’s decision was upheld by a public prosecutor on 10 February 2003.", "The applicant appealed against those two decisions and on 9 February 2004 a higher prosecutor reopened the proceedings on the grounds that “the criminal investigation had not been [sufficiently] thorough”.", "20. By a decision of 17 March 2004, the Panevėžys prosecutor’s office granted the applicant’s request to remove ( nušalinti ) the criminal investigator D.D. from the case because of concerns as to her impartiality. The prosecutor also noted that the criminal investigation had been delayed ( tyrimas buvo vilkinamas ).", "21. On 10 June 2005 the prosecutor held that during the pre-trial investigation “it had been established” that the applicant had been strangled, hit and kicked on five separate occasions between January and February 2001 in the apartment situated at 22-46 Statybininkų Street in Panevėžys. As a result, she had sustained minor bodily harm. The prosecutor went on to say that “J.H.L. was suspected of having perpetrated the criminal acts in question”. Nevertheless, he decided to discontinue the pre-trial investigation on the grounds that the law had changed in 2003 and a prosecution in respect of minor bodily harm should have been brought by the victim in a private capacity. The prosecutor also considered there was no reason for a public prosecution, as the case did not fall within the ambit of Article 409 of the new Code of Criminal Procedure (see paragraph 36 below), that is to say, the prosecutor did not consider the crime to be of “public importance”. It was therefore up to the applicant to proceed accordingly and to apply to a court to bring a private prosecution against J.H.L.", "22. The applicant appealed, arguing that she had already addressed the law-enforcement authorities about her injuries four years previously and had initiated a private prosecution at that time. However, the judge had transferred her complaint to a public prosecutor, who had initiated the pre­trial investigation. The investigation had continued after 1 May 2003, when the new Code of Criminal Procedure had entered into force. Those circumstances had led her to believe that the charges in the case were being pursued by the public prosecutor. Given that the public prosecutor had waited for two years before informing the applicant that he would not be prosecuting J.H.L., his position was difficult to understand. As far as the applicant was concerned, such a decision was in breach of the principle that criminal offences should be investigated promptly and that the perpetrator should receive a fair punishment. If the prosecutor deemed that private prosecution was the procedure which the applicant’s case should follow, then he should have informed the applicant immediately after the reform of the legislation on 1 May 2003. As a result the criminal proceedings had clearly been delayed, to the applicant’s detriment, since the guilty party had remained unpunished up until that day and the applicant had been unable to bring him to justice. Lastly, she submitted that the end of the limitation period for prosecuting J.H.L. was approaching (see paragraph 34 below).", "23. By a decision of 19 July 2005, the deputy chief prosecutor at the Panevėžys City District Prosecutor’s Office dismissed the applicant’s appeal.", "24. The applicant lodged a further appeal with the Panevėžys City District Court, again reiterating that the statutory time-limit for charging J.H.L. was approaching. If she were forced to start criminal proceedings all over again, the judgment would be delayed.", "25. On 15 September 2005 the Panevėžys City District Court upheld the prosecutor’s decision, dismissing the applicant’s appeal. The court noted that, under Article 409 of the new Code of Criminal Procedure, a prosecutor had a right, but not an obligation, to initiate a pre-trial investigation. There was no information in the case file to indicate that the case was of public interest or that the victim could not protect her own rights by means of a private prosecution. The ruling was final and not amenable to appeal.", "B. The private prosecution proceedings", "26. On 28 September 2005 the applicant lodged a complaint with the Panevėžys City District Court, describing the five episodes of violence that had taken place between 3 January and 4 February 2001, and requesting that J.H.L. be privately prosecuted for causing minor bodily harm. She did not mention any other instances of ill-treatment, either physical or psychological.", "27. On the basis of forensic reports and the applicant’s testimony at the hearing, the Panevėžys City District Court considered that J.H.L.’s acts corresponded to the offence of causing minor bodily harm under Article 140 § 1 of the new Criminal Code. The court considered that the limitation period for the prosecution of those offences was one-year. Accordingly, by a ruling of 15 December 2005 the court refused the applicant’s request on the ground that the prosecution had become time­barred.", "28. The applicant appealed, arguing that her attacker would remain unpunished, which would breach her rights under the Convention, although she did not specify any particular provision thereof.", "29. On 4 January 2006 the Panevėžys Regional Court reinterpreted the criminal procedure rules relating to the statutory limitation periods for prosecuting specific offences, found the limitation period to be five years, and therefore upheld the applicant’s appeal.", "30. On 21 February 2006 the District Court again refused to open a pre­trial investigation on the basis of a private prosecution because the last date on which the applicant had been injured by J.H.L. was 4 February 2001, which meant that the five-year statutory limitation period for prosecution had been exceeded.", "31. The applicant appealed, emphasising that although she had lodged a criminal complaint with the courts for J.H.L.’s prosecution immediately after she had been beaten up, the criminal proceedings had been pending for years on account of mistakes and inaction on the part of the prosecutors and courts. As a result, her attacker had not been prosecuted by the public prosecutor’s office of its own motion and her attempts to pursue her criminal complaint against him had been futile.", "32. By a final ruling of 8 February 2007, the Panevėžys Regional Court dismissed the applicant’s appeal, finding that any kind of prosecution had become time-barred. The appellate court noted that the applicant had initiated private prosecution proceedings back in 2001. In 2002 the court had transferred the case to a public prosecutor to pursue an investigation into the charges being brought against J.H.L. of his own motion. As a result of the legislative changes in 2003, it had not been possible for the public prosecutor to carry on with the investigation. The Panevėžys Regional Court also observed that on 28 September 2005 the applicant had brought proceedings by means of a private prosecution regarding the same events. However, because of the five-year limitation period, the prosecution had no longer been possible." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "33. Article 140 § 1 of the Criminal Code, in force from 1 May 2003 (“the new Criminal Code”), establishes criminal liability for causing minor bodily harm. The crime is punishable by community service or by a deprivation of liberty for up to one year.", "Before 1 May 2003, the offence of intentionally causing minor bodily harm fell under Article 116 § 1 of the old Criminal Code. If the offence had been committed systematically, it was punishable by deprivation of liberty for up to three years (Article 116 § 3).", "34. Article 95 § 1 of the Criminal Code in force at the material time provided that a prosecution could not be pursued if a minor ( nesunkus ) intentional crime had been committed more than five years earlier.", "35. Following the legislative changes of 1 May 2003, Article 407 of the new Code of Criminal Procedure provides that criminal proceedings for offences such as causing minor bodily harm may only be opened upon a complaint by the victim. If the victim lodges such a complaint, he or she becomes the private prosecutor (Article 408 § 1).", "36. Under Article 409 § 1 of the new Code, the public prosecutor has a right to open a criminal investigation into criminal offences normally investigated by means of private prosecution, such as the offence of causing minor bodily harm, if the crime is of public importance (that is, if it is in the public interest that the crime be solved) or if there are important reasons as to why the victim is unable to protect his or her rights.", "37. On 26 May 2011 the Seimas of the Republic of Lithuania adopted the Law on Protection Against Domestic Violence ( Apsaugos nuo smurto artimoje aplinkoje įstatymas ), which entered into force on 15 December 2011. The law states that its aim is to protect persons against domestic violence. The damage such violence causes to society means that it is in the public interest to respond promptly to threats of domestic violence, to undertake prevention measures, to apply protection measures and to provide appropriate assistance. The law also acknowledges that domestic violence is a violation of an individual’s human rights and freedoms (Article 1). As regards the measures to be taken by the police, the law provides that when notified of an incident of domestic violence, on arrival at the scene or on witnessing the incident, police officers are to make a domestic violence incident report and initiate a pre-trial investigation. It is not the responsibility of the victim to lodge a complaint (Article 7 § 1).", "38. The Civil Code provides that where a person sustains bodily harm, that is, he or she is injured or his or her health is damaged in any other way, the person liable for the damage caused must compensate the aggrieved person for all the damage suffered, including any non-pecuniary damage (Article 6.283).", "III. RELEVANT INTERNATIONAL LAW AND MATERIALS", "39. In 1979 the United Nations General Assembly adopted the Convention on Elimination of All Forms of Discrimination against Women (CEDAW). Lithuania ratified the Convention on 18 January 1994. It ratified the Optional Protocol to the CEDAW on 5 August 2004. On 8 January 2008, the CEDAW Committee issued concluding observations on the State. The Committee noted the various efforts undertaken by Lithuania to combat violence against women, including domestic violence, including the adoption of the National Strategy for Combating Violence against Women, a number of amendments to the Criminal Code, the establishment of a network of crisis centres providing support to victims of violence and the extension of a specialized assistance by telephone for battered women countrywide to a continuous (24 hours a day) service in 2008. However, it remained concerned at the high prevalence of violence against women in Lithuania, in particular domestic violence, and at the absence of a specific law on domestic violence. The Committee was also concerned that this may lead to such violence being considered a private matter, in which case the consequences of the relationship between the victim and the perpetrator are not fully understood by police and health officers, the relevant authorities and society at large. The Committee thus urged Lithuania to ensure that comprehensive legal and other measures are in place to address all forms of violence against women, including domestic violence. It also recommended that Lithuania elaborate and introduce without delay a specific law on domestic violence against women that provides for redress and protection, and set a time frame for its adoption (paragraphs 74 and 75 of the Concluding Observations).", "40. A nation-wide study of 1,010 women conducted in 1999 found that 42 percent of married or partnered Lithuanian women aged 18-74 have been physically assaulted or threatened with physical assault by their current partners in their lifetime (UN General Assembly, In-depth study on all forms of violence against women: report of the Secretary-General, 6 July 2006). Similarly, statistics from a 2000 survey by the United Nations Entity for Gender Equality and the Empowerment of Women indicated that in their lifetime 32.7% of women in Lithuania had experienced physical violence at the hands of their intimate partner.", "41. On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence. To this day he Convention has been signed by twenty eight Council of Europe Member States and ratified by three. The Convention has not yet entered into force, nor has it been signed by Lithuania. One of the purposes of the Convention is to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "42. Relying on Articles 6 and 13 of the Convention, the applicant complained that the domestic authorities had failed to investigate the repeated acts of domestic violence against her and to hold the perpetrator accountable. She also complained that the criminal proceedings against him had been excessively lengthy.", "43. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the above complaints fall to be examined solely under Articles 3 and 8 of the Convention, which read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private ... life ...”", "A. The parties’ submissions", "1. The applicant", "44. In her application to the Court, the applicant complained that the domestic authorities’ compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case as regards her complaints of attacks on her physical integrity, were defective to the point of constituting a violation of her rights under Articles 6 and 13 of the Convention.", "45. Once the application had been communicated to the Government, the applicant further elaborated on her claims, claiming a violation of Articles 3 and 8 of the Convention.", "46. The applicant argued that her complaints fell to be examined under Article 3 of the Convention, submitting that the ill-treatment she had been subjected to attained the minimum level of severity required by the Court’s case-law ( Opuz v. Turkey, no. 33401/02, § 161, ECHR 2009). On this point, she maintained that the actual physical force which she had been subjected to on multiple occasions had not been moderate. She had been kicked in the face, buttocks and other parts of the body, grabbed by the throat, pulled by the hair, punched in the face and hit on the head. The applicant saw those physical injuries as serious enough not to be regarded as being “of a merely trivial in nature”, as suggested by the Government (see paragraph 55 below). Furthermore, the mere fact that the applicant had not suffered long­lasting or permanent injuries did not mean that the ill-treatment had failed to reach the level of severity to fall within the scope of Article 3, because in Tyrer v. the United Kingdom (25 April 1978, § 33, Series A no. 26) the Court had found a violation of Article 3, even though “the applicant did not suffer any severe or long lasting physical effects”.", "47. Whilst noting the Government’s attempts to dispute the accuracy of the medical certificates provided as evidence of her injuries, the applicant maintained that her case was different from that of Bevacqua and S. v. Bulgaria (no. 71127/01, § 77, 12 June 2008), in which the Court had held that certificates issued six days after the incident had less evidential value. In the instant case, however, the applicant had been examined between one and three days after each incident.", "48. As far as the applicant was concerned, contrary to the Government’s perception of events, the ill-treatment she was subjected to had not just consisted of attacks on her physical integrity. It also comprised mental suffering, humiliation, fear and anguish, constant terror, threats and verbal abuse. On this issue the applicant submitted that at one point she had also been threatened by J.H.L. that he would “dispose of” her if she refused to live with him or burn the apartment down with her in it. Moreover, the fact that ill-treatment amounting to torture, inhuman or degrading treatment did not extend only to acts causing physical pain or injury, but included acts that cause mental suffering, had also been recognised by the United Nations treaties and the case-law of the International Criminal Tribunals.", "49. As concerns the duration of her ill-treatment, the applicant maintained that, contrary to what had been suggested by the Government (see paragraph 58 below), the five incidents of violence could not be perceived as “separate episodes”. She contended that the incidents, which had occurred within a one-month period from 3 January to 4 February 2001, had constituted a continuing situation. She also submitted that the ill­treatment by J.H.L. had not consisted of those five episodes alone and that his violent behaviour, both physical and psychological, had continued until the end of March 2001. On this point the applicant maintained that, after court proceedings had already commenced at the beginning of March 2001, she had been attacked again. She had reported the incident to the Panevėžys police on 9 March, and they had suggested that she should apply to the court regarding any “personal disagreements”. Moreover, on 12 June 2001 J.H.L. had sent the applicant an e-mail in which he had threatened to put her in a wheelchair. The applicant submitted that there had been further correspondence of a similar tone.", "50. Turning to the legal remedies providing protection against domestic violence in Lithuania, the applicant was also critical of the Government’s argument that she “could have used civil-law mechanisms” against her perpetrator, a possibility which the applicant saw as only theoretical. The applicant believed that the latter argument by the Government was nothing less than an attempt to diminish the State’s responsibility for actual inaction in the sphere of domestic violence by suggesting alternative procedures that were only theoretically possible mechanisms for protecting victims’ rights. If the State authorities failed to maintain and apply in practice an adequate legal framework and criminal-law mechanisms affording protection against acts of violence, victims could not be held responsible for not looking to other means of punishing perpetrators and of ensuring just satisfaction. The responsibility to ensure accountability and safeguards against impunity lay with the State, not with the victim. Likewise, the fact that alternative procedures existed which could have been carried out against the perpetrator did not in any way eliminate the positive obligation on the State to investigate, prosecute and punish him in accordance with the Code of Criminal Procedure.", "51. The applicant further considered that she, as a woman, had been a victim of gender-based violence, thus falling within the group of “vulnerable individuals” entitled to a higher degree of State protection. She submitted (without naming the source of such statistics) that in Lithuania, women were the victims most frequently subjected to domestic violence, that is to say in more than 95% of all domestic violence incidents. Moreover, around twenty women were killed every year as a result of domestic violence; in 2006, 63.3% of women admitted having been subjected to domestic violence by their partners or husbands at least once; and more than 40,000 telephone calls to the police were registered each year regarding complaints of domestic violence. The applicant thus maintained that Lithuania remained among the “leading” countries in Europe as far as the number of gender-based violence incidents was concerned. Accordingly, given the particular vulnerability of women affected by domestic violence, a heightened degree of vigilance was required by the State.", "52. For the applicant, her case clearly illustrated how domestic violence was often tolerated by the State authorities, which allowed perpetrators to enjoy impunity. On this point she argued that despite her application to the Panevėžys City District Court in January 2001 for criminal proceedings to be initiated against J.H.L., the court had remained inactive for more than a year. In January 2002, that court had forwarded the applicant’s criminal complaint to the Panevėžys district prosecutor, ordering him to pursue the case by way of a public prosecution. In June 2005, the prosecutor had taken the decision to discontinue the investigation, based on legislative amendments enacted two years prior to his decision. Finally, the case had been dismissed as time-barred. The applicant thus considered that the way the proceedings had been handled was a clear illustration that the State had failed to fulfil its positive obligations under Article 3 of the Convention. She maintained that a large number of women today remained affected by the failure of the State authorities to take domestic violence seriously as a real threat to life and by their unwillingness to prosecute and punish the perpetrators of domestic violence appropriately.", "53. In the alternative, the applicant argued that the manner in which the criminal-law mechanisms had been implemented in her case were defective to the point of constituting a violation of the State’s positive obligations under Article 8 of the Convention.", "2. The Government", "54. At the outset the Government maintained that the treatment to which the applicant had been subjected by J.H.L. had not attained the minimum level of severity to fall within the scope of Article 3 of the Convention. Accordingly, any positive obligations of the State with regard to the applicant’s complaints were to be dealt under Article 8 of the Convention. Their argument was as follows.", "55. As regards the severity of the injuries sustained by the applicant and the effects of the treatment to which she had been subjected, the Government noted that, as established by the forensic experts, the applicant had sustained minor bodily harm that had not caused short-term health problems. Furthermore, in contrast to the facts in A. v. the United Kingdom (23 September 1998, § 21, Reports of Judgments and Decisions 1998-VI), the applicant had not been beaten with considerable force and the treatment inflicted had not resulted in a permanent injury. Accordingly, for the Government, “it could be said that the injuries sustained by the applicant had been of a merely trivial nature”.", "56. The Government also appeared to have doubts about the evidential value of expert reports confirming the applicant’s injuries, implying that the applicant’s case was similar to that of Bevacqua and S. (cited above, § 77), in that the medical certificates in the instant case had been issued several days after the incidents. They also criticised the applicant’s statement that at the beginning of March 2001 she had been repeatedly attacked by J.H.L., observing that it was not clear whether she had indeed been subjected to violence on that occasion and, if so, to what extent. The same could be noted about the correspondence from J.H.L. she had submitted as evidence, which had not been mentioned in her complaints lodged with the domestic authorities.", "57. The Government observed that, as had also been noted by the criminal investigator in her decision of 21 January 2003, within one month of the alleged violence occurring the police had been called only twice, but the applicant had made no allegations of being physically attacked by J.H.L., either in her statements to the police or to the officers who had attended her apartment on those two occasions. She had only complained that J.H.L. had refused to let her enter the apartment which they both shared as co-owners (see paragraph 16 above). However, on four occasions the applicant had taken it upon herself to ask the forensic experts to issue reports about the alleged injuries. In this connection, it had to be observed that, having analysed the evidence, the criminal investigator had had certain doubts concerning the nature of the disagreements between the applicant and J.H.L., and in her decision of 21 January 2003 the investigator had considered that the criminal investigation could have been initiated by the applicant because there existed unresolved financial disputes between her and J.H.L. For the Government, the latter decision by the investigator also revealed inconsistency in the statements given by J.H.L., the applicant and some of the witnesses regarding the alleged acts of violence, such discrepancies being an important aspect when deciding the issue of the applicability of Article 3 of the Convention.", "58. As concerns the duration of the applicant’s ill-treatment, although she maintained that she had been injured on five occasions, she had not reported the first incident to the police. Nor had she mentioned any physical violence when the police were called to the apartment on 7 January or 4 February 2001. Furthermore, it was the Government’s view that after the institution of the court proceedings on 14 February 2001 the applicant had sustained no further injuries at the hands of J.H.L. In any case, the applicant’s complaints were related to five alleged incidents of ill-treatment that had occurred over approximately a month, quite a short period of time. Therefore, contrary to the facts in Beganović v. Croatia (no. 46423/06, § 67, 25 June 2009), and even assuming that the facts provided by the applicant to the Court were wholly indisputable, the alleged ill-treatment was not premeditated and it had not been applied in one continuous stretch, but rather had consisted of “separate episodes of alleged violence”.", "59. The Government also considered that apart from the criminal-law mechanisms, other means or mechanisms responding to the allegedly inflicted ill-treatment could have been explored by the applicant. For instance, she could have used other protective measures available at the relevant time aimed at the provision of assistance to the victims of domestic violence, for example, approaching a women’s crisis centre or a family support centre. Moreover, the applicant also could have used civil-law mechanisms against the alleged perpetrator by bringing a claim for compensation, a remedy which, according to the Government, “might still be available”. The latter remedy was also relevant as regards the allegedly sustained mental suffering that the applicant had also complained about.", "60. Noting that the context of “domestic violence” does not necessarily attract the State’s responsibility under Article 3 of the Convention, the Government maintained that the applicant could not be automatically considered a vulnerable person because of her age – as, for example, children would be – or her gender or social status, contrary to the Court’s judgment in Opuz (cited above). The situation of women in Lithuania could be described as being significantly different from that of women in Turkey, given that the applicant and J.H.L. had shared ownership of an apartment and, moreover, they had been business partners. The applicant thus had not been financially dependent on J.H.L.; she was an educated, independent woman who owned her own property. Eventually their relationship had become discordant and the applicant had entered into a close relationship with another man, her future husband, who had later moved in to live with her.", "61. As concerns the State’s positive obligations under Articles 3 and 8 of the Convention, the Government acknowledged that the investigation of the applicant’s complaints had lasted too long and that this had resulted in the case being dismissed as time-barred. They also admitted that, notwithstanding that there were certain objective reasons why criminal proceedings had been pending, namely international elements and legislative reform, it was regrettable that the case had not been fully and efficiently investigated and the perpetrator of the alleged crime had not been convicted.", "62. Lastly, the Government noted that in the meantime the Law on Protection against Domestic Violence had been enacted in Lithuania. Although they had doubts as to whether the circumstances of the instant case could be regarded as domestic violence, the Government admitted that it might take some time for the legislation to become really efficient in this regard. Nonetheless, it was very important that all acts of domestic violence thereafter were classified as crimes of public importance and investigated under the general public prosecution procedure instead of by private prosecution. Accordingly, the State had thus shown its intention to provide a proper response to the domestic violence cases and to ensure that victims were placed in a more favourable procedural position.", "63. In the light of the foregoing considerations, the Government submitted that the applicant’s claims within the meaning of Article 3 of the Convention were manifestly ill-founded.", "B. The Court’s assessment", "1. Admissibility", "(a) Applicability of Articles 3 and 8 of the Convention to the circumstances of the present case", "64. The Court will first address the Government’s argument that the applicant’s complaints were not covered by Article 3 of the Convention because of the “trivial nature” of the injuries she had sustained.", "65. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Đorđević v. Croatia, no. 41526/10, § 94, ECHR 2012).", "66. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, § 67, Series A no. 280-A; and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007).", "67. Turning to the circumstances of the instant case, the Court first notes the physical violence suffered by the applicant. As confirmed by the forensic experts, as a result of the ill-treatment she had experienced, the applicant sustained hypodermic bruising on the left hip and thigh, a scrape on the right cheek and brachium, bruising on the right eye and cheek, the left temple and the shin, a scrape on the left shin and hypodermic bruising on her face. The Government suggested that at least some of those injuries had not been properly documented. However, the Court does not share this view. Firstly, and contrary to the facts in Bevacqua and S. (cited above, § 77), in the present case the forensic experts saw the applicant between one and three days after each incident (see paragraph 8 above). Secondly, those injuries had been considered to have been “established” by the prosecutor in his decision to close the criminal investigation on 10 June 2005 (see paragraph 21 above). The same conclusion appears to have been supported by the criminal court (see paragraph 27 above). Even though the Government argued that certain inconsistencies had been found in the investigator’s decision of 21 January 2003, the prosecutor subsequently quashed that decision as superficial and the investigation was reopened (see paragraphs 19 and 20 above). That being so, and without being able to rely on the final decision by the Lithuanian courts as to the merits of the applicant’s complaint about her ill-treatment, the Court cannot but conclude that she did sustain the injuries listed above.", "68. The Court further observes that the five incidents of violence occurred within a time frame of one month, in the period between 3 January and 4 February 2001. Although in her submissions to the Court the applicant argued that the ill-treatment had continued after she had instituted criminal proceedings on 14 February 2001, referring in that connection to her complaint to the Panevėžys police on 9 March 2001, the Court cannot find the reply given by the police conclusive, as it does not know the contents of the applicant’s complaint (see paragraph 11 above). Neither can the Court rule on the credibility of the e-mail containing threats to the applicant (see paragraph 14 above), given that the contents of that e-mail were never drawn to the attention of the Lithuanian authorities. In this connection the Court nevertheless notes that in one of her last complaints of impunity, namely her application of 28 September 2005 to bring a private prosecution (see paragraph 26 above), the applicant mentioned the five incidents that took place between January and February 2001. That being so, the Court considers that the five instances of ill-treatment stretched over a period of time. Accordingly, it will examine those acts as a continuing situation, which it finds to be an aggravating circumstance.", "69. Lastly, the Court cannot turn a blind eye to the psychological aspect of the alleged ill-treatment. It observes that the applicant made credible assertions that over a certain period of time she had been exposed to threats to her physical integrity and had actually been harassed or attacked on five occasions. The Court acknowledges that psychological impact is an important aspect of the domestic violence. Moreover, whilst in the circumstances of the present case it is unable to fully share the applicant’s view that she, as a woman, by default fell into the category of vulnerable persons (see, by contrast, Đorđević, cited above, § 91), the Court nonetheless notes that, as it had been acknowledged by the Government, following the enactment of the Law on Protection against Domestic Violence, crimes of such a nature fall into the category of those having public importance.", "70. In the light of the foregoing, the Court considers that the ill-treatment of the applicant, which on five occasions caused her physical injuries, combined with her feelings of fear and helplessness, was sufficiently serious to reach the level of severity under of Article 3 of the Convention and thus raise the Government’s positive obligation under this provision (see Milanović v. Serbia, no. 44614/07, § 87, 14 December 2010).", "(b) Exhaustion of domestic remedies", "71. The Government implied that the applicant had a civil-law avenue as regards her complaints about perpetrators of domestic violence enjoying impunity. The Court notes, however, that the applicant made full use of the remedy provided by criminal procedure. It also considers that what is at the heart of this case is the question of impunity for the acts of domestic violence, which is a matter to be addressed by the criminal courts. On this point the Court also reiterates that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy that addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy that has essentially the same objective is not required (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010 and the case-law cited therein).", "(c) Conclusion", "72. The Court also finds that the complaints under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "Lastly, the Court considers that, since the applicant’s complaint under Article 8 of the Convention is based on the same facts, it must also be declared admissible.", "2. Merits", "73. Once the Court has found that the level of severity of violence inflicted by private individuals attracts protection under Article 3 of the Convention, its case-law is consistent and clear to the effect that this Article requires the implementation of adequate criminal-law mechanisms (see Beganović, cited above, § 69; M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003-XII). However, the scope of the State’s positive obligations might differ between cases where treatment contrary to Article 3 of the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals. The Court observes in the first place that no direct responsibility can be borne by Lithuania under the Convention in respect of the acts of the private individuals in question.", "74. The Court notes, however, that even in the absence of any direct responsibility for the acts of a private individual under Article 3 of the Convention, State responsibility may nevertheless be engaged through the obligation imposed by Article 1 of the Convention. In this connection the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, cited above, § 22).", "75. Furthermore, Article 3 requires States to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions, and this requirement also extends to ill-treatment administered by private individuals. On the other hand, it goes without saying that the obligation on the State under Article 1 of the Convention cannot be interpreted as requiring the State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or that if it is, criminal proceedings should necessarily lead to a particular sanction. In order that a State may be held responsible it must, in the view of the Court, be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, failed to provide practical and effective protection of the rights guaranteed by Article 3 (see Beganović, cited above, § 71).", "76. It must be stated at this juncture that it is not the Court’s task to verify whether the prosecutors and the domestic courts correctly applied domestic criminal law; what is in issue in the present case is not individual criminal-law liability, but the State’s responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007, and Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008).", "77. In this connection, the Court notes that the obligation on the State to bring to justice perpetrators of acts contrary to Article 3 of the Convention serves mainly to ensure that acts of ill-treatment do not remain ignored by the relevant authorities and to provide effective protection against acts of ill­treatment (see Beganović, cited above, § 79).", "78. As regards the criminal-law mechanisms provided by the Lithuanian legal system in connection with the State’s obligations under Article 3 of the Convention, the Court notes at the outset that Article 116 of the old Criminal Code and Article 140 § 1 of the new Criminal Code define causing minor bodily harm as a specific criminal offence. The Court further observes that up to 1 May 2003 such crimes were amenable to investigation by the public prosecutor. After that date, criminal acts causing minor bodily harm are to be prosecuted only upon a complaint by the victim, who in turn becomes the private prosecutor. Even so, a public prosecutor retains the right to open a criminal investigation into acts causing minor bodily harm, if the crime is of public importance or the victim is not able to protect his or her interests (see paragraphs 33, 35 and 36 above). The Court is thus satisfied that at the time relevant to the instant case Lithuanian law provided a sufficient regulatory framework to pursue the crimes attributed by the applicant to J.H.L.", "79. The Court will now examine whether or not the impugned regulations and practices, and in particular the domestic authorities’ compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State’s positive obligations under Article 3 of the Convention.", "80. Turning to the circumstances of the case the Court notes that as early as 14 February 2001 the applicant had addressed the Panevėžys City District Court to bring a private prosecution. On the basis of forensic reports produced soon after each incident of violence, she claimed that J.H.L. had ill-treated her on five separate occasions, describing each incident in detail. She gave the names and addresses of five witnesses whom she wanted to call in the case. She alleged that the acts of violence against her constituted a crime mentioned in Article 116 of the old Criminal Code, that is to say, acts which had caused her minor bodily harm. She provided the domestic court with relevant medical documentation in support of her allegations. The Court thus concludes that the Lithuanian authorities received sufficient information from the applicant to raise a suspicion that a crime had been committed. It thus finds that as of that moment those authorities were under an obligation to act upon the applicant’s criminal complaint.", "81. Indeed, as appears from the Panevėžys City District Court ruling of 21 January 2002, that court took immediate steps to bring J.H.L. to justice. However, given that the latter had failed to appear in court on numerous occasions, the court decided to transfer the case to a public prosecutor. The Court thus considers that, up until that moment, the Lithuanian authorities had acted without undue delay.", "82. Be that as it may, the Court nevertheless notes that, once the case had been transferred for public prosecution, the investigation was suspended two times for lack of evidence. Each time the applicant had shown great interest in her case and had made serious attempts to have J.H.L. prosecuted. Upon her persistent appeals, the prosecutors quashed the investigator’s decisions as not being thorough enough (see paragraphs 18 and 19 above). The Court thus finds that this was a serious flaw on the part of the State.", "83. The Court further notes that even though the Lithuanian Code of Criminal Procedure had changed in May 2003, it was only in June 2005, that is to say two years after the legislative reform, that the prosecutor decided to return the case to the applicant for private prosecution, thus taking her back to square one, to the same situation she had been in four years previously, when she had first approached the Panevėžys City District Court in February 2001. In this connection the Court observes that the prosecutor’s decision was upheld by a higher prosecutor and then by a court, despite the applicant’s pleas that this would risk J.H.L. enjoying impunity given that the statutory time-limit to prosecute him was approaching. The Court also finds it noteworthy that, as it appears from the reading of Article 409 § 1 of the Code of Criminal Procedure, even after the reform of 1 May 2003 the investigation of acts causing minor bodily harm may still be pursued by a public prosecutor, provided that it is in the public interest. In this context it notes the Government’s submission that the new Law on Protection against Domestic Violence serves to acknowledge such crimes as having public importance, to be prosecuted by means of general criminal procedure instead of private prosecution.", "84. Indeed, once the criminal proceedings instituted by the public prosecutor had been terminated, the events transpired exactly as the applicant had predicted. Even though the applicant without any delay addressed the same Panevėžys City District Court with an application for private prosecution, that court dismissed her application on the very ground she feared, namely that the prosecution had become time-barred. Finally, the decision to terminate the criminal proceedings due to the statutory limitation was upheld by the Panevėžys Regional Court, thus leaving the applicant in a state of legal limbo. Accordingly, all the attempts by the applicant to have her attacker prosecuted were futile.", "85. Turning to the question of the State’s responsibility under Article 3 of the Convention, the Court firstly reiterates that, within the limits of the Convention, the choice of the means to secure compliance with Article 3 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the domestic authorities’ margin of appreciation, provided that criminal-law mechanisms are available to the victim (see Beganović, cited above, § 85). Thus, and inasmuch as it concerns the circumstances of the instant case, it is not for the Court to speculate whether the applicant’s criminal complaint should have been pursued by the public prosecutor, or by a way of private prosecution, although the Government’s argument suggests the former (see paragraph 62 above). Be that as it may, the fact remains that the circumstances of the case were never established by a competent court of law. In this connection the Court notes that one of the purposes of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be achieved without having the facts of the case established by a competent criminal court. The Court thus cannot accept that the purpose of effective protection against acts of ill-treatment is achieved where the criminal proceedings are discontinued owing to the fact that the prosecution has become time-barred and where this has occurred, as is shown above, as a result of the flaws in the actions of the relevant State authorities (see Beganović, cited above, § 85).", "86. In the Court’s view, the practices at issue in the present case, together with the manner in which the criminal-law mechanisms were implemented, did not provide adequate protection to the applicant against acts of violence. Therefore the Court finds that there has been a violation of Article 3 of the Convention.", "87. Having regard to the above, the Court finds that it is not necessary to examine the complaint separately under Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "88. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "89. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.", "90. The Government contested that claim as unreasonable.", "91. The Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Nevertheless, the particular amount claimed appears excessive. Making its assessment on an equitable basis, it awards the applicant EUR 5,000 in respect of non­pecuniary damage.", "B. Costs and expenses", "92. The applicant also claimed EUR 4,000 for the costs and expenses incurred before the Court. She broke that sum down into EUR 3,000 (30 hours of work with the fee of EUR 100 per hour) for the preparation of her response to the Government’s observations and her arguments that there had been a violation of the Convention, and EUR 1,000 (10 hours of work at a rate of EUR 100 per hour) for the preparation of her claims for just satisfaction.", "93. The Government observed that the applicant had not provided evidence to show that she had actually incurred the amount claimed. They also noted that the applicant had failed to provide a copy of the legal services agreement to show that she was contractually obliged to pay the required sum. The costs claimed could not therefore be considered actual.", "94. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, as there are no documents in the Court’s possession except for the authority form signed by Mr H. Mickevičius and having regard to the above criteria, the Court rejects the applicant’s claim for costs and expenses in the proceedings before the Court.", "C. Default interest", "95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Proceedings before the Swedish authorities and courts", "6. The applicant was born in 1970 and lives in Fagersta.", "7. On 13 August 2004 the applicant and her husband, X, arrived in Sweden and on 16 August 2004 they applied to the Migration Board ( Migrationsverket ) for asylum and residence permits. The applicant was interviewed on 4 October 2004 and 8 March 2005. She had no identity papers and could not prove her identity. She stated that she was born and grew up in Kabul, where her parents, one of her two brothers, an aunt and an uncle resided. Her other brother had left Afghanistan a long time ago. She also had an uncle in Mazar-e-Sharif. The applicant had attended school for twelve years in Kabul and had studied at the university.", "8. The applicant and her spouse also submitted that they had been persecuted since 1996 because X had been a politically active member of the communist party, leading to his arrest on two occasions. Following his second release they had moved to Kabul, but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him. The applicant submitted that she also had shown her political stance by acting as a teacher for women, which was not accepted by parts of the leading elite in Kabul. Therefore, they had fled the country. When they had left their home, they had stayed with her uncle in Mazar-e-Sharif and the latter had helped them finance their journey to Sweden by paying a smuggler 24,000 US Dollars. Lastly, X invoked his poor mental health, stating that he was suffering from anxiety, sleeplessness and aggressive behaviour.", "9. On 29 March 2005 the Migration Board rejected the couple's application. It first noted that the security situation in Afghanistan varied between different parts of the country but that it was better in Kabul than in other parts of the country. The Board then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within the communist party. Hence, it questioned the claim that his life would be endangered because of his membership of that party. The Board therefore found that neither X nor the applicant had shown that they had been persecuted in Afghanistan or that they would risk persecution upon return. Thus, even having regard to X's poor mental health, the Board found that there were no grounds on which to grant them leave to remain in Sweden.", "10. The applicant and her husband appealed against the decision to the then Aliens Appeal Board, which subsequently transmitted the case to the Migration Court ( Migrationsdomstolen ). The applicant maintained her claims and added that the threats against her and X stemmed from X's previous political activities and from her activities in educating women and that the authorities had not been able to protect them, not even in Kabul. The applicant further submitted that she had separated from X in June 2005, lived alone and intended to obtain a divorce although X opposed it. Due to this, she had been criticised by some of X's friends, been called a “bad woman” and some other Afghans had spread untrue rumours about her. By separating from X, she had broken with Afghan traditions which meant that she risked serious persecution if forced to return to her home country. In this respect, she pointed out that she would not be able to obtain a divorce in Afghanistan and that by trying to obtain a divorce in Sweden she had dishonoured both her own and X's family. Consequently, her own family had disowned her and she would risk reprisals from X's family. It would also be impossible for her to find work and, since she and X had no children, she would be a social outcast. She further mentioned that the punishment for adultery in Afghanistan was stoning. Lastly, she stated that she suffered from psychological problems and was in need of treatment in Sweden.", "11. The Migration Board contested the appeal and submitted, inter alia, that X had stated that his father had held a higher position than him in the party but that he had not been threatened. It further claimed that, having regard to X's poor mental health, it should be possible for the applicant to obtain a divorce. Moreover, it appeared that X would agree to a divorce. Lastly, it did not question that the applicant's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her.", "12. On 19 March 2007, after holding an oral hearing, the Migration Court rejected the appeal. It first considered that it had not been shown that X, on account of his previous political activities, would be of interest to any resistance groups in Afghanistan. It then observed that quite some time had passed since the applicant had taught women in her home country. Moreover, the court noted that the previous Taliban ban on education for women had been replaced by affirmative action for women and that the constitution stated that the State should actively support women's education. Therefore, the court found that the applicant had not demonstrated that she had a well-founded fear of persecution because of her previous work as a women's teacher. As concerned the applicant's personal life, the court observed that she had not formally divorced X although they had separated. In its view, nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with Afghan traditions. It further noted that the applicant had stated that she had not had an extramarital affair, for which reason there was no risk that she would be convicted of adultery and sentenced to death. In this respect, the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the Afghan authorities. Turning to her claim that she would lack a social network in Afghanistan, the court found that the applicant had not demonstrated that her family in Afghanistan had rejected her and, hence, she had a social network there. It further took into account that she was well-educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment. Therefore, and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain, the appeal was rejected.", "13. The minority of the court wanted to grant the applicant leave to remain in Sweden on the ground that, since she did not have any children and had separated from her husband, she had shown that she would risk degrading treatment upon return to her home country.", "14. The applicant appealed against the judgment to the Migration Court of Appeal ( Migrationsöverdomstolen ) which, on 4 September 2007, refused leave to appeal. This decision was final and the applicant's deportation order thus became enforceable.", "15. On 27 October 2007 invoking new circumstances, the applicant lodged an application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.", "16. On 28 January 2008 the applicant lodged a new application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.", "17. In February 2008 the applicant petitioned the District Court ( tingsrätten ) of Västmanland for a divorce from X. The latter informed the District Court on 17 July 2008 that he opposed a divorce. The applicant submitted that she had separated from her husband in 2005 and only seen him once since then. Moreover, she intended to invoke the divorce as one of the grounds to stop her deportation.", "18. In a decision of 19 November 2008, the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in Sweden.", "19. In the meantime, on 17 October 2008, the applicant requested the Migration Board to re-evaluate her case and stop her deportation. As grounds for her request, she claimed that the situation in Kabul had worsened considerably since the Migration Board's previous decision. She further alleged that she now had a well-founded fear of persecution upon return to Afghanistan since she had started a relationship with a Swedish man. Thus, she had committed adultery and risked the death penalty in Afghanistan. She had not been in touch with her family since the summer of 2005.", "20. She also submitted a letter from the UNHCR Regional Office for the Baltic and Nordic Countries, dated 2 October 2008, which stated, inter alia, the following:", "“UNHCR's views on the protection needs of Afghan female asylum-seekers are fully set forth in the UNHCR's Eligibility Guidelines for Assessing the International Protection needs of Afghan Asylum ‑ seekers. ... In the context of Afghanistan, UNHCR would like to draw to your attention to the fact that an assessment of a refugee claim of an Afghan female asylum-seeker, should take into account the specifically vulnerable situation in which Afghan women are found, including pressure from within families, communities, and by the public to conform [to] behaviour in accordance with particular codes of behaviour. In this regard, a separation and/or divorce effected in the country of asylum, may indicate adoption of a Westernised way of life and be perceived as, or actually transgressing, prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and/or political opinion under the scope of Article 1 A (2) of the 1951 Refugee Convention. ... UNHCR notes that Afghan female asylum-seekers'reliance for relative social, cultural and economic freedom is exclusively dependent on the existence of male protection (husband, father, brother or extended family member) and that lack of such networks may seriously undermine a returnee's personal physical, economic and emotional security.”", "21. On 24 October 2008 the Migration Board refused to reconsider the applicant's case as she had failed to invoke any new circumstances of importance. It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts. The Board also found that there were no impediments to the enforcement of the deportation order.", "22. The applicant appealed against the decision to the Migration Court, maintaining the grounds invoked before the Board and insisting that these were new circumstances of importance. On 4 December 2008 the court rejected the appeal, upholding the Board's decision and reasoning in full.", "23. On 21 January 2009 the Migration Court of Appeal refused leave to Appeal and, on 17 February 2009, the case was transferred to the Police Authority to enforce the deportation order.", "24. Finally, on 17 April 2009 the applicant lodged a third application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.", "B. Proceedings and new submissions before the Court", "25. On 28 April 2009 the applicant lodged the case with the Court and on 11 May 2009 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice", "26. In her observations of 4 November 2009 the applicant submitted that already before leaving Afghanistan, she had told her mother about her problems with her husband. In October 2005 the applicant had called home and told her mother that she and her husband had separated. The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband. She had then talked to her father who became furious and shouted that she brought dishonour to the family. The conversation had ended because the applicant ran out of money on her telephone card. The father had called her back the following day to try to persuade her to change her mind and talked about honour, shame and her disgracing the family. In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her. She was no longer his daughter. After the conversation, the applicant had called her uncles in Kabul and Mazar-e Sharif to have their support but they had both repeated the words of her father. That had been the last conversation between the applicant and her relatives.", "27. With the applicant's observations of 4 November 2009 she also enclosed a letter of 31 October 2009 “to whom it may concern” by a named Swedish man who confirmed having a relationship with the applicant. He stated, inter alia, that they had met for the first time in the autumn of 2007, that their relationship had started in February 2008 and that they had been living together in his apartment since April 2009.", "28. In reply the Government observed on 15 January 2010 that the facts now presented by the applicant in her observations were never submitted to the Swedish authorities in spite of the fact that these could be considered relevant to her claim for asylum. Notably, regarding the claim that the applicant and the said Swedish man have been living together since April 2009, the Government noted that the applicant has still not changed her registered mail address in Fagersta although her new residence is apparently far away." ]

[ "II. RELEVANT DOMESTIC LAW", "29. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act ( Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act ( Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.", "30. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).", "31. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).", "32. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).", "33. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.", "III. RELEVANT INFORMATION ON AFGHANISTAN", "34. In so far as relevant, the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers of July 2009, which replaced the previous Guidelines from December 2007, set out the following:", "In view of the serious and widespread human rights violations and ongoing armed conflict in many parts of the country, UNHCR considers that a significant number of Afghan asylum seekers are in need of international protection. Applications by Afghan asylum-seekers should be determined on an individual basis, according to fair and efficient refugee status determination procedures, including the right of appeal. Favourable consideration should be given to the specific groups identified in these Guidelines, including, but not limited to (i) persons perceived as contravening Sharia law and members of minority religious groups; (ii) ethnic minority groups; (iii) persons associated with or perceived as supporting the Government, including civil society members; (iv) actual or perceived supporters of armed anti-Government groups; (v) journalists; (vi) persons associated with the People's Democratic Party of Afghanistan or other left-aligned political parties; (vii) women; (viii) children; and (ix) persons at risk of becoming victims of blood feuds.", "UNHCR further considers that an internal flight or relocation alternative (IFA/IRA) is not available within certain parts of Afghanistan due to a number of factors. If, however, the availability of an IFA/IRA must be assessed as a requirement in a national eligibility procedure, it should be examined carefully and on a case-by-case basis, in light of the requisite relevance and reasonableness analyses, taking into account the individual circumstance of the case, and bearing in mind the cautions in these Guidelines. Even in those exceptional cases where relocation to an accessible area might be considered as viable to eliminate the existing threat, such area can only be a reasonable alternative in cases where the claimant has strong family, social or tribal links in the area of displacement, permitting relocation without undue economic and social hardship. ...", "(g) Women", "Women are at particular risk of ill-treatment if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. Ill-treatment occurs in a variety of forms and may be inflicted by several actors, including family members. Such treatment includes domestic violence, excessive custodial sentences and degrading and inhuman treatment. While there is a limited number of women holding public office, women's rights continue to be curtailed, restricted and systematically violated. In April 2009, for instance, a Shiite Personal Status Law was passed by Parliament and signed by President Karzai. The law requires, inter alia, women to comply with their husbands'sexual requests, and to obtain permission to leave the home, except in emergencies. The code has yet to be implemented and is currently under review as a result of international pressure.", "Cases of physical violence perpetrated against women and girls in Afghanistan have increased by about 40 % in the period from March 2007 to March 2008. Existing figures indicate that currently up to 80 % of Afghan women are affected by domestic violence. Human rights organizations report an overall increase of cases of self-immolation and other forms of suicide. The phenomenon of female self-immolation is commonly linked to the pervasive societal discrimination against women. Survivors of sexual violence generally lack basic support mechanisms such as trauma counselling and medical treatment, as well as judicial capacity for forensics analysis. The social stigma attached to the reporting of gender-based violence in Afghanistan often prevents victims from seeking physical or psychological treatment.", "Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatization to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted.", "Unaccompanied women or women lacking a male “tutor” (mahram) continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity.", "Forced and child marriages continue to be widely practiced in Afghanistan, and can occur in a variety of forms. Statistics show that nearly 60 % of girls in Afghanistan are married before they reach 16 years old. Most marriages continued to be arranged by families. However, more coerced forms include'sale'marriage, that is, girls sold for a fixed quantity of goods, cash or simply to settle a family debt; bad dadan, a tribal form of dispute-settling in which the offending family offers one girl for marriage into the wronged family, for instance to settle a blood debt; and badal, when two families exchange their daughters in an attempt to minimize marriage costs.", "Furthermore, women's rights activists face threats and intimidation, particularly if outspoken about women's rights, the role of Islam or the behaviour of commanders. In areas under the control of armed anti-Government groups, there are growing indications that women face systematic societal discrimination. For example, a significant number of female medical graduates is systematically refusing to work in rural areas, due to the fear of being targeted by insurgents. These developments affect women's access to health in a disproportionate way.", "Access to education for girls is also severely curtailed. According to the Ministry of Education and aid agencies over five million school-age children (three million of them girls) have been deprived of education as a consequence of conservative customs, poverty, lack of education facilities and a culture of gender discrimination.", "The deterioration of the security situation has also had a detrimental effect on education. Armed anti-Government groups have continued their systematic attacks on schools, teachers, pupils (particularly schoolgirls) and parents. According to the Afghan Ministry of Education (MoE), more than 600 primary, secondary and high schools closed due to such attacks. Up to 80 % of schools are closed in the four southern provinces of Helmand, Kandahar, Zabul and Urozgan, with Helmand Province having only 54 schools, primarily for boys, functioning, compared to 223 schools open in 2002. Consequently, between 230,000 to 300,000 students have been deprived of an education in 12 provinces, according to MoE officials. Girls'schools are increasingly a target of attacks. Some 50 % of security incidents at schools across the country were specifically directed against girls'schools despite the fact that they represent only 14.8 % of the total number of primary, secondary and high schools in the country. Furthermore, female teachers are specifically targeted and higher bounties are offered for killing them. In November 2008, in a widely reported attack in Kandahar, 12 students and four teachers, all female, were sprayed with acid and suffered severe injuries.", "Given the pervasive societal discrimination and the widespread sexual and gender based violence, Afghan women and girls, particularly those living in areas affected by the armed conflict or under the de facto control of armed anti-Government groups, may be at risk of persecution depending on their individual profile and circumstances. Failure to conform to conventional roles or transgression of social and religious norms may expose women and girls to violence, harassment or discrimination in Afghanistan. As such, women with particular profiles, including, but not limited to victims of domestic violence or other serious forms of violence, unaccompanied women or single heads of household, women with visible social or professional roles, such as journalists, human rights activists and community workers, may be at risk of persecution on the ground of membership of a particular social group. Where non-conformity with traditional roles is perceived as opposing traditional power structures, the risk of persecution may be linked to the ground of religion and/or political opinion. Furthermore, measures which restrict one's ability to earn a living so that survival is threatened, or severe limitations to accessing education or health services, may also amount to persecution.", "35. The US State Department Human Rights Report on Afghanistan for 2008, published on 25 February 2009 stated, inter alia :", "Women", "The law criminalizes rape, which is punishable by death, but under Shari'a, which the country's laws draw from and cannot conflict, the criminalization did not extend to spousal rape. Under Shari'a, a rape case requires a woman to produce multiple witnesses to the incident, while the man need simply claim it was consensual sex, often leading to an adultery conviction of the victim. Adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a \"moral\" offense. While the MOI reported 226 cases of rape during the year; however, the actual number of cases generally was believed to be much higher. Of the reported cases, 28 were charges of rape against females and 198 were of rape against males. The MOI reported 172 arrests in connection with rape cases. Statistics on convictions were unavailable. Rapes were difficult to document due to social stigma. Female victims faced stringent societal reprisal from being deemed unfit for marriage to being imprisoned. According to NGOs jail authorities frequently raped women imprisoned overnight in jail.", "The Afghan penal code criminalizes assault, and courts entered judgments against domestic abusers under this provision. According to NGO reports, hundreds of thousands of women continued to suffer abuse at the hands of their husbands, fathers, brothers, armed individuals, parallel legal systems, and institutions of state such as the police and justice system. Many elements of society tolerated and practiced violence against women. A Kabul women's shelter reported receiving 50 new cases of domestic violence victims a month from MOWA referrals. According to the shelter's report the weak economy and poor security contributed to the incidence of domestic violence. Authorities rarely prosecuted abusers and only occasionally investigated complaints of violent attacks, rape, or killings, or suicides of women. If cases came to court, the accused were often exonerated or punished lightly. The director of a women's shelter in Kabul noted domestic violence occurred in most homes but went largely unreported due to societal acceptance of the practice. Domestic violence usually consisted of beating women and children and, less often, burning women. During the year, the AIHRC initiated additional efforts to collect statistics on violence against women.", "There were at least 19 women's shelters across the country. The five shelters in Kabul were home to more than 100 women and girls. The Ministry of Women's Affairs (MOWA) and other agencies referred women to the centers, which were designed to give protection, accommodation, food, training, and healthcare to women escaping violence in the home or seeking legal support due to family feuds. According to the MOWA, as many as 20 women and girls were referred to the MOWA's legal department every day; however, space at the specialized shelters was limited. Women in need of shelter who could not find a place in the Kabul shelters often ended up in prison.", "The concept of women's shelters was not widely accepted in society, as many persons treated them with distrust and did not understand their utility. The director of one shelter stated she always referred to the location as a mediation centre, as \"shelter\" was considered a negative word. Policewomen trained to help victims of domestic violence complained they were instructed not to do outreach to victims but simply to wait for victims to show up at police stations. This significantly hindered their work, as reporting domestic violence was not socially accepted. UNAMA reported police leadership often did not provide female officers with equipment or vehicles necessary to do outside investigations. A Herat-based NGO, however, reported recently graduated women police officers there were active in crime investigation including investigating cases of domestic violence. During the year, a local NGO conducted four domestic violence trainings for 240 ANP officers in Kabul, including those working in ANP Family Response Units. The Family Response Units are staffed primarily by female police officers and address violence and crimes against women, children, and families. They offer mediation and resources to prevent future instances of domestic violence.", "Women continued to face pervasive human rights violations and remained largely uninformed about their rights under the law. Discrimination was more acute in rural areas and small villages. Women in urban areas continued to make strides toward greater access to public life, education, health care, and employment; however, the denial of educational opportunities during the continuing insurgency, as well as limited employment possibilities and the threat of violence, continued to impede the ability of many women to improve their situation.", "Societal discrimination against women persisted, including domestic abuse, rape, forced marriages, exchange of girls to settle disputes, kidnappings, and honour killings. In some rural areas, particularly in the south, women were forbidden to leave the home except in the company of a male relative ...", "According to a report released during the year by Womankind, 87% of women complained they were victims of violence, half of it sexual. According to the report, more than 60% of marriages were forced and, despite laws banning the practice, 57% of brides were under the legal marriage age of 16. The report stated many of these girls were offered as restitution for a crime or as debt settlement.", "Local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage. Several girls between the ages of 17 and 21 remained detained in Pol-e-Charkhi prison having been captured after fleeing abusive forced marriages.", "The AIHRC documented a total of 76 honour killings throughout the year; however, the unreported number was believed to be much higher. In September, according to a local NGO, an 18 year-old woman in Kapisa Province was killed by her brother because she had run away from a forced marriage. Reportedly, after the woman ran away to a Kabul women's shelter the Governor of Kapisa intervened in the case, sheltered her, and forced the woman's mother to return her to Kapisa, resulting in her death.", "Women occasionally resorted to self-immolation when they felt there was no escape from their situations. During the year the AIHRC documented 72 cases of self-immolation, in contrast to 110 cases in 2007. Other organizations reported an overall increase during the past two years. According to the AIHRC, almost all the women had doused themselves with gasoline and set themselves alight. In Herat Province, during the first six months of the year, the Herat city hospital alone recorded 47 cases of self-immolation, of whom 40 died. There have also been reports of relatives setting women on fire to create the appearance of self-immolation ...", "There is no law specifically prohibiting sexual harassment.", "Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system. Local family and property law were not explicitly discriminatory toward women, but in parts of the country where courts were not functional or knowledge of the law was minimal, elders relied on Shari'a and tribal custom, which generally were discriminatory toward women. Most women reported limited access to justice in tribal shuras, where all presiding elders were men; women in some villages were not allowed any access for dispute resolution. Women's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favourable to women ...", "36. The UK Home Office, Country of Origin Information Report on Afghanistan of 18 February 2009, states in paragraphs 23.27- 23.30 about divorce:", "Islamic Sharia and Constitution of the country have provided suitable rights for women and men, but practically and in some rules and practices of equality between men and women these rights are not ensured. Current legislation leaves women largely unprotected. A man can divorce his wife without due process. In the absence of officially enforced marriage and divorce registration women remain particularly open to abusive practices. A woman can remarry three months after divorce period (Edat). However, if challenged, she will have to provide witnesses to prove her divorce in court. The woman can initiate the divorce process if she has enough reasons to do so; accepted reasons among others include: her husband must be sick and it endangers her; her husband must fail to provide for the family; her husband must be absent for more than four years in the house or be sentenced for imprisonment of 10 years or more. In this case, the court will assign her mahr – divorce maintenance – and custody of girls until they reach their ninth birthday and boys until their seventh birthday.” (The Afghanistan Human Rights Commission report, December 2008).", "The Womankind report of February 2008 noted “Afghan civil law contains numerous provisions that protect women's human rights in the family, such as their right to divorce if they are being maltreated. While seldom enforced, existing law provides a basis from which to advocate for enforcement and education about women's human rights.” Further, “Women's choices regarding marriage and divorce remain circumscribed by custom and discriminatory laws ... ” (Freedom House, 2008) UNHCR's December 2007 paper concurred “ Women remain deprived of basic civil rights, including in cases of divorce, custody and with regard to inheritance rights.”", "Womankind also recorded that “Stigma and shame surround divorced women ... rendering them unmarriageable and subsequently, financially destitute. Polygamy is one of the few options available to divorced women, who have low social status but require a husband for financial dependence.” Also, “Women's economic dependence on male family members prevents them from seeking divorce or leaving abusive marriages.”", "An IRIN News article dated 16 July 2008 reported that “In Afghanistan sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances ... Every year hundreds of female sex workers are sent to prison for allegedly having'unlawful sexual relationships', according to women's rights activists ... ” However, high food prices, drought, unemployment and lack of socio-economic opportunities are pushing some women and young girls in northern Afghanistan into commercial sex work, women's rights activists and several affected women told IRIN ...", "37. The Human Rights Watch, in its report “ We Have the Promises of the World” of 6 December 2009, on women's rights in Afghanistan, details emblematic cases of ongoing rights violations in five areas: attacks on women in public life; violence against women; child and forced marriage; access to justice; and girls'access to secondary education. The summary set out, inter alia :", "Eight years after the fall of the Taliban, and the establishment of the Karzai government, Afghan women continue to be among the worst off in the world. Their situation is dismal in every area, including in health, education, employment, freedom from violence, equality before the law, and political participation ... The diminishing status of women's rights in Afghanistan came back into focus in March 2009 when the Shia Personal Status law, which was riddled with Taliban style misogyny, was passed by parliament and signed by President Hamid Karzai. The law regulates the personal affairs of Shia Muslims, including divorce, inheritance, and minimum age of marriage, but, as detailed below, severely restricts women's basic freedoms. ... the final outcome fell far short of expectations, apparently because President Karzai was intent on maintaining the electoral support of Shia fundamentalists. A month before the presidential election he issued by decree an amended version of the law which still includes articles that impose drastic restrictions upon Shia women, including the requirement that wives seek their husbands'permission before leaving home except for unspecified “reasonable legal reasons.” The law also gives child custody rights to fathers and grandfathers, not mothers or grandmothers, and allows a husband to cease maintenance to his wife if she does not meet her marital duties, including sexual duties. The furor over the Shia law highlighted the fragility of the gains made by Afghan women, human rights activists, and reform-minded politicians. The dominant political factions of Afghanistan remain ideologically hostile to many of the rights that many women have started to enjoy since the fall of the Taliban, such as freedom of movement, freedom to work, and the right to education. Many of the women interviewed for this report observed that the space for them to work as activists for change has diminished over the past few years, as the government has come to increasingly rely on conservative factions to maintain political control.", "Violence against Women: Violence against women in Afghanistan is endemic. A nationwide survey of 4,700 women, published in 2008, found that 87.2% had experienced at least one form of physical, sexual, or psychological violence or forced marriage in their lifetimes. The forms of violence include rape, physical violence, forced marriage, and “honour killings.” Too often the attitudes of those in government and the police reflect the misogynous views, rooted in cultural traditions - but increasingly rejected by younger generations of Afghans – that underlie some of the violence against women. As Dr. Soraya Sobhrang, Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (AIHRC), told us, “Police and judges see violence against women as legitimate, so they do not prosecute cases.” In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium that often still attaches to women who leave their houses without a male guardian, let alone women who seek protection from public authorities. In a 2008 study by the Women and Children Legal Research Foundation (WCLRF), only 15% thought that a woman disabled by violence should seek police help. For those who do seek help, many encounter lack of concern, if not outright hostility or abuse. Rape is not a crime in the Afghan Penal Code. Under the code, rapists can only be charged with “forced” zina, or adultery, which sometimes results in women also being prosecuted for zina. In a major achievement for civil society groups and women's rights activists, the president issued the Elimination of Violence Against Women law, which makes rape a crime. At the time of writing the law is being considered by parliament ...", "Access to Justice: An underlying problem is women's access to justice. Police training involves little or no training in gender based violence or women's rights, particularly as training has been increasingly focused on counter-insurgency and security skills rather than crime prevention, crime solving and community policing. Deeply entrenched cultural prejudices prevent many women accessing the police or the courts because of the fear of being stigmatized a “bad woman.” Women face discrimination and prejudice in police stations and the courts from officials who often do not know the law but penalize women according to customary law, which places great emphasis on notions of female “honour” and chastity. The majority of women in jail are charged with extramarital sex (zina) or with “running away”- something that is not a crime in Afghan law or Sharia but often reflects a conservative cultural view that sees women as property of fathers or husbands. One widely welcomed policy response to this was the creation of female-staffed “Family Response Units” (FRUs) in police stations. But, as detailed in this report, there are serious problems with the implementation of FRUs, including insufficient numbers of women police officers and inadequate training, mentoring, and facilities ...", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "38. The applicant complained that the enforcement of the deportation order to Afghanistan would be in violation of Article 3 of the Convention, which sets out:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "39. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "40. The Government noted that international reports confirmed that the general situation for women in Afghanistan was very difficult and that women who lacked a social network and the protection of a male person within the family or the extended family would be particularly exposed to the risk of having their human rights violated, although it appeared that the situation was slightly better in Kabul compared to rural areas.", "41. In the present case, however, they maintained that the applicant has failed to substantiate being at a real and concrete risk of being subjected to ill-treatment upon return to Afghanistan, either by Afghan authorities or by private individuals.", "42. They also noted that the applicant's identity was unsubstantiated and that her story was vague and lacking in detail and evidence and that her general credibility could be questioned.", "43. She had been particularly vague regarding her alleged extramarital relationship and failed to submit information thereon to the Swedish authorities during the domestic proceedings, except for the information that he was Swedish. That seemed especially peculiar since the applicant apparently met her new partner already in the autumn 2007 and information about that relationship could have been considered relevant to her claim for asylum. She has not provided any explanation to the domestic authorities as to why she omitted to furnish concrete information about the man and the relationship, including her alleged move to his address in April 2009. In any event there was nothing to indicate that the alleged extramarital relationship had come to the knowledge of the Afghan authorities, her family or her husband's family.", "44. Likewise, it was only in her observations of 4 November 2009 that the applicant explained how her family allegedly had rejected her after several telephone conversations in the autumn of 2005. However, that version of events was inconsistent with her statement to the Migration Board in her application of 13 October 2008 that she had not had any contact with her relatives since the summer of 2005. Moreover, the applicant's claim that her family had rejected her and that she had no social network or male protection in her home country was not supported by any evidence. It thus remained unsubstantiated that the applicant's family had repudiated her as also found by the Migration Court in its judgment of 19 March 2007.", "45. As to the submitted letter of 2 October 2008 from the Regional Office for the Baltic and Nordic countries of the UNHCR, the Government contended that it had little value as evidence since apparently the author has no personal knowledge of the applicant and the letter rather gave the UNHCR's views on the need for protection of Afghan female asylum seekers in general.", "46. Finally, in the Government's view the applicant was still married and it did not appear likely that the applicant's divorce attempt had come to the attention of the Afghan authorities. Moreover, it could not be ruled out that the applicant could obtain a divorce in Afghanistan. That was possible in some situations, for example if the husband was ill and that endangered the wife. They noted in this respect that it emerged in the domestic proceedings that the applicant's husband, X, suffered from mental health problems in the form of anxiety, sleeplessness and aggressive behaviour.", "47. The applicant maintained that, if returned from Sweden to Afghanistan, she would face a real risk of being persecuted, or even sentenced to death, because she had separated from her husband and was involved with another man. She further claimed that she risks being subjected to inhuman and degrading treatment in Afghanistan since her family has disowned her and she therefore would have no social network or male protection. In this respect, she invoked the poor security situation and the difficult humanitarian conditions for women in Afghanistan.", "48. The applicant believed that both her own family and her husband's family in Kabul had been informed about her attempt to dissolve the marriage in Sweden because the District Court had contacted her husband and been told on 17 July 2008 that he could not consent to a divorce.", "49. Furthermore she submitted that it was impossible to prove that her family had repudiated her. They did not want to have contact with her and it was difficult to see what submission might reasonably be expected to substantiate her account in this respect.", "50. Finally, the applicant refuted that she could be successful in divorcing her husband in Afghanistan because it would be impossible for her to gather two witnesses in her favour. However, even if she returned without her husband, as she intended to, she would still be at risk of treatment contrary to Article 3 of the Convention for the reasons invoked above.", "2. The Court's assessment", "51. The Court reiterates that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens ( Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-...).", "52. Whilst being aware of the reports of serious human rights violations in Afghanistan, as set out above, the Court does not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the applicant were to return to that country. The Court thus has to establish whether the applicant's personal situation is such that her return to Afghanistan would contravene Article 3 of the Convention.", "53. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker's submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005 and NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008). Where such evidence is adduced, it is for the Government to dispel any doubts about it.", "54. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Afghanistan, bearing in mind the general situation there and her personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108 in fine ).", "55. The Court firstly observes that women are at particular risk of ill ‑ treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. The UNHCR thus observed that Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatisation to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted.", "56. The Court notes in this respect that, albeit not legally, the applicant has resided in Sweden since 13 August 2004. The Court notes that already for that reason she may be perceived as not conforming to the gender roles ascribed to her by Afghan society, tradition and legal system. More importantly, however, in Sweden in vain she attempted to divorce her husband in 2008 and she has expressed a clear intention of not resuming the marriage. The Court points out that in cases like the one before it, the expression of an intention to divorce could be motivated by previous refusals by the authorities to grant asylum on the motive originally submitted. Thus, it must be expected that an applicant can demonstrate convincingly that the intention is real and genuine. The demand on the applicant may bear some resemblances with cases in which an asylum seeker in a receiving county has converted to Christianity from Islam and allege that the authorities in the Islamic home country have knowledge thereof and that this may result in serious negative life-threatening repercussions upon return ( see, for example, mutatis mutandis, Reza Mohammasi v. the Netherlands (dec.), no. 5140/06, 1 June 2006 and Razaghi v. Sweden (dec.), no. 64599/01, 11 March 2003). In the present case the applicant separated from her husband X in June 2005, approximately one year after the spouses had entered Sweden, and while the appeal against the Migration Board's first refusal of 29 March 2005 was pending before the Migration Board. It is not in dispute that she only saw her husband once thereafter and it is a proven fact that she tried in vain to divorce him in 2008. In these circumstances the Court finds that the applicant has demonstrated a real and genuine intention of not living with her husband. The case thus differs from, for example, S.A. v. The Netherlands (dec.), 3049/06, 12 December 2006 in which the applicant wife did not challenge her marriage, but alleged that her husband was not the father of her child, born only one year after the spouses had entered the Netherlands and requested asylum. The Court found in that case that the allegation was wholly unsubstantiated and noted that it had not resulted in the husband having undertaken any step indicating that he considered a separation, divorce or to challenge the paternity of the child, which could have imposed a risk to the applicant upon return to Afghanistan.", "57. The applicant is still formally married to X. He informed the District Court on 17 July 2008 that he opposed her wish to divorce. Thus, if the spouses are deported to Afghanistan, separately or together, X may decide to resume their married life together against the applicant's wish. The Court points out in this connection, for example, the Shiite Personal Status Law that was passed by Parliament and signed by the President in April 2009 which, although yet to be implemented, requires, inter alia, women to comply with their husbands'sexual requests and to obtain permission to leave the home, except in emergencies. It also notes the gloomy figures indicating that currently up to 80 % of Afghan women are affected by domestic violence (see paragraph 34). Moreover, according to the Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (see paragraph 37) the authorities see violence against women as legitimate, so they do not prosecute in such cases. In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium affecting women who leave their houses without a male guardian, let alone women who seek protection from public authorities.", "58. The Court points out that there are no specific circumstances in the present case substantiating that the applicant will be subjected to such treatment by X, but the Court cannot ignore the general risk indicated by statistic and international reports.", "59. The applicant maintained that she was also at risk of being persecuted, and even being sentenced to death, because she had an extramarital relationship. The Court observes, however, that the applicant failed to submit any relevant and detailed information thereon to the Swedish authorities during the domestic proceedings and that subsequently she has not even tried to explain why she failed to do so. Nevertheless, should X perceive the applicant's filing for divorce or other actions as an indication of an extramarital relationship, the Court notes that, according to the US State Department Human Rights Report on Afghanistan, (see paragraph 35) “adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a \"moral\" offense”. Moreover, the “local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage”. Furthermore, an IRIN News article dated 16 July 2008 maintained that “in Afghanistan, sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances.”", "60. Should the applicant succeed, as she intends, in living separated from her husband in Afghanistan, the Court notes the statement by the UNHCR (see paragraph 34) that “unaccompanied women or women lacking a male “tutor” continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity. ”", "61. The Government contended that the applicant's claim that her family had rejected her and that she had no social network or male protection in her home country was unsubstantiated. The Court notes, however, that although there are divergences as to whether the applicant's last contact with her family was in the summer of 2005 or in October 2005, no information has been presented which gives strong reasons to question the veracity of her submissions that she has had no contact with her family for almost five years, which does support her claim that she no longer has a social network or adequate protection in Afghanistan.", "62. Having regard to all of the above, in the special circumstances of the present case, the Court finds that there are substantial grounds for believing that if deported to Afghanistan, the applicant faces various cumulative risks of reprisals which fall under Article 3 of the Convention from her husband X, his family, her own family and from the Afghan society. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "63. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "64. The applicant claimed compensation for non-pecuniary damage in the amount of 5,000 Euros (EUR).", "65. The Government contested that claim.", "66. In view of the finding above (see paragraph 62) the Court dismisses the applicant's claim for non-pecuniary damage.", "67. The applicant did not claim any reimbursement for costs and expenses incurred before the Court, since the legal work was performed pro bono.", "III. RULE 39 OF THE RULES OF COURT", "68. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "69. It considers that the indication made to the Government under Rule 39 of the Rules of Court must remain in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention (see F.H. v. Sweden, no. 32621/06, § 107, 20 January 2009)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Proceedings before the Swedish authorities and courts", "6. The applicant was born in 1970 and lives in Fagersta.", "7. On 13 August 2004 the applicant and her husband, X, arrived in Sweden and on 16 August 2004 they applied to the Migration Board ( Migrationsverket ) for asylum and residence permits. The applicant was interviewed on 4 October 2004 and 8 March 2005. She had no identity papers and could not prove her identity. She stated that she was born and grew up in Kabul, where her parents, one of her two brothers, an aunt and an uncle resided. Her other brother had left Afghanistan a long time ago. She also had an uncle in Mazar-e-Sharif. The applicant had attended school for twelve years in Kabul and had studied at the university.", "8. The applicant and her spouse also submitted that they had been persecuted since 1996 because X had been a politically active member of the communist party, leading to his arrest on two occasions. Following his second release they had moved to Kabul, but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him. The applicant submitted that she also had shown her political stance by acting as a teacher for women, which was not accepted by parts of the leading elite in Kabul. Therefore, they had fled the country. When they had left their home, they had stayed with her uncle in Mazar-e-Sharif and the latter had helped them finance their journey to Sweden by paying a smuggler 24,000 US Dollars. Lastly, X invoked his poor mental health, stating that he was suffering from anxiety, sleeplessness and aggressive behaviour.", "9. On 29 March 2005 the Migration Board rejected the couple's application. It first noted that the security situation in Afghanistan varied between different parts of the country but that it was better in Kabul than in other parts of the country. The Board then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within the communist party. Hence, it questioned the claim that his life would be endangered because of his membership of that party. The Board therefore found that neither X nor the applicant had shown that they had been persecuted in Afghanistan or that they would risk persecution upon return. Thus, even having regard to X's poor mental health, the Board found that there were no grounds on which to grant them leave to remain in Sweden.", "10. The applicant and her husband appealed against the decision to the then Aliens Appeal Board, which subsequently transmitted the case to the Migration Court ( Migrationsdomstolen ). The applicant maintained her claims and added that the threats against her and X stemmed from X's previous political activities and from her activities in educating women and that the authorities had not been able to protect them, not even in Kabul. The applicant further submitted that she had separated from X in June 2005, lived alone and intended to obtain a divorce although X opposed it. Due to this, she had been criticised by some of X's friends, been called a “bad woman” and some other Afghans had spread untrue rumours about her. By separating from X, she had broken with Afghan traditions which meant that she risked serious persecution if forced to return to her home country. In this respect, she pointed out that she would not be able to obtain a divorce in Afghanistan and that by trying to obtain a divorce in Sweden she had dishonoured both her own and X's family. Consequently, her own family had disowned her and she would risk reprisals from X's family. It would also be impossible for her to find work and, since she and X had no children, she would be a social outcast. She further mentioned that the punishment for adultery in Afghanistan was stoning. Lastly, she stated that she suffered from psychological problems and was in need of treatment in Sweden.", "11. The Migration Board contested the appeal and submitted, inter alia, that X had stated that his father had held a higher position than him in the party but that he had not been threatened. It further claimed that, having regard to X's poor mental health, it should be possible for the applicant to obtain a divorce. Moreover, it appeared that X would agree to a divorce. Lastly, it did not question that the applicant's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her.", "12. On 19 March 2007, after holding an oral hearing, the Migration Court rejected the appeal. It first considered that it had not been shown that X, on account of his previous political activities, would be of interest to any resistance groups in Afghanistan. It then observed that quite some time had passed since the applicant had taught women in her home country. Moreover, the court noted that the previous Taliban ban on education for women had been replaced by affirmative action for women and that the constitution stated that the State should actively support women's education. Therefore, the court found that the applicant had not demonstrated that she had a well-founded fear of persecution because of her previous work as a women's teacher. As concerned the applicant's personal life, the court observed that she had not formally divorced X although they had separated. In its view, nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with Afghan traditions. It further noted that the applicant had stated that she had not had an extramarital affair, for which reason there was no risk that she would be convicted of adultery and sentenced to death. In this respect, the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the Afghan authorities. Turning to her claim that she would lack a social network in Afghanistan, the court found that the applicant had not demonstrated that her family in Afghanistan had rejected her and, hence, she had a social network there. It further took into account that she was well-educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment. Therefore, and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain, the appeal was rejected.", "13. The minority of the court wanted to grant the applicant leave to remain in Sweden on the ground that, since she did not have any children and had separated from her husband, she had shown that she would risk degrading treatment upon return to her home country.", "14. The applicant appealed against the judgment to the Migration Court of Appeal ( Migrationsöverdomstolen ) which, on 4 September 2007, refused leave to appeal. This decision was final and the applicant's deportation order thus became enforceable.", "15. On 27 October 2007 invoking new circumstances, the applicant lodged an application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.", "16. On 28 January 2008 the applicant lodged a new application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.", "17. In February 2008 the applicant petitioned the District Court ( tingsrätten ) of Västmanland for a divorce from X. The latter informed the District Court on 17 July 2008 that he opposed a divorce. The applicant submitted that she had separated from her husband in 2005 and only seen him once since then. Moreover, she intended to invoke the divorce as one of the grounds to stop her deportation.", "18. In a decision of 19 November 2008, the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in Sweden.", "19. In the meantime, on 17 October 2008, the applicant requested the Migration Board to re-evaluate her case and stop her deportation. As grounds for her request, she claimed that the situation in Kabul had worsened considerably since the Migration Board's previous decision. She further alleged that she now had a well-founded fear of persecution upon return to Afghanistan since she had started a relationship with a Swedish man. Thus, she had committed adultery and risked the death penalty in Afghanistan. She had not been in touch with her family since the summer of 2005.", "20. She also submitted a letter from the UNHCR Regional Office for the Baltic and Nordic Countries, dated 2 October 2008, which stated, inter alia, the following:", "“UNHCR's views on the protection needs of Afghan female asylum-seekers are fully set forth in the UNHCR's Eligibility Guidelines for Assessing the International Protection needs of Afghan Asylum ‑ seekers. ... In the context of Afghanistan, UNHCR would like to draw to your attention to the fact that an assessment of a refugee claim of an Afghan female asylum-seeker, should take into account the specifically vulnerable situation in which Afghan women are found, including pressure from within families, communities, and by the public to conform [to] behaviour in accordance with particular codes of behaviour. In this regard, a separation and/or divorce effected in the country of asylum, may indicate adoption of a Westernised way of life and be perceived as, or actually transgressing, prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and/or political opinion under the scope of Article 1 A (2) of the 1951 Refugee Convention. ... UNHCR notes that Afghan female asylum-seekers'reliance for relative social, cultural and economic freedom is exclusively dependent on the existence of male protection (husband, father, brother or extended family member) and that lack of such networks may seriously undermine a returnee's personal physical, economic and emotional security.”", "21. On 24 October 2008 the Migration Board refused to reconsider the applicant's case as she had failed to invoke any new circumstances of importance. It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts. The Board also found that there were no impediments to the enforcement of the deportation order.", "22. The applicant appealed against the decision to the Migration Court, maintaining the grounds invoked before the Board and insisting that these were new circumstances of importance. On 4 December 2008 the court rejected the appeal, upholding the Board's decision and reasoning in full.", "23. On 21 January 2009 the Migration Court of Appeal refused leave to Appeal and, on 17 February 2009, the case was transferred to the Police Authority to enforce the deportation order.", "24. Finally, on 17 April 2009 the applicant lodged a third application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.", "B. Proceedings and new submissions before the Court", "25. On 28 April 2009 the applicant lodged the case with the Court and on 11 May 2009 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice", "26. In her observations of 4 November 2009 the applicant submitted that already before leaving Afghanistan, she had told her mother about her problems with her husband. In October 2005 the applicant had called home and told her mother that she and her husband had separated. The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband. She had then talked to her father who became furious and shouted that she brought dishonour to the family. The conversation had ended because the applicant ran out of money on her telephone card. The father had called her back the following day to try to persuade her to change her mind and talked about honour, shame and her disgracing the family. In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her. She was no longer his daughter. After the conversation, the applicant had called her uncles in Kabul and Mazar-e Sharif to have their support but they had both repeated the words of her father. That had been the last conversation between the applicant and her relatives.", "27. With the applicant's observations of 4 November 2009 she also enclosed a letter of 31 October 2009 “to whom it may concern” by a named Swedish man who confirmed having a relationship with the applicant. He stated, inter alia, that they had met for the first time in the autumn of 2007, that their relationship had started in February 2008 and that they had been living together in his apartment since April 2009.", "28. In reply the Government observed on 15 January 2010 that the facts now presented by the applicant in her observations were never submitted to the Swedish authorities in spite of the fact that these could be considered relevant to her claim for asylum. Notably, regarding the claim that the applicant and the said Swedish man have been living together since April 2009, the Government noted that the applicant has still not changed her registered mail address in Fagersta although her new residence is apparently far away." ]

[ "II. RELEVANT DOMESTIC LAW", "29. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act ( Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act ( Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.", "30. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).", "31. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).", "32. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).", "33. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.", "III. RELEVANT INFORMATION ON AFGHANISTAN", "34. In so far as relevant, the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers of July 2009, which replaced the previous Guidelines from December 2007, set out the following:", "In view of the serious and widespread human rights violations and ongoing armed conflict in many parts of the country, UNHCR considers that a significant number of Afghan asylum seekers are in need of international protection. Applications by Afghan asylum-seekers should be determined on an individual basis, according to fair and efficient refugee status determination procedures, including the right of appeal. Favourable consideration should be given to the specific groups identified in these Guidelines, including, but not limited to (i) persons perceived as contravening Sharia law and members of minority religious groups; (ii) ethnic minority groups; (iii) persons associated with or perceived as supporting the Government, including civil society members; (iv) actual or perceived supporters of armed anti-Government groups; (v) journalists; (vi) persons associated with the People's Democratic Party of Afghanistan or other left-aligned political parties; (vii) women; (viii) children; and (ix) persons at risk of becoming victims of blood feuds.", "UNHCR further considers that an internal flight or relocation alternative (IFA/IRA) is not available within certain parts of Afghanistan due to a number of factors. If, however, the availability of an IFA/IRA must be assessed as a requirement in a national eligibility procedure, it should be examined carefully and on a case-by-case basis, in light of the requisite relevance and reasonableness analyses, taking into account the individual circumstance of the case, and bearing in mind the cautions in these Guidelines. Even in those exceptional cases where relocation to an accessible area might be considered as viable to eliminate the existing threat, such area can only be a reasonable alternative in cases where the claimant has strong family, social or tribal links in the area of displacement, permitting relocation without undue economic and social hardship. ...", "(g) Women", "Women are at particular risk of ill-treatment if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. Ill-treatment occurs in a variety of forms and may be inflicted by several actors, including family members. Such treatment includes domestic violence, excessive custodial sentences and degrading and inhuman treatment. While there is a limited number of women holding public office, women's rights continue to be curtailed, restricted and systematically violated. In April 2009, for instance, a Shiite Personal Status Law was passed by Parliament and signed by President Karzai. The law requires, inter alia, women to comply with their husbands'sexual requests, and to obtain permission to leave the home, except in emergencies. The code has yet to be implemented and is currently under review as a result of international pressure.", "Cases of physical violence perpetrated against women and girls in Afghanistan have increased by about 40 % in the period from March 2007 to March 2008. Existing figures indicate that currently up to 80 % of Afghan women are affected by domestic violence. Human rights organizations report an overall increase of cases of self-immolation and other forms of suicide. The phenomenon of female self-immolation is commonly linked to the pervasive societal discrimination against women. Survivors of sexual violence generally lack basic support mechanisms such as trauma counselling and medical treatment, as well as judicial capacity for forensics analysis. The social stigma attached to the reporting of gender-based violence in Afghanistan often prevents victims from seeking physical or psychological treatment.", "Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatization to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted.", "Unaccompanied women or women lacking a male “tutor” (mahram) continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity.", "Forced and child marriages continue to be widely practiced in Afghanistan, and can occur in a variety of forms. Statistics show that nearly 60 % of girls in Afghanistan are married before they reach 16 years old. Most marriages continued to be arranged by families. However, more coerced forms include'sale'marriage, that is, girls sold for a fixed quantity of goods, cash or simply to settle a family debt; bad dadan, a tribal form of dispute-settling in which the offending family offers one girl for marriage into the wronged family, for instance to settle a blood debt; and badal, when two families exchange their daughters in an attempt to minimize marriage costs.", "Furthermore, women's rights activists face threats and intimidation, particularly if outspoken about women's rights, the role of Islam or the behaviour of commanders. In areas under the control of armed anti-Government groups, there are growing indications that women face systematic societal discrimination. For example, a significant number of female medical graduates is systematically refusing to work in rural areas, due to the fear of being targeted by insurgents. These developments affect women's access to health in a disproportionate way.", "Access to education for girls is also severely curtailed. According to the Ministry of Education and aid agencies over five million school-age children (three million of them girls) have been deprived of education as a consequence of conservative customs, poverty, lack of education facilities and a culture of gender discrimination.", "The deterioration of the security situation has also had a detrimental effect on education. Armed anti-Government groups have continued their systematic attacks on schools, teachers, pupils (particularly schoolgirls) and parents. According to the Afghan Ministry of Education (MoE), more than 600 primary, secondary and high schools closed due to such attacks. Up to 80 % of schools are closed in the four southern provinces of Helmand, Kandahar, Zabul and Urozgan, with Helmand Province having only 54 schools, primarily for boys, functioning, compared to 223 schools open in 2002. Consequently, between 230,000 to 300,000 students have been deprived of an education in 12 provinces, according to MoE officials. Girls'schools are increasingly a target of attacks. Some 50 % of security incidents at schools across the country were specifically directed against girls'schools despite the fact that they represent only 14.8 % of the total number of primary, secondary and high schools in the country. Furthermore, female teachers are specifically targeted and higher bounties are offered for killing them. In November 2008, in a widely reported attack in Kandahar, 12 students and four teachers, all female, were sprayed with acid and suffered severe injuries.", "Given the pervasive societal discrimination and the widespread sexual and gender based violence, Afghan women and girls, particularly those living in areas affected by the armed conflict or under the de facto control of armed anti-Government groups, may be at risk of persecution depending on their individual profile and circumstances. Failure to conform to conventional roles or transgression of social and religious norms may expose women and girls to violence, harassment or discrimination in Afghanistan. As such, women with particular profiles, including, but not limited to victims of domestic violence or other serious forms of violence, unaccompanied women or single heads of household, women with visible social or professional roles, such as journalists, human rights activists and community workers, may be at risk of persecution on the ground of membership of a particular social group. Where non-conformity with traditional roles is perceived as opposing traditional power structures, the risk of persecution may be linked to the ground of religion and/or political opinion. Furthermore, measures which restrict one's ability to earn a living so that survival is threatened, or severe limitations to accessing education or health services, may also amount to persecution.", "35. The US State Department Human Rights Report on Afghanistan for 2008, published on 25 February 2009 stated, inter alia :", "Women", "The law criminalizes rape, which is punishable by death, but under Shari'a, which the country's laws draw from and cannot conflict, the criminalization did not extend to spousal rape. Under Shari'a, a rape case requires a woman to produce multiple witnesses to the incident, while the man need simply claim it was consensual sex, often leading to an adultery conviction of the victim. Adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a \"moral\" offense. While the MOI reported 226 cases of rape during the year; however, the actual number of cases generally was believed to be much higher. Of the reported cases, 28 were charges of rape against females and 198 were of rape against males. The MOI reported 172 arrests in connection with rape cases. Statistics on convictions were unavailable. Rapes were difficult to document due to social stigma. Female victims faced stringent societal reprisal from being deemed unfit for marriage to being imprisoned. According to NGOs jail authorities frequently raped women imprisoned overnight in jail.", "The Afghan penal code criminalizes assault, and courts entered judgments against domestic abusers under this provision. According to NGO reports, hundreds of thousands of women continued to suffer abuse at the hands of their husbands, fathers, brothers, armed individuals, parallel legal systems, and institutions of state such as the police and justice system. Many elements of society tolerated and practiced violence against women. A Kabul women's shelter reported receiving 50 new cases of domestic violence victims a month from MOWA referrals. According to the shelter's report the weak economy and poor security contributed to the incidence of domestic violence. Authorities rarely prosecuted abusers and only occasionally investigated complaints of violent attacks, rape, or killings, or suicides of women. If cases came to court, the accused were often exonerated or punished lightly. The director of a women's shelter in Kabul noted domestic violence occurred in most homes but went largely unreported due to societal acceptance of the practice. Domestic violence usually consisted of beating women and children and, less often, burning women. During the year, the AIHRC initiated additional efforts to collect statistics on violence against women.", "There were at least 19 women's shelters across the country. The five shelters in Kabul were home to more than 100 women and girls. The Ministry of Women's Affairs (MOWA) and other agencies referred women to the centers, which were designed to give protection, accommodation, food, training, and healthcare to women escaping violence in the home or seeking legal support due to family feuds. According to the MOWA, as many as 20 women and girls were referred to the MOWA's legal department every day; however, space at the specialized shelters was limited. Women in need of shelter who could not find a place in the Kabul shelters often ended up in prison.", "The concept of women's shelters was not widely accepted in society, as many persons treated them with distrust and did not understand their utility. The director of one shelter stated she always referred to the location as a mediation centre, as \"shelter\" was considered a negative word. Policewomen trained to help victims of domestic violence complained they were instructed not to do outreach to victims but simply to wait for victims to show up at police stations. This significantly hindered their work, as reporting domestic violence was not socially accepted. UNAMA reported police leadership often did not provide female officers with equipment or vehicles necessary to do outside investigations. A Herat-based NGO, however, reported recently graduated women police officers there were active in crime investigation including investigating cases of domestic violence. During the year, a local NGO conducted four domestic violence trainings for 240 ANP officers in Kabul, including those working in ANP Family Response Units. The Family Response Units are staffed primarily by female police officers and address violence and crimes against women, children, and families. They offer mediation and resources to prevent future instances of domestic violence.", "Women continued to face pervasive human rights violations and remained largely uninformed about their rights under the law. Discrimination was more acute in rural areas and small villages. Women in urban areas continued to make strides toward greater access to public life, education, health care, and employment; however, the denial of educational opportunities during the continuing insurgency, as well as limited employment possibilities and the threat of violence, continued to impede the ability of many women to improve their situation.", "Societal discrimination against women persisted, including domestic abuse, rape, forced marriages, exchange of girls to settle disputes, kidnappings, and honour killings. In some rural areas, particularly in the south, women were forbidden to leave the home except in the company of a male relative ...", "According to a report released during the year by Womankind, 87% of women complained they were victims of violence, half of it sexual. According to the report, more than 60% of marriages were forced and, despite laws banning the practice, 57% of brides were under the legal marriage age of 16. The report stated many of these girls were offered as restitution for a crime or as debt settlement.", "Local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage. Several girls between the ages of 17 and 21 remained detained in Pol-e-Charkhi prison having been captured after fleeing abusive forced marriages.", "The AIHRC documented a total of 76 honour killings throughout the year; however, the unreported number was believed to be much higher. In September, according to a local NGO, an 18 year-old woman in Kapisa Province was killed by her brother because she had run away from a forced marriage. Reportedly, after the woman ran away to a Kabul women's shelter the Governor of Kapisa intervened in the case, sheltered her, and forced the woman's mother to return her to Kapisa, resulting in her death.", "Women occasionally resorted to self-immolation when they felt there was no escape from their situations. During the year the AIHRC documented 72 cases of self-immolation, in contrast to 110 cases in 2007. Other organizations reported an overall increase during the past two years. According to the AIHRC, almost all the women had doused themselves with gasoline and set themselves alight. In Herat Province, during the first six months of the year, the Herat city hospital alone recorded 47 cases of self-immolation, of whom 40 died. There have also been reports of relatives setting women on fire to create the appearance of self-immolation ...", "There is no law specifically prohibiting sexual harassment.", "Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system. Local family and property law were not explicitly discriminatory toward women, but in parts of the country where courts were not functional or knowledge of the law was minimal, elders relied on Shari'a and tribal custom, which generally were discriminatory toward women. Most women reported limited access to justice in tribal shuras, where all presiding elders were men; women in some villages were not allowed any access for dispute resolution. Women's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favourable to women ...", "36. The UK Home Office, Country of Origin Information Report on Afghanistan of 18 February 2009, states in paragraphs 23.27- 23.30 about divorce:", "Islamic Sharia and Constitution of the country have provided suitable rights for women and men, but practically and in some rules and practices of equality between men and women these rights are not ensured. Current legislation leaves women largely unprotected. A man can divorce his wife without due process. In the absence of officially enforced marriage and divorce registration women remain particularly open to abusive practices. A woman can remarry three months after divorce period (Edat). However, if challenged, she will have to provide witnesses to prove her divorce in court. The woman can initiate the divorce process if she has enough reasons to do so; accepted reasons among others include: her husband must be sick and it endangers her; her husband must fail to provide for the family; her husband must be absent for more than four years in the house or be sentenced for imprisonment of 10 years or more. In this case, the court will assign her mahr – divorce maintenance – and custody of girls until they reach their ninth birthday and boys until their seventh birthday.” (The Afghanistan Human Rights Commission report, December 2008).", "The Womankind report of February 2008 noted “Afghan civil law contains numerous provisions that protect women's human rights in the family, such as their right to divorce if they are being maltreated. While seldom enforced, existing law provides a basis from which to advocate for enforcement and education about women's human rights.” Further, “Women's choices regarding marriage and divorce remain circumscribed by custom and discriminatory laws ... ” (Freedom House, 2008) UNHCR's December 2007 paper concurred “ Women remain deprived of basic civil rights, including in cases of divorce, custody and with regard to inheritance rights.”", "Womankind also recorded that “Stigma and shame surround divorced women ... rendering them unmarriageable and subsequently, financially destitute. Polygamy is one of the few options available to divorced women, who have low social status but require a husband for financial dependence.” Also, “Women's economic dependence on male family members prevents them from seeking divorce or leaving abusive marriages.”", "An IRIN News article dated 16 July 2008 reported that “In Afghanistan sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances ... Every year hundreds of female sex workers are sent to prison for allegedly having'unlawful sexual relationships', according to women's rights activists ... ” However, high food prices, drought, unemployment and lack of socio-economic opportunities are pushing some women and young girls in northern Afghanistan into commercial sex work, women's rights activists and several affected women told IRIN ...", "37. The Human Rights Watch, in its report “ We Have the Promises of the World” of 6 December 2009, on women's rights in Afghanistan, details emblematic cases of ongoing rights violations in five areas: attacks on women in public life; violence against women; child and forced marriage; access to justice; and girls'access to secondary education. The summary set out, inter alia :", "Eight years after the fall of the Taliban, and the establishment of the Karzai government, Afghan women continue to be among the worst off in the world. Their situation is dismal in every area, including in health, education, employment, freedom from violence, equality before the law, and political participation ... The diminishing status of women's rights in Afghanistan came back into focus in March 2009 when the Shia Personal Status law, which was riddled with Taliban style misogyny, was passed by parliament and signed by President Hamid Karzai. The law regulates the personal affairs of Shia Muslims, including divorce, inheritance, and minimum age of marriage, but, as detailed below, severely restricts women's basic freedoms. ... the final outcome fell far short of expectations, apparently because President Karzai was intent on maintaining the electoral support of Shia fundamentalists. A month before the presidential election he issued by decree an amended version of the law which still includes articles that impose drastic restrictions upon Shia women, including the requirement that wives seek their husbands'permission before leaving home except for unspecified “reasonable legal reasons.” The law also gives child custody rights to fathers and grandfathers, not mothers or grandmothers, and allows a husband to cease maintenance to his wife if she does not meet her marital duties, including sexual duties. The furor over the Shia law highlighted the fragility of the gains made by Afghan women, human rights activists, and reform-minded politicians. The dominant political factions of Afghanistan remain ideologically hostile to many of the rights that many women have started to enjoy since the fall of the Taliban, such as freedom of movement, freedom to work, and the right to education. Many of the women interviewed for this report observed that the space for them to work as activists for change has diminished over the past few years, as the government has come to increasingly rely on conservative factions to maintain political control.", "Violence against Women: Violence against women in Afghanistan is endemic. A nationwide survey of 4,700 women, published in 2008, found that 87.2% had experienced at least one form of physical, sexual, or psychological violence or forced marriage in their lifetimes. The forms of violence include rape, physical violence, forced marriage, and “honour killings.” Too often the attitudes of those in government and the police reflect the misogynous views, rooted in cultural traditions - but increasingly rejected by younger generations of Afghans – that underlie some of the violence against women. As Dr. Soraya Sobhrang, Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (AIHRC), told us, “Police and judges see violence against women as legitimate, so they do not prosecute cases.” In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium that often still attaches to women who leave their houses without a male guardian, let alone women who seek protection from public authorities. In a 2008 study by the Women and Children Legal Research Foundation (WCLRF), only 15% thought that a woman disabled by violence should seek police help. For those who do seek help, many encounter lack of concern, if not outright hostility or abuse. Rape is not a crime in the Afghan Penal Code. Under the code, rapists can only be charged with “forced” zina, or adultery, which sometimes results in women also being prosecuted for zina. In a major achievement for civil society groups and women's rights activists, the president issued the Elimination of Violence Against Women law, which makes rape a crime. At the time of writing the law is being considered by parliament ...", "Access to Justice: An underlying problem is women's access to justice. Police training involves little or no training in gender based violence or women's rights, particularly as training has been increasingly focused on counter-insurgency and security skills rather than crime prevention, crime solving and community policing. Deeply entrenched cultural prejudices prevent many women accessing the police or the courts because of the fear of being stigmatized a “bad woman.” Women face discrimination and prejudice in police stations and the courts from officials who often do not know the law but penalize women according to customary law, which places great emphasis on notions of female “honour” and chastity. The majority of women in jail are charged with extramarital sex (zina) or with “running away”- something that is not a crime in Afghan law or Sharia but often reflects a conservative cultural view that sees women as property of fathers or husbands. One widely welcomed policy response to this was the creation of female-staffed “Family Response Units” (FRUs) in police stations. But, as detailed in this report, there are serious problems with the implementation of FRUs, including insufficient numbers of women police officers and inadequate training, mentoring, and facilities ...", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "38. The applicant complained that the enforcement of the deportation order to Afghanistan would be in violation of Article 3 of the Convention, which sets out:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "39. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "40. The Government noted that international reports confirmed that the general situation for women in Afghanistan was very difficult and that women who lacked a social network and the protection of a male person within the family or the extended family would be particularly exposed to the risk of having their human rights violated, although it appeared that the situation was slightly better in Kabul compared to rural areas.", "41. In the present case, however, they maintained that the applicant has failed to substantiate being at a real and concrete risk of being subjected to ill-treatment upon return to Afghanistan, either by Afghan authorities or by private individuals.", "42. They also noted that the applicant's identity was unsubstantiated and that her story was vague and lacking in detail and evidence and that her general credibility could be questioned.", "43. She had been particularly vague regarding her alleged extramarital relationship and failed to submit information thereon to the Swedish authorities during the domestic proceedings, except for the information that he was Swedish. That seemed especially peculiar since the applicant apparently met her new partner already in the autumn 2007 and information about that relationship could have been considered relevant to her claim for asylum. She has not provided any explanation to the domestic authorities as to why she omitted to furnish concrete information about the man and the relationship, including her alleged move to his address in April 2009. In any event there was nothing to indicate that the alleged extramarital relationship had come to the knowledge of the Afghan authorities, her family or her husband's family.", "44. Likewise, it was only in her observations of 4 November 2009 that the applicant explained how her family allegedly had rejected her after several telephone conversations in the autumn of 2005. However, that version of events was inconsistent with her statement to the Migration Board in her application of 13 October 2008 that she had not had any contact with her relatives since the summer of 2005. Moreover, the applicant's claim that her family had rejected her and that she had no social network or male protection in her home country was not supported by any evidence. It thus remained unsubstantiated that the applicant's family had repudiated her as also found by the Migration Court in its judgment of 19 March 2007.", "45. As to the submitted letter of 2 October 2008 from the Regional Office for the Baltic and Nordic countries of the UNHCR, the Government contended that it had little value as evidence since apparently the author has no personal knowledge of the applicant and the letter rather gave the UNHCR's views on the need for protection of Afghan female asylum seekers in general.", "46. Finally, in the Government's view the applicant was still married and it did not appear likely that the applicant's divorce attempt had come to the attention of the Afghan authorities. Moreover, it could not be ruled out that the applicant could obtain a divorce in Afghanistan. That was possible in some situations, for example if the husband was ill and that endangered the wife. They noted in this respect that it emerged in the domestic proceedings that the applicant's husband, X, suffered from mental health problems in the form of anxiety, sleeplessness and aggressive behaviour.", "47. The applicant maintained that, if returned from Sweden to Afghanistan, she would face a real risk of being persecuted, or even sentenced to death, because she had separated from her husband and was involved with another man. She further claimed that she risks being subjected to inhuman and degrading treatment in Afghanistan since her family has disowned her and she therefore would have no social network or male protection. In this respect, she invoked the poor security situation and the difficult humanitarian conditions for women in Afghanistan.", "48. The applicant believed that both her own family and her husband's family in Kabul had been informed about her attempt to dissolve the marriage in Sweden because the District Court had contacted her husband and been told on 17 July 2008 that he could not consent to a divorce.", "49. Furthermore she submitted that it was impossible to prove that her family had repudiated her. They did not want to have contact with her and it was difficult to see what submission might reasonably be expected to substantiate her account in this respect.", "50. Finally, the applicant refuted that she could be successful in divorcing her husband in Afghanistan because it would be impossible for her to gather two witnesses in her favour. However, even if she returned without her husband, as she intended to, she would still be at risk of treatment contrary to Article 3 of the Convention for the reasons invoked above.", "2. The Court's assessment", "51. The Court reiterates that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens ( Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-...).", "52. Whilst being aware of the reports of serious human rights violations in Afghanistan, as set out above, the Court does not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the applicant were to return to that country. The Court thus has to establish whether the applicant's personal situation is such that her return to Afghanistan would contravene Article 3 of the Convention.", "53. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker's submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005 and NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008). Where such evidence is adduced, it is for the Government to dispel any doubts about it.", "54. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Afghanistan, bearing in mind the general situation there and her personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108 in fine ).", "55. The Court firstly observes that women are at particular risk of ill ‑ treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. The UNHCR thus observed that Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatisation to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted.", "56. The Court notes in this respect that, albeit not legally, the applicant has resided in Sweden since 13 August 2004. The Court notes that already for that reason she may be perceived as not conforming to the gender roles ascribed to her by Afghan society, tradition and legal system. More importantly, however, in Sweden in vain she attempted to divorce her husband in 2008 and she has expressed a clear intention of not resuming the marriage. The Court points out that in cases like the one before it, the expression of an intention to divorce could be motivated by previous refusals by the authorities to grant asylum on the motive originally submitted. Thus, it must be expected that an applicant can demonstrate convincingly that the intention is real and genuine. The demand on the applicant may bear some resemblances with cases in which an asylum seeker in a receiving county has converted to Christianity from Islam and allege that the authorities in the Islamic home country have knowledge thereof and that this may result in serious negative life-threatening repercussions upon return ( see, for example, mutatis mutandis, Reza Mohammasi v. the Netherlands (dec.), no. 5140/06, 1 June 2006 and Razaghi v. Sweden (dec.), no. 64599/01, 11 March 2003). In the present case the applicant separated from her husband X in June 2005, approximately one year after the spouses had entered Sweden, and while the appeal against the Migration Board's first refusal of 29 March 2005 was pending before the Migration Board. It is not in dispute that she only saw her husband once thereafter and it is a proven fact that she tried in vain to divorce him in 2008. In these circumstances the Court finds that the applicant has demonstrated a real and genuine intention of not living with her husband. The case thus differs from, for example, S.A. v. The Netherlands (dec.), 3049/06, 12 December 2006 in which the applicant wife did not challenge her marriage, but alleged that her husband was not the father of her child, born only one year after the spouses had entered the Netherlands and requested asylum. The Court found in that case that the allegation was wholly unsubstantiated and noted that it had not resulted in the husband having undertaken any step indicating that he considered a separation, divorce or to challenge the paternity of the child, which could have imposed a risk to the applicant upon return to Afghanistan.", "57. The applicant is still formally married to X. He informed the District Court on 17 July 2008 that he opposed her wish to divorce. Thus, if the spouses are deported to Afghanistan, separately or together, X may decide to resume their married life together against the applicant's wish. The Court points out in this connection, for example, the Shiite Personal Status Law that was passed by Parliament and signed by the President in April 2009 which, although yet to be implemented, requires, inter alia, women to comply with their husbands'sexual requests and to obtain permission to leave the home, except in emergencies. It also notes the gloomy figures indicating that currently up to 80 % of Afghan women are affected by domestic violence (see paragraph 34). Moreover, according to the Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (see paragraph 37) the authorities see violence against women as legitimate, so they do not prosecute in such cases. In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium affecting women who leave their houses without a male guardian, let alone women who seek protection from public authorities.", "58. The Court points out that there are no specific circumstances in the present case substantiating that the applicant will be subjected to such treatment by X, but the Court cannot ignore the general risk indicated by statistic and international reports.", "59. The applicant maintained that she was also at risk of being persecuted, and even being sentenced to death, because she had an extramarital relationship. The Court observes, however, that the applicant failed to submit any relevant and detailed information thereon to the Swedish authorities during the domestic proceedings and that subsequently she has not even tried to explain why she failed to do so. Nevertheless, should X perceive the applicant's filing for divorce or other actions as an indication of an extramarital relationship, the Court notes that, according to the US State Department Human Rights Report on Afghanistan, (see paragraph 35) “adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a \"moral\" offense”. Moreover, the “local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage”. Furthermore, an IRIN News article dated 16 July 2008 maintained that “in Afghanistan, sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances.”", "60. Should the applicant succeed, as she intends, in living separated from her husband in Afghanistan, the Court notes the statement by the UNHCR (see paragraph 34) that “unaccompanied women or women lacking a male “tutor” continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity. ”", "61. The Government contended that the applicant's claim that her family had rejected her and that she had no social network or male protection in her home country was unsubstantiated. The Court notes, however, that although there are divergences as to whether the applicant's last contact with her family was in the summer of 2005 or in October 2005, no information has been presented which gives strong reasons to question the veracity of her submissions that she has had no contact with her family for almost five years, which does support her claim that she no longer has a social network or adequate protection in Afghanistan.", "62. Having regard to all of the above, in the special circumstances of the present case, the Court finds that there are substantial grounds for believing that if deported to Afghanistan, the applicant faces various cumulative risks of reprisals which fall under Article 3 of the Convention from her husband X, his family, her own family and from the Afghan society. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "63. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "64. The applicant claimed compensation for non-pecuniary damage in the amount of 5,000 Euros (EUR).", "65. The Government contested that claim.", "66. In view of the finding above (see paragraph 62) the Court dismisses the applicant's claim for non-pecuniary damage.", "67. The applicant did not claim any reimbursement for costs and expenses incurred before the Court, since the legal work was performed pro bono.", "III. RULE 39 OF THE RULES OF COURT", "68. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "69. It considers that the indication made to the Government under Rule 39 of the Rules of Court must remain in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention (see F.H. v. Sweden, no. 32621/06, § 107, 20 January 2009)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first applicant, Mrs Valentina Nikolaeva Bevacqua, is a Bulgarian national who was born in 1974 and at the relevant time lived in Sofia. In 2003 or 2004 she moved to Italy. The application is submitted by the first applicant on her own behalf and also on behalf of her son S. (“the second applicant”), a minor, who was born in 1997.", "6. The first applicant married Mr N. in 1995 and gave birth to S. in January 1997.", "7. Later, the relations between the spouses soured, Mr N. became aggressive and on 1 March 2000 the first applicant left the family home with her son and moved into her parents ’ apartment. On the same day the first applicant filed for divorce and sought an interim custody order, stating, inter alia, that Mr N. often used offensive language, battered her “without any reason” and did not contribute to the household budget.", "8. On 7 March 2000 a judge at the Sofia District Court examined the case file and fixed the date of the first hearing for 11 April 2000, without examining the request for an interim order.", "9. During the first two months following the separation, Mr N. visited his son every day and took him to his apartment on weekends, with the first applicant ’ s consent.", "10. On 11 April 2000 the District Court could not proceed with the examination of the divorce case as Mr N. had been taken ill and did not appear.", "11. On 6 May 2000 Mr N. did not bring S. home after a walk. He telephoned the first applicant and told her that his son would live with him. For the next six days he refused the first applicant ’ s requests for meetings or telephone conversations with her son.", "12. On 9 May 2000 the first applicant complained to the prosecuting authorities. The relevant prosecutor apparently gave instructions that Mr N. should be summoned and served with an official warning. That was not done until 22 June 2000.", "13. On 12 May 2000 the first applicant went to see her son at the kindergarten and took him to her home. In the evening Mr N. telephoned and then appeared outside the first applicant ’ s home. He was shouting and banging on the door, thus frightening the child and the first applicant. Mr N. eventually managed to enter the apartment, when the first applicant ’ s father came home. He allegedly hit or pushed the first applicant in the presence of her parents and the child. At one point Mr N. seized his son, but the first applicant was trying to hold him. The child was screaming. Eventually, Mr N. left with the child.", "14. On 18 May 2000 the first applicant visited a forensic doctor who noted a small bruise on her face and a bruise on her hip. On 25 May 2000 she filed a complaint with the District Prosecutor ’ s Office and enclosed the medical certificate.", "15. The first applicant also sought the help of a non-governmental organisation assisting female victims of domestic violence. She was offered the possibility to stay with her son in a hostel for such victims in Bourgas. On 25 May 2000 the first applicant collected her son from the kindergarten and travelled with him to Bourgas. She spent four days at the hostel there without disclosing her whereabouts to Mr N.", "16. Mr N. complained to the local Juveniles Pedagogic Unit (see paragraph 43 below), stating that the first applicant had abducted their son. The first applicant was summoned by the police. On 31 May 2000 she returned to Sofia and met the district juveniles inspector. She explained that she had been the victim of violence and that her son ’ s health was in danger because of the father ’ s violent behaviour. It appears that the inspector disbelieved the first applicant ’ s version of the events and allegedly insisted that she could be prosecuted for having abducted her son.", "17. On the same day in the evening Mr N. visited the first applicant in her home, allegedly threatened her and took their son away.", "18. On the following day, 1 June 2000, the juveniles inspector organised a meeting between the first applicant, her former husband and the child. According to the first applicant, the meeting lasted four hours. The child was asked whether he preferred to be with his mother or with his father. The meeting resulted in an oral agreement between the parents, according to which the child would live with his father for a month and then with his mother for another month. As a result of this agreement Mr N. withdrew his complaint for abduction.", "19. According to the first applicant, the agreement was only implemented for a very limited period.", "20. In the following days Mr N. allowed contacts between the first applicant and her son. On an unspecified date the child was ill and the first applicant took care of him in Mr N. ’ s apartment.", "21. On 13 June 2000 the first applicant appeared before the District Court for a hearing in the divorce proceedings. She was not legally represented. Mr N. did not appear. His lawyer was present. The first applicant stated that she wished to pursue her claims. The court did not examine the request for an interim order. The first applicant did not raise the issue. The court fixed a time-limit for reconciliation, as required by law, and adjourned the examination of the case until 29 September 2000.", "22. On 22 June 2000 the police summoned Mr N. and gave him an official warning in relation to the first applicant ’ s complaint of 9 May 2000 (see paragraph 12 above). As a result Mr N. allegedly became aggressive. On 28 June 2000, when he brought S. for a visit to his mother ’ s apartment, Mr N. reacted angrily to remarks by the first applicant and hit her in their son ’ s presence. On the next day the first applicant visited a medical doctor who noted a bruise on her left eyelid and a swollen cheek. She also reported pain in her right wrist.", "23. On 3 and 6 July 2000 the first applicant complained to the juveniles inspector at the local police station but was told that nothing could be done and that the dispute should be decided by the courts.", "24. In July and August 2000 the first applicant complained to the Ministry of the Interior, stating that they should assist her to obtain the custody of her child and that measures should be taken to protect her son, who was in danger because Mr N. was not taking care of him properly and was aggressive towards her. The first applicant complained that nothing had been done in this respect by the police. In August 2000 she received replies stating that the matter had been examined and that no unlawful conduct on the part of police officers had been noted. The police had done what they could and the remaining issues concerned a private dispute.", "25. On 11 September 2000 the first applicant filed written submissions with the District Court reiterating her request for an interim order. She informed the court about the relevant events since 6 May 2000 and referred to her complaints to the prosecuting authorities. She also stated that her son had been living in conditions which endangered his development. The first applicant sought leave to have two witnesses examined in this respect.", "26. On 12 September 2000 the judge examined the applicant ’ s submissions in private and decided that the request for an interim order should be dealt with on 12 October 2000, not at the hearing fixed for 26 September 2000.", "27. On 26 September 2000 the District Court held a hearing in the divorce proceedings. It noted the failure of the parties to reconcile and fixed a hearing on the merits for 14 November 2000.", "28. On 12 October 2000 the District Court held a hearing on the issue of interim measures. Mr N. requested that the files of the prosecutors and the police who had examined the first applicant ’ s complaints be admitted in evidence. He stated that those authorities had heard impartial witnesses – several neighbours – and had convincingly established that the first applicant ’ s allegations about physical violence were unfounded. The first applicant ’ s lawyer objected, stating that the files could be relevant to the merits of the divorce proceedings but should not be examined in the interim measures procedure. The court decided to adjourn the hearing until 14 November 2000 in order to allow the production of the prosecutors ’ files.", "29. On 14 November 2000 the District Court dealt with the request for an interim order. It heard one witness for each party. The first applicant ’ s father, who was heard as a witness, confirmed that Mr N. had been aggressive on two occasions and that quarrels often erupted between the child ’ s parents. A relative of Mr N. testified that he took good care of the child. The first applicant also presented a written opinion by a psycho-therapist working for the non-governmental organisation whose help she had solicited. The therapist described the first applicant ’ s visits to the centre for victims of domestic violence and stated that in her opinion the first applicant had suffered a strong emotional upset as a result of the behaviour of Mr N. and the authorities ’ passive attitude. Mr N. disputed the statements contained in the written opinion. The court decided that that was tantamount to contesting the authenticity of a document and invited the parties to adduce evidence in this respect. Having regard to the need to give the parties time to adduce such evidence and noting that the prosecutors ’ files concerning the applicants ’ complaints had not been transmitted to it, the District Court adjourned the matter until 12 December 2000. The hearing listed for 12 December 2000 was later adjourned on unspecified grounds.", "30. The next hearing was held on 13 February 2001. In relation to the proceedings concerning the authenticity of the psycho-therapist ’ s written opinion, the first applicant ’ s lawyer presented documents demonstrating that the non-governmental organisation for which the therapist worked had been registered in 1997. Mr N. ’ s lawyer stated that in accordance with legislation in force since 1 January 2001 non-governmental organisations needed re-registration. On that basis he objected to the admission in evidence of the written opinion of the psycho-therapist. The court interpreted that objection as a challenge to the authenticity of the registration documents and invited the parties to adduce evidence in that respect.", "31. At that point, the first applicant withdrew her request and asked the court to rule on the merits of the divorce claims, including the child custody claim. Thereupon, the court terminated the interim measures proceedings. It then heard two witnesses. A neighbour testified that she had heard the spouses quarrelling often in the past and had seen bruises on the first applicant ’ s body. The latter had complained that Mr N. battered her. A colleague of Mr N. testified that he had never seen him being aggressive. The court also admitted in evidence the prosecutors ’ files concerning the first applicant ’ s complaints submitted in 2000. As the parties sought leave to examine other witnesses, the court adjourned the hearing until 24 April 2001.", "32. From the summer of 2000 the first applicant could only see her son at his kindergarten as the visits to Mr N. ’ s home created tension. On 7 March 2001 she collected her son and brought him to her home. Mr N. complained to the prosecution authorities and the police and also wrote to the judge dealing with the divorce proceedings. As a result, on 19 March and 17 April 2001 the first applicant was summoned by the police and given official warnings. According to the first applicant, Mr N. also threatened her with physical violence but she kept the child. According to Mr N., on 11 March 2001 in the evening he was attacked by men hired by the first applicant, in her presence.", "33. The last hearing in the divorce proceedings was held on 24 April 2001. In accordance with the Child Protection Act (see paragraph 47 below), an expert of the newly created local Social Care Office gave an opinion after having studied the file and met the child. He reported that the child was afraid of his father as he had battered his mother and that the child preferred to live with his mother.", "34. By judgment of 23 May 2001 the District Court pronounced the divorce and found that both spouses had been responsible for the failure of their marriage. The court further considered that both parties had been good parents but that in view of the low age of the boy he needed his mother. Therefore, the first applicant obtained custody of her child and Mr N. was given visiting rights.", "35. Mr N. appealed, arguing that the allegations that he had been violent were untrue and that he had always cared better for his child.", "36. In the appeal proceedings the Sofia City Court held a hearing on 19 March 2002. It heard two witnesses who confirmed Mr N. ’ s aggressive behaviour.", "37. On 21 March 2002 the Sofia City Court upheld the lower court ’ s judgment but considered that there was ample evidence that Mr N. had been aggressive and had battered the first applicant during their marriage. Such behaviour was a bad example for a young boy to witness. The first applicant was therefore better suited to raise the child.", "38. On 18 June 2002 the first applicant visited Mr N. ’ s apartment, accompanied by two friends, to collect her belongings. Her former husband became aggressive and battered her. On the following day the first applicant visited a forensic doctor who noted bruises on her face, right arm and armpit and her left hip. She complained to the prosecution authorities, which by decisions of October and December 2002 and January 2003 refused to institute criminal proceedings against Mr N., noting that it was open to the first applicant to bring private prosecution proceedings, as the alleged injuries fell into the category of light bodily injuries." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "1. Interim measures in divorce proceedings", "39. In accordance with Article 261 of the Code of Civil Procedure, a court examining a divorce case shall order interim child custody measures upon request of a party to the proceedings.", "40. The Supreme Court has held that in principle no such measures should be ordered during the mandatory two-month reconciliation period except where the interest of the children so requires and, in particular, where delaying them may adversely affect the children ’ s development and upbringing (procedural decision no. 86 of 6 June 1973 in case no. 1518/73).", "41. Article 71 § 2 of the Family Code provides that disputes about child custody between parents living apart may be submitted for examination to the local district court. This provision concerns disputes that have not been submitted for adjudication in the context of divorce or other proceedings (argument from Article 95 of the Code of Civil Procedure ).", "2. Appeals against delays in the proceedings", "42. A party to pending civil proceedings may file an appeal against delays in the proceedings, in accordance with Article 217a of the Code of Civil Procedure. The appeal is examined by the President of the upper court, who may order specific measures to speed up the proceedings. It is unclear whether an appeal against delays may also be directed against delays in the examination of requests for interim measures.", "3. The Juveniles Pedagogic Units", "43. Sections 26 and 27 of the Antisocial Behaviour of Minors Act 1958, amended, set up Juveniles Pedagogic Units at municipal level. The Units are staffed by inspectors appointed by the Ministry of the Interior. Their task is to assist the prosecution authorities and the police in the investigation of offences committed by minors and also in the investigation of offences in which minors were victims. Juveniles Pedagogic Units have no power to issue binding orders on child custody and access issues.", "4. The Penal Code and the Code of Criminal Procedure", "44. Under Article 161, in conjunction with Articles 129 and 132 of the Penal Code, criminal proceedings in respect of “medium bodily injury” wilfully inflicted by a spouse, parent, child, brother or sister of the victim may only be instituted by the victim. According to Article 129(2), injuries having long-lasting repercussions on one ’ s health without being life-threatening or injuries that may be life-threatening but do not result in long-lasting repercussions are considered “medium bodily injuries”. Within the same category fall injuries causing long-lasting difficulties to the hearing, sight or limb movement, disfiguring of the face or other body parts, as well as injuries such as a broken jaw or teeth that cause difficulties in chewing and speaking.", "45. Under Article 161, in conjunction with Articles 130-132 of the Penal Code, criminal proceedings in respect of wilfully inflicted “light bodily injury” may only be instituted by the victim, except where a State official is involved or in cases of repeated offences. According to Article 130(1), injuries other than those considered as heavy or medium bodily injuries fall within the category of “light bodily injuries ”. The courts have held that facial bruises, a broken nose and head contusions without loss of consciousness are examples of light bodily injuries ( Supreme Court interpretative circular ППВС № 3, 27.11.1979).", "46. Under the Code of Criminal Procedure, where criminal proceedings are instituted by the victim, he or she acts as private prosecutor. The proceedings are discontinued if the victim fails to appear when summoned or abandons the case.", "5. The Child Protection Act 2000 and the Protection Against Domestic Violence Act 2005", "47. The Child Protection Act, which came into force on 17 June 2000, instituted a State Child Protection Agency and municipal Social Care Offices empowered, inter alia, to order protection measures in respect of children in danger. In accordance with the transitory provisions of the Act, the Agency and the Offices became operational not earlier than in February 2001, when the relevant regulations and instructions were adopted.", "48. The Protection Against Domestic Violence Act, which was enacted in March 2005, provides for administrative and policing measures in cases of domestic violence. In particular, the relevant court may issue injunctions to remove the perpetrator from the common home, ban him from approaching the victim ’ s home, workplace or place of social contacts, temporarily remove the child from the custody of the perpetrator and impose compulsory education programs. Failure to comply with the measures imposed by the court may result in fines, arrest and prosecution.", "III. RELEVANT INTERNATIONAL MATERIAL", "1. Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe", "49. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that Member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.", "50. The Committee of Ministers recommended, in particular, that Member states should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, handicapped or dependent victims, or abuse of the position of the perpetrator. The recommendation also stated that Member states should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’ s rights are protected during proceedings.", "51. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.", "2. Other material", "52. The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4(c), urges States to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons”.", "53. In his third report, of 20 January 2006, to the Commission on Human Rights of the UN Economic and Social Council (E/CN.4/2006/61), the Special Rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”. This conclusion was based mainly on analysis of developments in the case-law of several international bodies, including this Court (reference to Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII ), the Inter-American Court of Human Rights (reference to the case of Velasquez Rodriguez v. Honduras ), the Inter-American Commission of Human Rights (reference to Report no. 54/01, Case 12.051, Maria da Penha Maia Fernandes (Brazil) ) and the committee monitoring the UN Convention on the Elimination of All Forms of Discrimination against Women (reference to the case of A.T. v Hungary – 2005).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "54. Relying on Articles 3, 8, 13 and 14, the applicants complained that the authorities failed to take the necessary measures to secure respect for their family life and failed to protect the first applicant against the violent behaviour of her former husband.", "55. The Court considers that in the particular circumstances of the present case these complaints fall to be examined under Article 8 of the Convention which reads, in so far as relevant :", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "56. The Government stated, inter alia, that the first applicant had not exhausted all domestic remedies as she had not insisted on the examination of her interim measures application, had not substantiated it before 11 September 2000 and had eventually withdrawn it. In these circumstances the complaints before the Court were abusive as the first applicant had voluntarily abandoned her request. The Government also stated that the first applicant could have filed an action under Article 71 § 2 of the Family Code and requested measures under the Child Protection Act.", "57. The applicants replied that the urgency of the matter had been obvious as the first applicant had referred, in her divorce claim and interim measures application of 1 March 2000, to physical and psychological abuse by her husband. Since the very purpose of interim measures was the swift resolution of conflicts, it had been unnecessary for her to insist on rapid examination. The withdrawal of the application had been the result of the District Court ’ s dilatory approach, which had rendered the interim procedure futile. The applicants further stated that despite the obvious need for urgent measures, assistance had been refused by the police and the prosecution authorities on the basis that the events had concerned a private dispute. Article 71 § 2 of the Family Code was inapplicable and the Child Protection Act had not been implemented in practice at the relevant time.", "58. The Court notes at the outset that the Government have not raised an objection concerning the first applicant ’ s failure to submit a complaint against delays under Article 217a of the Code of Civil Procedure. It is not necessary to examine, therefore, whether this was a remedy to be exhausted in the particular circumstances of the present case.", "59. The Court considers that the first applicant, having filed an application for interim custody measures, was entitled to its examination without unjustified hindrance. Having regard to the first applicant ’ s explanation and the facts of the case, the fact that she withdrew her request for interim measures after the accumulation of the impugned delays cannot lead to the conclusion that she failed to exhaust domestic remedies and cannot suggest abusive behaviour on her part. The Court also observes that Article 71 § 2 of the Family Code was inapplicable (see paragraph 41 above) and that, apparently, at the relevant time the mechanisms provided for in the Child Protection Act had not yet been in place.", "60. The Court also notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds and, therefore, declares them admissible", "B. Merits", "1. The parties ’ submissions", "61. The Government took the view that the first applicant had presented the relevant facts out of their context. In reality, the case concerned querulous allegations exchanged between spouses in the course of divorce proceedings. Such allegations were a common occurrence and were often made with the aim to achieve a favourable outcome of the proceedings. Both the first applicant and her husband had filed numerous complaints against each other seeking the assistance of the police and the prosecution authorities without good reason.", "62. The Government also stated that, in reality, no particular danger for the applicants had existed. At the relevant time the first applicant had lived separately from her husband. She had been responsible, on a par with her former husband, for the fact that her child, the second applicant, had become the witness of his parents ’ conflicts.", "63. The applicants submitted, relying on Articles 3, 8, 13 and 14, that the relevant law according to which the burden to prosecute for light bodily injury rested with the victim was incompatible with the State ’ s duty to provide protection against domestic violence and was discriminatory in that the law ’ s shortcomings impacted disproportionately on women. Bulgarian law was deficient in that it treated domestic violence as a trivial family matter that did not warrant public prosecution. By characterising domestic violence as a private act, Bulgarian law did not ensure that the victims – who were often vulnerable – would be able to institute proceedings. In particular, the first applicant could not be expected to bring private prosecution proceedings against Mr N. as that would have meant acting as prosecutor and investigator in a highly sensitive matter and risking a violent reaction by her husband. Furthermore, the authorities not only refused to assist her in prosecuting her husband but even charged her with abduction when she sought refuge, together with her son, in a shelter for abused women.", "2. The Court ’ s assessment", "(a) Relevant principles", "64. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves. Children and other vulnerable individuals, in particular, are entitled to effective protection (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, pp. 11-13, §§ 23-24 and 27, and August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003).", "65. The right to respect for one ’ s family life under Article 8 includes a parent ’ s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation – albeit not absolute – on the national authorities to take such action (see, as a recent authority, Šobota ‑ Gajić v. Bosnia and Herzegovina, no. 27966/06, § 51, 6 November 2007, with further references). As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person ’ s physical and psychological integrity. Furthermore, the authorities ’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include, in certain circumstances, a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see the judgments cited in paragraph 85 above and, also, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998 ‑ VIII, §§ 128-130, and M.C. v. Bulgaria, no. 39272/98, ECHR 2003 ‑ XII ). The Court notes in this respect that the particular vulnerability of the victims of domestic violence and the need for active State involvement in their protection has been emphasised in a number of international instruments (see paragraphs 49-53 above).", "(b) Application to the facts of the case", "66. The Court ’ s task is to examine whether the authorities ’ response to the situation for which the first applicant, acting on her own behalf and on behalf of her son, the second applicant, sought their assistance was in line with their positive obligations flowing from Article 8.", "67. The help of the relevant authorities was solicited in a situation where both the first applicant and her husband, who had separated and were divorcing, wished to obtain the custody of their three-year old son and seized the boy repeatedly from each other, including by using physical force. In addition, Mr N., the father, allegedly assaulted the first applicant (see paragraphs 7-25 and 38 above). The first applicant requested interim custody measures and sought assistance in relation to her husband ’ s aggressive behaviour.", "(i) Examination of the interim measures application", "68. The Court observes that because of its very nature and purpose, an application for interim custody measures must normally be treated with a certain degree of priority, unless there are specific reasons not to do so. No such reasons appear to have existed in the applicants ’ case. Indeed, the interim custody measures application was based, inter alia, on allegations of aggressive behaviour and thus clearly called for priority examination (see paragraph 7 above).", "69. It is true that the allegations made by the first applicant, as well as all relevant circumstances regarding the child ’ s situation needed verification which could not be done without the collection of evidence. Therefore, the applicants could not expect to obtain a decision immediately upon submission of the interim measures application.", "70. The evidence is, however, that the District Court did not treat the matter with any degree of priority and, during the first six months, ignored the issue of interim measures. In June 2000 it started examining the divorce claim instead of dealing with the temporary custody arrangements first (see paragraphs 8, 10 and 21 above).", "71. This delay was the result of the domestic courts ’ practice to adjourn custody issues in divorce proceedings pending the expiry of the statutory reconciliation period (see paragraphs 21, 27 and 40 above). While this practice had the legitimate aim to facilitate reconciliation, the Court considers that its automatic application in the applicants ’ case despite concrete circumstances calling for expedition was unjustified.", "72. Furthermore, after 11 September 2000, when the first applicant informed the District Court about the scenes which the child had had to witness earlier that summer, it must have become obvious for the judge dealing with the case that the second applicant, three years old at the time, was adversely affected by the failure of his parents, who lived apart, to agree on temporary custody arrangements pending the divorce proceedings. Furthermore, Mr N. obstructed the possibility for contact between the first applicant and her child, the second applicant (see paragraphs 11- 32 above). It must have been obvious, therefore, that prompt measures were needed, in particular, in the child ’ s interest.", "73. The Court considers that in these circumstances, the authorities ’ duty under Article 8 to secure respect for the right to private and family life of both applicants – parent and child – required the examination of the interim measures application with due diligence and without delay. They were also under a duty to secure the enjoyment of both applicants ’ right to normal contacts between them.", "74. However, the District Court continued to adjourn the examination of the interim custody application repeatedly, sometimes for reasons so far removed from the substance of the dispute – for example, to verify the registration of a non-governmental organisation (see paragraphs 25-30 above) – that at least one of those adjournments can fairly be described as arbitrary. Also, the District Court made no effort, as it could have, to collect all relevant evidence in one hearing. It also allowed long intervals between the hearings (see paragraphs 28-33 above).", "75. The Court also considers that the first applicant ’ s decision to withdraw her request for interim measures in February 2001 was not unreasonable in the circumstances, having regard to the unjustified delays in its examination (see paragraphs 8, 10, 21 and 25-31 above).", "76. In sum, the District Court ’ s handling of the interim measures issue for a period of approximately eight months (June 2000 – February 2001) is open to criticism as regards its insufficient attention to the need for particular expedition during that period. This attitude, during a period of tense relations between the first applicant and her husband that affected adversely the second applicant, a three-year old child at the time (see paragraphs 11, 13, 17 and 22 above), is difficult to reconcile with the authorities ’ duty to secure respect for the applicants ’ private and family life.", "(ii) The first applicant ’ s complaints about Mr N. ’ s aggressive behaviour", "77. The Court notes that the medical certificate concerning the first incident complained about was issued several days after the events and has, therefore, less evidential value (see paragraphs 13 and 14 above).", "78. There is no doubt about the evidential value of the second medical certificate, which recorded a bruise on the first applicant ’ s eyelid and her swollen cheek following the incident of 28 June 2000 (see paragraph 22 above). The Court also notes that Mr N. ’ s violent behaviour, albeit during a period of time prior to the events at issue, was established by the Sofia City Court in its judgment of 21 March 2002 (see paragraph 37 above).", "79. On the basis of these facts the Court is satisfied that the first applicant ’ s complaints about Mr N. ’ s behaviour concerned her physical integrity and well-being and that, having regard to the nature of the allegations and the facts of the case as a whole, the question about the adequacy of the authorities ’ reaction may give raise to an issue under Article 8 of the Convention. Moreover, in the concrete circumstances this question also concerned the second applicant ’ s right to respect for his private life, as he could not effectively exercise his right to regular contacts with the first applicant and, whenever such contacts materialised, was adversely affected by the incidents he had to witness (see paragraphs 11-32 above).", "80. The Court observes that the police and the prosecutors, to whom the first applicant turned for help, did not remain totally passive – Mr N. was issued with a police warning and an attempt was made to broker an informal agreement between the parents, albeit with little effect in practice (see paragraphs 12, 14 and 16-20 above).", "81. Furthermore, the Bulgarian legal system provided legal means whereby the first applicant could seek establishment of the facts, as well as Mr N. ’ s punishment, and compensation – it was open to her to bring private prosecution proceedings and a civil claim for damages against Mr N. (see paragraph 44 above).", "82. Without overlooking the vulnerability of the victims in many cases of domestic violence, in this particular case the Court cannot accept the applicants ’ argument that her Convention rights could only be secured if Mr N. was prosecuted by the State and that the Convention required State-assisted prosecution, as opposed to prosecution by the victim, in all cases of domestic violence. While the Court cannot exclude that the relevant Bulgarian law, according to which many acts of serious violence between family members cannot be prosecuted without the active involvement of the victim (see paragraphs 44-46 above), may be found, in certain circumstances, to raise an issue of compatibility with the Convention, its task is limited to the examination of the particular facts before it. It is not the Court ’ s role to replace the national authorities and choose in their stead among the wide range of possible measures that could suffice to secure respect for the applicants ’ private and family life. Within the limits of the Convention, the choice of the means to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the domestic authorities ’ margin of appreciation.", "83. On the basis of the concrete facts in this case, the Court considers that certain administrative and policing measures – among them, for example, those mentioned in Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe or those introduced in Bulgarian law by the Domestic Violence Act 2005 (see paragraphs 48-53 above) – would have been called for. However, at the relevant time Bulgarian law did not provide for specific administrative and policing measures and the measures taken by the police and prosecuting authorities on the basis of their general powers did not prove effective. The Court also considers that the possibility for the first applicant to bring private prosecution proceedings and seek damages was not sufficient as such proceedings obviously required time and could not serve to prevent recurrence of the incidents complained of. In the Court ’ s view, the authorities ’ failure to impose sanctions or otherwise enforce Mr N. ’ s obligation to refrain from unlawful acts was critical in the circumstances of this case, as it amounted to a refusal to provide the immediate assistance the applicants needed. The authorities ’ view that no such assistance was due as the dispute concerned a “private matter” was incompatible with their positive obligations to secure the enjoyment of the applicants ’ Article 8 rights.”", "iii. Conclusion", "84. In the Court ’ s view, the cumulative effects of the District Court ’ s failure to adopt interim custody measures without delay in a situation which affected adversely the applicants and, above all, the well-being of the second applicant and the lack of sufficient measures by the authorities during the same period in reaction to Mr N. ’ s behaviour amounted to a failure to assist the applicants contrary to the State positive obligations under Article 8 of the Convention to secure respect for their private and family life.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "85. The applicants complained of the length of the custody proceedings. Article 6 § 1 reads, in so far as relevant:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”", "A. Admissibility", "86. The Government considered that the complaint was abusive and inadmissible for failure to exhaust all domestic remedies as the first applicant had withdrawn her request for interim measures. The applicants disagreed.", "87. The Court notes that the Government have not raised an objection concerning the first applicant ’ s failure to submit a complaint against delays under Article 217a of the Code of Civil Procedure (see paragraph 42 above). It is not necessary to examine, therefore, whether this was a remedy to be exhausted in the particular circumstances of the present case.", "88. In the Court ’ s opinion, the fact that the first applicant withdrew her request for interim measures has no bearing on the question of exhaustion of domestic remedies in respect of the length of the proceedings, which concerned the merits of the dispute. Furthermore, it does not consider that the application was abusive.", "89. The Court also notes that the applicants ’ complaint under Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "90. The Government stated that the District Court had proceeded with reasonable expedition. All adjournments had been justified as the parties, including the first applicant, had sought to adduce evidence. Moreover, the first applicant had objected to the admission of relevant evidence. The applicants replied that the dilatory approach of the District Court had caused unjustified delays in the resolution of the custody dispute.", "91. The Court observes that the period to be taken into consideration began on 1 March 2000 and ended on 21 March 2002. It thus lasted two years and three weeks for two levels of jurisdiction.", "92. The Court is mindful that in cases relating to civil status, special diligence is required in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life ( Laino v. Italy [GC], no. 3158/96, § 18, ECHR 1999-I). It has examined above, in the context of Article 8, the effects of the delays in the examination of the first applicant ’ s request for interim custody measures. The issue under Article 6 § 1 is different as it concerns the examination of the merits of the civil case and the question whether that was done within a reasonable time.", "93. The Court, having regard to the relevant criteria as established in its case-law (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII) and taking into consideration, in particular, the nature of the proceedings but also their overall length which was far from being unreasonable as such and the fact that the examination of witnesses and collection of other evidence inevitably required time, considers that the child custody dispute was determined within a reasonable time as required by Article 6 § 1 of the Convention. It follows that there has been no violation of that provision.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "94. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "95. The applicants claimed 300,000 euros (EUR) in respect of non-pecuniary damage for the prolonged custody proceedings, the repeated acts of violence by Mr N. and the indifference of the authorities. The first applicant submitted that as a result of the violations of her rights her life in Bulgaria became so unbearable that she moved to Italy with the second applicant.", "96. The Government did not comment.", "97. The Court notes that the authorities cannot be held responsible for Mr N. ’ s behaviour and the resulting damage to the applicants. It considers, however, that the applicants have undoubtedly suffered anguish and distress on account of the authorities ’ failure to undertake sufficient measures to secure respect for their private and family life. Having regard to the relevant facts of the case and deciding on an equitable basis, the Court awards EUR 4 ,000 jointly to the applicants.", "B. Costs and expenses", "98. The applicants claimed EUR 4,650 in respect of legal fees for 93 hours of work on the proceedings before the Court at the hourly rate of EUR 50. They also claimed EUR 186 for courier expenses and EUR 418 for translation costs. The claims were supported by time sheets, legal fees agreements and courier receipts. The total sum claimed was EUR 5,254.", "99. The Government did not comment.", "100. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the circumstances of the present case, regard being had to the information in its possession and the above criteria, and also taking into consideration the fact that part of the applicants ’ complaints were rejected, the Court considers it reasonable to award the sum of EUR 3, 0 00 covering costs under all heads.", "C. Default interest", "101. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1979 and lives in Z.", "1. Background to the case", "5. On 21 April 2001 the applicant married B and on 14 May 2001 a daughter, C, was born of the marriage. On 13 December 2005 the applicant brought a civil action in the Z. Municipal Court ( Općinski sud u Z. ), seeking a divorce from B. On 7 November 2006 the court dissolved the marriage of the applicant and B.", "6. For the purposes of criminal proceedings instituted against him in 2003, B, who was still the applicant's husband at the time, underwent a psychiatric examination. The relevant part of the report drawn up by two psychiatrists on 6 December 2004 indicated that B had been captured during the Homeland War and detained in a concentration camp from 3 April to 14 August 1992, where he had been tortured and had sustained serious bodily injuries. It also indicated that since 1992 he had been suffering from mental disorders such as anxiety, paranoia, epilepsy and post-traumatic stress disorder (PTSD).", "The relevant part of the report reads:", "“The patient is primarily an emotionally immature person who shows symptoms of chronic PTSD (lowered tolerance of frustration, egocentrism, latent aggressiveness, a tendency towards depressive reactions in stressful situations, as well as a worsening of his condition and impaired social functioning, in particular in family life).", "... ”", "2. Criminal proceedings against B on charges of violent behaviour within the family", "7. On 21 November 2005 B was arrested and detained on suspicion that he had committed the criminal offence of violent behaviour within the family. On 20 December 2005 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of violent behaviour within the family. The indictment alleged that from 12 November 2003 to 21 August 2005 B had verbally insulted and threatened the applicant, prevented her from leaving the house and physically assaulted her; on 12 November 2003 he had physically assaulted her by punching her in the belly, throwing her on the floor and continuing to hit and kick her in the body and head; on 7 August 2005 he had hit the applicant in the face, back and hands, causing lacerations; and on 21 August 2005 he had kicked her in the leg.", "8. On 20 December 2005 B was released, after his mother gave a statement saying that she would immediately take B to their house in P. However, after having been released, he continued abusing the applicant and therefore on 9 January 2006 the applicant, together with C, moved to a women's shelter in Z. (hereinafter “ the shelter”) run by a non-governmental organisation.", "9. The first hearing scheduled before the Z. Municipal Court for 29 March 2006 was adjourned because B did not appear. The second hearing was held on 25 April 2006.", "10. On 22 May 2006 the Z. State Attorney's Office extended the indictment to the criminal offence of neglecting and molesting a child or a minor. The extended indictment alleged that between November 2003 and February 2006 B had continually abused the applicant, both verbally and physically, in front of their daughter C, as well as using inappropriate language in respect of C, and had on several occasions punched and kicked C. Consequently, the case was transferred to the juvenile division ( odjel za mladež ) of the Z. Municipal Court.", "11. Further hearings scheduled for 7 December 2006 and 20 February 2007 were adjourned because B did not appear. A hearing scheduled for 17 April 2007 was adjourned until 9 May 2007 at the request of B's legal representative. At that hearing the judge ordered a psychiatric examination of B.", "12. The psychiatric examination established that B suffered from several mental disorders, including PTSD. The report of 2 January 2008 concluded:", "“In view of his mental state and the need for continued control and supervision, I would recommend that the court order a security measure of psychiatric treatment.", "Treatment may be carried out in a day hospital and without detention.", "This would enable him to follow a regular programme of therapy which would preserve his current relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment.”", "13. Another hearing was held on 12 March 2008, at which the expert psychiatrist was questioned. The expert stated that, owing to his difficult war experiences, B suffered from PTSD; he was a neurotic person with a slightly below-average intellectual level, reduced emotional capacity and a passive-aggressive personality. For those reasons his understanding of his own actions and his ability to control his impulses were significantly reduced. The expert repeated his recommendation that a security measure of compulsory psychiatric treatment be applied.", "14. A hearing scheduled for 29 April 2008 was adjourned until 4 June 2008 at the request of B's legal representative. That hearing was also adjourned because B did not appear. Hearings scheduled for 14 July and 3 October 2008 were adjourned because one of the witnesses, an employee of the Z. Social Welfare Centre, did not appear.", "15. At a hearing held on 19 November 2008 the applicant gave evidence and the court accepted proposals by both parties to call further witnesses. At a hearing held on 10 December 2008 four witnesses gave evidence. Further witnesses were called for the hearing scheduled for 21 January 2009, but the hearing was adjourned until 4 March 2009 since B and one prosecution witness did not appear. The hearing scheduled for 4 March 2009 was also adjourned because B did not appear and the hearing scheduled for 2 April 2009 was adjourned because neither B nor the prosecutor appeared.", "16. On 6 April 2009 judge M.B. asked to be allowed to step down from the case, since in March 2009 B had threatened her and she had reported B to the police (see paragraph 2 3 below). The president of the Z. Municipal Court granted her request on 21 April 2009.", "17. On 9 March 2009 B was admitted voluntarily to a psychiatric hospital, where he stayed until 6 April 2009. On 18 April he again went to a psychiatric hospital voluntarily. On 13 May 2009 the new judge ordered an additional psychiatric examination of B, in order to establish whether he was fit to stand trial. The expert concluded that, even though B's mental condition had deteriorated somewhat, he was still capable of standing trial. B left the hospital on 28 May 2009. Owing to the change of presiding judge in the proceedings, all the evidence had to be presented again. The first hearing in front of the new judge was held on 11 November 2009. A hearing scheduled for 14 December 2009 was adjourned until 13 January 2010 at the request of B's legal representative. A hearing was held on 1 6 February 2010. The criminal proceedings are still pending.", "3. Criminal proceedings against B on charges of making threats against the applicant and a police officer", "18. On 1 March 2006 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against the applicant on 1 March 2006.", "19. Further to that, on 30 June 2006 B was arrested and detained on suspicion of the criminal offence of making death threats against the applicant and a police officer, I.G. On 27 July 2006 the Z. State Attorney's Office indicted B on charges of making death threats against the applicant and I.G.", "20. On 8 September 2006 the two sets of proceedings were joined. On 16 October 2006 B was found guilty of three counts of making death threats and sentenced to eight months'imprisonment. The relevant extracts from the operative part of the judgment read:", "“B ...", "is guilty", "on the grounds that", "1. in the period from 29 May to 12 June 2006 ... on the official premises of the Social Welfare Centre, during meetings with minor child C, in order to incite feelings of fear in his former wife A, he whispered several times in her ear that she was a villain, that he was going to get rid of her, that she knew what he was capable of and that she would be swallowed up by darkness; on 14 June 2006 after the meeting with his minor child, he approached A on the street in front of the building of the Social Welfare Centre and whispered in her ear to beware of him and that he was going to get rid of her, which caused in A feelings of anxiety and fear for her own life ...", "2. during November 2005, in Z., on the premises of ... police station during an interview [with the police conducted] following a criminal complaint against him on allegations of having committed the criminal offence of violent behaviour within the family ... told a policewoman ..., in order to incite in her feelings of fear, that she brought shame upon the Croatian police, that she was conspiring against him with his former wife, that he knew the head of the police ... and Minister ... that these were her last days in police service and that he was going to get rid of her; on 19 January 2006 in the Zagreb Minor Offences Court during her testimony, he repeated that she brought shame upon the Croatian police, that she was conspiring against him with his former wife and that he was going to get rid of her, that he was not going to beat her but would have done with her and would remember her, which caused in her feelings of fear and of a risk to her own life ...", "3. on 21 November 2005 in Z., on the premises of ... police department, in order to incite in her feelings of fear and fear for her personal safety, called wife A several times on her cellular phone, telling her to withdraw her criminal complaint against him and, when she refused, told her that she would be swallowed up by darkness, to beware of him, that nothing was going to be as before and that he was going to put her in jail, which caused in A feelings of fear and fear for her personal safety ... ”", "21. On 24 October 2006 B was released from detention. On the same day the Z. Municipal Court issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres, and prohibiting contact with the applicant.", "22. Both the Z. State Attorney's Office and B lodged appeals against the first - instance judgment. On 22 May 2007 the judgment was upheld by the Z. County Court and thus became final. The judgment has not yet been enforced.", "4. Criminal proceedings against B on charges of making death threats against a judge and her minor daughter", "23. On an unspecified date the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against judge M.B. and her minor daughter (see paragraph 16 above). In the course of the proceedings B was arrested on 4 September 2009 and placed in pre-trial detention. On 19 October 2009 the Z. Municipal Court found B guilty as charged and sentenced him to three years'imprisonment and also ordered his compulsory psychiatric treatment. It seems that B is still in detention but no information has been provided as to where and whether any psychiatric treatment has been provided.", "5. Minor offences proceedings against B", "(a) The first set of proceedings", "24. On 7 January 2004 a police station lodged a request with the Z. Minor Offences Court ( Prekšajni sud u Z. ) for minor offences proceedings to be instituted against B. It was alleged that on 12 November 2003 B had assaulted the applicant and pushed her onto the floor, while kicking her in the body and head.", "25. At a hearing held on 8 June 2004 the applicant refused to give evidence and the proceedings were discontinued.", "(b) The second and third sets of proceedings", "26. On 14 November 2005 a police station lodged two requests with the Z. Minor Offences Court for minor offences proceedings to be instituted against B.", "27. In the first request, it was alleged that on 21 August 2005 B had verbally abused the applicant in front of C and had kicked the applicant in the leg. In a decision of 20 November 2006 the court found B guilty of domestic violence and imposed a fine in the amount of 2,000 Croatian kuna (HRK). There is no indication that this fine has been enforced.", "28. In the second request it was alleged that on 7 August 2005 B had first forcefully stopped the applicant from taking a bath and had hit her in the face, back and hands, causing lacerations. In a decision of 19 July 2007 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 7,000. However, this decision did not become final because the proceedings were discontinued on 28 November 2007, having become time-barred.", "(c) The fourth set of proceedings", "29. On 26 March 2006 the applicant lodged a request with the Z. Minor Offences Court under the Protection against Domestic Violence Act, for minor offences proceedings to be instituted against B. She alleged that since 29 March 2005 B had repeatedly assaulted her in front of C and caused her bodily injuries. These were described in the enclosed medical reports of 29 March and 16 August 2005 as contusions to the upper lip, right calf and right foot. The injuries were classified as minor bodily injuries. He had further threatened to kill her on 1 February 2006.", "30. The applicant also requested that protective measures be immediately imposed in the form of prohibiting access to her proximity, a prohibition on harassing or stalking her and compulsory psycho-social treatment. The applicant explained that B had been diagnosed with several mental disorders and had been undergoing treatment for years. She requested that the proceedings be instituted as a matter of urgency.", "31. The court held a preliminary hearing ( pripremno ročište ) on 27 June 2006, and subsequent hearings on 19 September 2006 and 26 September 2006. In a decision of 2 October 2006 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 6,000. A protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year was also ordered, as well as a protective measure of compulsory psycho-social treatment for a period of six months. The relevant extracts from the operative part of the decision read:", "“B", "is guilty", "on the grounds that", "on 1 February 2006 in their flat ... he threatened his wife with the following words :'I will kill you, you won't walk again ... you will never see your child again'in the presence of their minor child C ... which acts of violence he repeated on several subsequent occasions causing her physical injuries also ... ”", "32. On 30 October 2006 the applicant lodged an appeal, arguing that a protective measure in the form of a prohibition on harassing or stalking her and C and a protective measure of prohibition of access to C should have also been applied. She argued further that the measure of prohibition on access to her was not sufficiently precise because the court had failed to specify the date on which the measure was to be implemented. B also lodged an appeal.", "33. The appeals of B and the applicant were dismissed on 31 January 2007 by the High Minor Offences Court.", "34. B paid HRK 1,000 of the fine. The remaining fine in the amount of HRK 5,000 was supplemented by a prison term which B has not served. The Government explained that this was because Z. Prison was full to capacity. Furthermore, B has not undergone the compulsory psycho-social treatment because of the lack of licensed individuals or agencies able to execute such a protective measure. Execution of the sentence became time-barred on 31 January 2009.", "35. On 10 December 2007 the applicant informed the Z. Minor Offences Court that B had violated the restraining order and that in October 2007 he had hired a private detective who had come to her secret address where she had been living after leaving the shelter. The applicant reiterated her request for the application of an additional protective measure in the form of a prohibition on harassing and stalking a victim of violence. Her request was dismissed in a decision of the Z. Minor Offences Court of 12 December 2007 on the ground that she had not shown an immediate risk to her life. On 17 December 2007 the applicant lodged an appeal against that decision. The court dismissed her appeal on 7 January 2008. The applicant lodged a constitutional complaint against that decision on 18 February 2008. On 19 March 2008 the Constitutional Court found that it had no jurisdiction in the matter.", "6. Other relevant facts", "36. On an unspecified date the applicant and C left the shelter and went to live at a secret address. On 14 October 2007 an unknown man appeared at their door. The applicant's partner opened and the man at the door introduced himself as a private detective hired by B to find out the whereabouts of the applicant and C.", "37. The applicant moved out and lived in a nearby village for five months. According to the applicant, she was not able to find new accommodation elsewhere because all the landlords she had approached answered that they had no wish to deal with her violent ex-husband.", "38. In the course of the divorce proceedings between the applicant and B, the Z. Municipal Court issued an interim measure on 9 March 2006 and ordered contact between B and C twice a week for one hour on the premises of the Z. Social Welfare Centre, under expert supervision. The applicant did not comply with the decision, so on 23 May 2006 the court threatened her with a fine unless she complied with the order. After that decision the applicant complied with the interim measure until mid-June 2006.", "39. On 7 November 2006 the Z. Municipal Court dissolved the marriage of the applicant and B and also ordered B to pay child maintenance for C. It further prohibited B from contacting C. Both parties lodged appeals, and on 11 September 2007 the Z. County Court ( Županijski sud u Z. ) upheld the divorce but quashed the first-instance judgment concerning the amount of maintenance to be paid in respect of C and the ban on contact between B and C, and remitted the case in that part.", "40. On 7 October 2008 the Z. Municipal Court gave a fresh judgment on the amount of maintenance and ordered contact between B and C twice a month for two hours in a children's play centre in Z., under the expert supervision of the Z. Social Welfare Centre. Both parties lodged appeals, and on 27 January 2009 the Z. County Court upheld the part of the judgment concerning contact between B and C, quashed the decision on maintenance and remitted the case in that part. The proceedings on the child maintenance are still pending.", "III. COUNCIL OF EUROPE DOCUMENTS", "45. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.", "46. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape and abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising any abuse of position by the perpetrator. The Recommendation also states that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children's rights are protected during proceedings.", "47. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services." ]

[ "II. RELEVANT DOMESTIC LAW", "Relevant criminal law", "41. The relevant parts of the Criminal Code ( Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003, 105/2004, 84/2005 and 71/2006 ) read as follows:", "Article 75", "“ A security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence.", "A security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence.", "Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years.", "... ”", "BODILY INJURY", "Article 98", "“ Anyone who inflicts bodily injury on another person or impairs another person's health shall be fined or sentenced to imprisonment for a term not exceeding one year.”", "Article 102", "“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.”", "THREATS", "Article 129", "“(1) Anyone who threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.", "(2) Anyone who seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year.", "...", "(4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.”", "VIOLENT BEHAVIOUR WITHIN THE FAMILY", "Article 215a", "“A family member who by an act of violence, ill-treatment or particularly contemptuous behaviour places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.”", "Relevant minor offences law", "42. The relevant provisions of the Protection against Domestic Violence Act (Official Gazette no. 116/2003, Zakon o zaštiti of nasilja u obitelji ) provide:", "Section 1", "“This Act defines the term domestic violence, persons considered as family members within the meaning of this Act, the manner of protection of family members and the types and purpose of minor offences sanctions.”", "Section 2", "“(1) The provisions of the Minor Offences Act are to be applied in respect of minor offences in the sphere of domestic violence, unless otherwise provided by this Act.", "(2) All proceedings instituted under this Act shall be urgent.”", "Section 4", "“Domestic violence is:", "– any use of physical force or psychological pressure against a person's integrity;", "– any other act by a family member which might cause physical or mental suffering;", "– causing fear, fear for personal safety or harm to a person's dignity;", "– physical assault irrespective of whether it has caused injury;", "– verbal assaults, insults, cursing, calling names or other forms of serious harassment;", "– sexual harassment;", "– stalking and all other forms of harassment;", "– illegal isolation of a person or restricting his or her freedom of movement or communication with others;", "– causing damage to or destruction of property or attempting to do so .”", "Types and purpose of minor offences sanctions for protection from domestic violence", "Section 6", "“(1) Minor offences sanctions for protection from domestic violence are fines, imprisonment and protective measures.", "... ”", "Protective measures", "Section 7", "“A court may order the following protective measures against the perpetrator of an act of domestic violence", "( a) compulsory psycho-social treatment;", "( b) prohibiting access to the victim's proximity;", "( c) prohibition on harassing and stalking the victim of violence;", "( d) removal from flat, house or other living premises;", "( e) providing protection to a person exposed to violence;", "( f) compulsory treatment for addiction;", "( g) seizure of objects intended for or used in the commission of a minor offence.”", "Purpose of protective measures", "Section 8", "“The purpose of protective measures is to prevent domestic violence, to secure the necessary protection of the health and safety of a person exposed to violence and to remove the circumstances favourable to or capable of inciting the commission of a further minor offence.”", "Protective measure of compulsory psycho-social treatment", "Section 9", "“(1) A protective measure of obligatory psycho-social treatment may be imposed in respect of the perpetrator of an act of domestic violence in order to put an end to the violent behaviour of the perpetrator or where there is a risk that the perpetrator might reoffend against persons under section 3 of this Act.", "(2) The measure under paragraph 1 of this section shall remain in place as long as the reasons for which it has been imposed exist, but for no longer than six months.", "... ”", "Protective measure prohibiting access to the victim's proximity", "Section 10", "“(1) A protective measure prohibiting access to the victim's proximity may be imposed against a person who has committed an act of domestic violence where there is a risk that he or she might reoffend.", "(2) A decision imposing a measure prohibiting access to the victim's proximity shall define the places or areas covered as well as the distance of access.", "(3) The duration of a measure under paragraph one of this section shall not be shorter than one month or exceed one year.", "... ”", "Protective measure prohibiting the harassing and stalking of a victim of violence", "Section 11", "“(1) A protective measure prohibiting the harassing and stalking of a victim of violence may be ordered against a person who has committed violence by harassing or stalking and where there is a danger of his or her reoffending against persons under section 3 of this Act.", "(2) The measure under paragraph 1 of this section shall be ordered for a period from one month to one year.", "... ”", "Protective measure of providing protection to a person exposed to violence", "Section 13", "“(1) A protective measure of providing protection to a person exposed to violence may be ordered in respect of a person exposed to violence for his or her physical protection and to enable him or her to take from home his or her personal documents, clothes, money or other items necessary for everyday life.", "(2) The measure under paragraph 1 of this section shall include an order to the police to escort the person exposed to violence and protect that person while he or she takes his or her personal items and to escort him or her while leaving the home.", "(3) The duration of this measure shall be defined by the duration of implementation of the court order.”", "Ordering of protective measures", "Section 16", "“(1) Protective measures may be ordered at the request of a person exposed to violence or of the police, or of the court's own motion.", "(2) The protective measures under section 7 ( a) and ( g) shall be ordered by the court of its own motion.", "(3) The protective measures under this Act shall be ordered for a period which shall not be less than one month, nor shall it exceed two years from the date when a decision in minor offence proceedings has become final or from the date of completion of a prison term, if not otherwise provided under this Act.”", "Section 17", "“(1) The protective measures under section 7 ( b), ( c), ( d) and g) of this Act may be ordered independently even where no other sanction has been imposed.", "(2) The protective measures under paragraph 1 of this section may be imposed at the request of a person who has lodged a request for minor offences proceedings to be instituted, in order to remove a direct risk to the life of persons exposed to violence or other family members.", "(3) A court shall give a decision under paragraphs 1 and 2 of this section within 48 hours.", "... ”", "Responsibility for non-compliance with a protective measure", "Section 20", "“(1) The perpetrators of domestic violence are obliged to comply with the protective measure [ordered against them ].", "(2) Persons who do not comply with the protective measure ordered against them shall be punished for a minor offence by a fine which may not be less than 3,000 Croatian kuna or by at least forty days'imprisonment.", "... ”", "43. The relevant part of the Minor Offences Act ( Zakon o Prekršajima, Official Gazette no. 88/2002 ) reads:", "Section 30", "“A fine may be prescribed in respect of an individual in a minimum amount of 300 Croatian kuna and a maximum amount of 10,000 Croatian kuna ... ”", "Section 31", "“ The prison term may be prescribed for a minimum duration of three days and a maximum of thirty days. On an exceptional basis, in respect of the most serious minor offences, it may be prescribed for a maximum duration of sixty days.", "... ”", "44. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:", "PURPOSE OF A PRISON TERM", "Section 2", "“The main purpose of a prison term, apart from humane treatment and respect for the personal integrity of the person serving the prison term, ... is the development of his or her capacity to live after release in accordance with the laws and general customs of society.”", "INDIVIDUAL PRGRAMME FOR ENFORCEMENT OF A PRISON TERM", "Section 69", "(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety activities and measures aimed at adapting the time spent in detention to the character traits and needs of the prisoner and the type and possibilities of the particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.", "(2) The enforcement programme shall be designed by the prison governor on a proposal from the penitentiary or prison expert team ...", "(3) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... )", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 8 OF THE CONVENTION", "48. The applicant complained that by failing to afford her adequate protection against B's violence the State authorities had failed to comply with their positive obligations. She relied on Articles 2, 3 and 8 of the Convention, the relevant parts of which read :", "Article 2 – Right to life", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "... ”", "Article 3 – Prohibition of torture", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 – Right to respect for private and family life", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "49. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "50. The applicant argued that the State authorities had failed in their positive obligations under Articles 2, 3 and 8 of the Convention in respect of the acts of violence committed against her by B. She maintained that although the national courts, in both criminal and minor offences proceedings, had imposed certain sanctions and ordered certain measures, most of these had not been enforced, thereby seriously undermining any meaningful purpose of those proceedings. The national courts had also misapplied the relevant provisions of the applicable substantive and procedural law.", "51. She also argued that the requirement for her to prove an immediate risk to her life in order to have a protective measure of prohibition on harassing and stalking a victim of violence applied put a disproportionate burden on her as the victim of violent acts (see paragraph 3 5 above). In any event the Z. Minor Offences Court had had sufficient proof of a risk to her life because at that time B had already been convicted of uttering death threats against her (see paragraph 20 above).", "52. The applicant further maintained that owing to the failure of the national authorities to provide her with adequate protection against B's violence she had to live in fear for her physical integrity and for her life, had had to hide in the shelter, together with C, and had also had to move to a secret address.", "53. The Government argued that in Croatia the protection of victims of domestic violence was ensured through the mechanisms of criminal law, and in particular the Protection against Domestic Violence Act. In the present case the relevant authorities had reacted to the incidents of violence against the applicant by B, had instituted several sets of both criminal and minor offences proceedings and had applied such criminal sanctions and protective measures against B as they had considered proper and suitable in the circumstances. The Government submitted that the prison term imposed on B for not paying in full the fine imposed in the decision of the Z. Minor Offences Court of 2 October 2006 had not been enforced because Z. Prison had been full to capacity. Likewise, the measure of compulsory psycho-social treatment imposed on B in the same decision had not been implemented owing to the lack of licensed individuals or agencies able to execute such a protective measure (see paragraphs 3 1 and 3 4 above).", "54. In addition, the Government had adopted two national strategies for protection against domestic violence (the first one covering the period between 2005 and 2007 and the second covering the period between 2008 and 2010) which included, inter alia, the education of all those involved in cases of domestic violence and cooperation with the non-governmental organisations working in that field as well as financial and other support for them. Thus, in 2008 only sixteen new shelters with a total of 329 places for the victims of violence had been established, of which six were State-funded.", "2. The Court's assessment", "55. The Court takes note of B's repeated violent behaviour towards the applicant. The facts in issue concern frequent episodes of violence in the period between November 2003 and June 2006, amounting to some two years and seven months. The violence was both verbal, including serious death threats, and physical, including hitting and kicking the applicant in the head, face and body, causing her injuries. In view of the fact that all the incidents of domestic violence in the present case concerned the same perpetrator and occurred in a continual manner, the Court will examine them as a continuous situation.", "56. The Court takes further note of the psychiatric reports concerning B which indicated that he suffered from several mental disorders, including a severe form of PTSD, emphasised his tendency towards violence and his reduced ability to control his impulses, and reiterated the recommendation for continuing compulsory psychiatric treatment (see paragraphs 6, 12 and 13 above).", "57. The above facts show that the applicant made credible assertions that over a prolonged period of time B presented a threat to her physical integrity and had actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her (former) husband. This obligation might arise under all three Articles of the Convention relied upon, namely Articles 2, 3 and 8. However, in order to avoid further analysis as to whether the death threats against the applicant engaged the State's positive obligation under Article 2 of the Convention, as well as issues pertinent to the threshold for the purposes of Article 3 of the Convention, the Court will analyse the circumstances of the present case from the standpoint of Article 8 of the Convention.", "58. In this connection the Court reiterates that there is no doubt that the events giving raise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. Indeed, the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. There appears, furthermore, to be no reason in principle why the notion of “private life” should be taken to exclude attacks on one's physical integrity (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91).", "59. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y, cited above, §§ 23-24; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002-I; and Sandra Janković v. Croatia, no. 38478/05, § 44, ECHR 2009 ‑ ... (extracts) ).", "60. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person's physical and psychological integrity. Under Article 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria, no. 39272/98, §§ 150 and 152, ECHR 2003 ‑ XII; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; and Sandra Janković, cited above, § 45 ).", "61. The Court will therefore examine whether Croatia, in dealing with the applicant's case, has been in breach of its positive obligations under Article 8 of the Convention (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).", "(a) Measures ordered and implemented", "( i ) Detention", "62. As to the measures taken against B by the Croatian authorities, the Court notes that one of the measures applied against B was his pre-trial detention. Thus, in the criminal proceedings on charges of violent behaviour within the family, instituted on 21 November 2005 (see §§ 7–17 above), B was detained from 21 November to 20 December 2005. These proceedings concerned the allegations of physical and verbal violence against the applicant in the period between November 2003 and August 2005 as well as the allegations of child molestation. They are still pending.", "63. In the proceedings concerning the charges of making death threats against the applicant and a policewoman, instituted on 1 March 2006 (see §§ 18-22 above), B was detained from 30 June to 24 October 2006.", "( ii ) Other protective measures", "64. Further to B's detention, the national courts applied some other measures against him. Thus, in the last-mentioned proceedings concerning death threats against the applicant and a policewoman, the Zagreb Municipal Court also issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres and prohibiting contact with the applicant.", "65. In the minor offences proceedings on charges of domestic violence, instituted on 26 March 2006, the Zagreb Minor Offences Court ordered a protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year (see §§ 29-35 above).", "(b) Measures recommended or ordered and not followed or complied with", "66. However, the Court notes that some further recommendations and measures were not followed or complied with. It must be stated at this juncture that it is not the Court's task to verify whether the domestic courts correctly applied domestic criminal law; what is in issue in the present proceedings is not individual criminal-law liability, but the State's responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007; Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008; and Beganović v. Croatia, no. 46423/06, § 78, ECHR 2009 ‑ ... ).", "67. In this connection the Court notes that the obligation on the State under Article 8 of the Convention in cases involving acts of violence against an applicant would usually require the State to adopt adequate positive measures in the sphere of criminal-law protection. The Court stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V; Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006 ‑ XI; and Sandra Janković, cited above, § 47 ). Bringing to justice perpetrators of violent acts serves mainly to ensure that such acts do not remain ignored by the relevant authorities and to provide effective protection against them.", "(i ) Detention", "68. In the criminal proceedings instituted on 1 March 2006 the Zagreb Municipal Court, in a judgment of 16 October 2006, found B guilty on two counts of making death threats, against the applicant and against a policewoman, and sentenced him to eight months'imprisonment. B has not yet started to serve that prison term.", "69. In one of the sets of minor offences proceedings on charges of domestic violence a decision was adopted on 2 October 2006 ordering the applicant to pay a fine in the amount of HRK 6,000. He paid only HRK 1,000 and the remaining HRK 5,000 was supplemented by a prison term, but B never served his prison sentence. The Government explained that this was because Z. Prison was full to capacity.", "70. Instead he was arrested as late as 4 September 2009 in a separate set of criminal proceedings concerning charges of death threats against a judge and her daughter, and was placed in pre-trial detention. In these proceedings a judgment sentencing B to three years'imprisonment was adopted on 19 October 2009.", "(ii ) Psychiatric treatment", "71. At the same time an order was made for B to undergo psychiatric treatment. While the Court agrees that this measure was desirable, it cannot but note that it was not applied in connection with any proceedings concerning B's violence against the applicant. Furthermore, it was applied several years after the applicant had reported frequent incidents involving verbal and physical violence and death threats by B. The Court also notes that the Government have provided no information as to whether an individual programme for the execution of B's prison term was designed by the prison governor as required under section 69 of the Enforcement of Prison Sentences Act. An individual programme of this kind in respect of B takes on additional importance in view of the fact that his prison term was combined with a measure as significant as compulsory psychiatric treatment ordered by the domestic courts in relation to the serious death threats he had made (see, by way of comparison, Branko Tomašić and Others v. Croatia, no. 46598/06, § 56, ECHR 2009 ‑ ... ).", "72. In this connection the Court notes that as early as December 2004 a psychiatrist who examined B found that he suffered from chronic PTSD, with symptoms that included lowered tolerance of frustration, latent aggressiveness, a worsening of his condition and impaired social functioning, in particular in family life. In another psychiatric report, dated January 2008, it was found that B was in need of continuing psychiatric control and supervision and that a regular programme of therapy would preserve his relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment.", "73. In one set of minor offences proceedings on charges of domestic violence, a decision of 2 October 2006 ordered that the applicant should undergo psycho-social treatment in order to address his mental health problems in connection with his violent behaviour (see paragraph 3 1 above). However, owing to the lack of licensed individuals or agencies able to execute such a protective measure, it was never enforced (see §§ 31-33 above).", "(iii ) Fines", "74. The Court notes that the Government have not submitted any information showing that the fine of HRK 2,000 which B was ordered to pay in the minor offences proceedings on 20 November 2006 has been enforced. Further to that, in another set of minor offences proceedings, he was ordered to pay a fine in the amount of HRK 7,000 on 19 July 2007. However, the national courts allowed these proceedings to become time-barred when they were pending before the appeal court.", "(c) Conclusion", "75. The Court stresses that its task is not to take the place of the competent Croatian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46).", "76. In line with the principle stated above, the Court is also aware that it is for the national authorities to organise their legal systems so as to comply with their positive obligations under the Convention, and in that respect it is of course possible to conduct separate sets of criminal proceedings against the same defendant in respect of different criminal offences involving the same victim. However, in a situation such as the one in the present case, where different sets of criminal and minor offences proceedings concerned a series of violent acts by the same person, namely B, and against the same victim, namely the applicant, it appears that the requirement of effective protection of the applicant's right to respect for her private life would have been better satisfied had the authorities been in a position to view the situation as a whole. That would have given them a better overview of the situation and an opportunity of addressing the need to protect the applicant from various forms of violence in the most appropriate and timely manner.", "77. The Court recognises that the national courts instituted several sets of minor offences and criminal proceedings against B, in the context of which they ordered certain measures such as periods of pre-trial detention, psychiatric or psycho-social treatment, restraining and similar orders and even a prison term. By ordering these measures the Croatian authorities showed that they considered them adequate and necessary in order to address the situation of violence against the applicant. The Court cannot but agree with that approach.", "78. The national courts never overturned the measures in question or held that they were no longer necessary. However, as explained above in detail, many of these measures, such as periods of detention, fines, psycho-social treatment and even a prison term, have not been enforced (see paragraphs 6 8 -7 4 above) and the recommendations for continuing psychiatric treatment, made quite early on, were complied with as late as 19 October 2009 and then in the context of criminal proceedings unrelated to the violence against the applicant. In addition, it is not certain that B has as yet undergone any psychiatric treatment (see paragraph 2 3 above ). The Court stresses that the main purpose of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be achieved without the sanctions imposed being enforced.", "79. The national authorities failed to implement measures ordered by the national courts, aimed on the one hand at addressing B's psychiatric condition, which appear to have been at the root of his violent behaviour, and on the other hand at providing the applicant with protection against further violence by B. They thus left the applicant for a prolonged period in a position in which they failed to satisfy their positive obligations to ensure her right to respect for her private life.", "80. There has accordingly been a violation of Article 8 of the Convention. In view of that finding, the Court considers that no separate issue remains to be examined under Articles 2 and 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "81. The applicant further complained of the unfairness of the criminal and minor offences proceedings instituted against B. She relied on Article 6 § 1 of the Convention, the relevant part of which provides :", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "82. The Court notes that the applicant cannot rely on Article 6 of the Convention in so far as her complaint relates to criminal proceedings against third persons. Furthermore, the complaints made by the applicant have been examined above in connection with the complaint under Article 8 of the Convention.", "83. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "84. The applicant alleged that she had no effective remedy in respect of her complaint under the Convention. She relied on Article 13 of the Convention, which provides :", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "85. The Government contested that argument.", "86. The Court notes that this complaint is linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible.", "87. The applicant argued that because of the failure of the national authorities to enforce their own decisions adopted in various proceedings instituted against B on charges of verbal and physical violence against her, she had no effective remedy by which to obtain protection against B's violence. The Court notes that these very same issues have already been examined above under Article 8 of the Convention and have led to a finding of a violation of that Article. Therefore, the Court considers that in the specific circumstances of the present case it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "88. The applicant further complained that the relevant laws relating to domestic violence were insufficient and ineffective and that since acts of domestic violence were predominantly committed against women, those laws were also discriminatory. She relied on Article 14 of the Convention, which provides :", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "1. The parties'submissions", "89. The applicant concentrated her arguments concerning the alleged violation of Article 14 on three main points. Firstly, she argued that the legislation pertinent to the incidents of domestic violence was discriminatory in that it provided for minor offences proceedings in respect of all acts of domestic violence, including instances of serious physical abuse, while such violence occurring outside a domestic context was dealt with through ordinary criminal-law mechanisms. Furthermore, although a measure of compulsory psychiatric treatment was provided for by law, in practice it had been entirely ineffective.", "90. Secondly, she argued that although the Government had adopted two national strategies for protection against domestic violence (in 200 5 and 20 08 ) neither had been implemented. In that connection she stressed that the training of experts working in the context of domestic violence was insufficient and that there had been no evaluation of such training.", "91. Thirdly, the applicant maintained that the statistics relating to the application of protective measures under the Protection against Domestic Violence Act showed that in 2007, in the City of Zagreb, 173 cases concerning domestic violence had been processed under that Act. In 98 of these cases a request had been made for the application of protective measures; such measures had actually been applied in only eleven cases, while in 40 cases they had been refused and in 47 cases a judge had made no comments on the request for a protective measure. The applicant submitted further official statistics showing that out of 172 sets of minor offences proceedings conducted in 2007, 132 had ended by finding both (former) spouses guilty. Of these, 70 cases had resulted in a sentence of imprisonment, 38 of which had been suspended. In the remaining 16 cases in which only one (former) spouse was found guilty, men had been the perpetrators in 14 cases and women in 2, while the other cases had been terminated without a conviction.", "92. Separate statistics were submitted regarding the length of proceedings instituted under the Protection against Domestic Violence Act before the High Minor Offences Court, which is an appeal court in minor offences cases. In 2007 that court received 1, 568 cases under the said Act. In 461 cases the proceedings had lasted thirty days, in 574 cases between 31 and 60 days, in 420 cases they had lasted between 61 and 120 days and in 67 cases more than 121 days.", "93. The Government argued that there had been no discriminatory treatment of the applicant by any of the authorities involved. Unlike in the Opuz case (see Opuz v. Turkey, no. 33401/02, ECHR 2009 ‑ ... ), the facts of the present case showed that none of the authorities had treated the incidents of violence against the applicant as a family matter they could not interfere with. Furthermore, none of the officials had in any manner tried to dissuade the applicant from pursuing her claims against B.", "2. The Court's assessment", "94. The Court has already accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of gender, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Oršuš and Others v. Croatia [GC], no. 15766/03, § 150, ECHR 2010 ‑ ... ), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 -VIII). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see Oršuš and Others, cited above, § 1 50 ).", "95. The Court notes that in Opuz, on the basis of reports submitted by the applicants and prepared by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee, the Diyarbakır Bar Association and Amnesty International, it found that general and discriminatory judicial passivity in Turkey, albeit unintentional, had mainly affected women, and considered that the violence suffered by the applicant and her mother could be regarded as gender-based violence which was a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, as found in that case, indicated that there had been insufficient commitment to take appropriate action to address domestic violence ( see Opuz, cited above, § 200).", "96. In support of these findings the Court relied on the Turkish Government's recognition of the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence, and judicial passivity in providing effective protection to victims (see Opuz, cited above, § 192). Furthermore, the reports submitted indicated that when victims reported domestic violence to police stations, police officers did not investigate their complaints but sought to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers considered the problem as a family matter with which they could not interfere (see Opuz, cited above, §§ 92, 96, 102 and 195 ). The reports also showed that there were unreasonable delays in issuing injunctions and in serving injunctions on the aggressors, given the negative attitude of the police officers. Moreover, the perpetrators of domestic violence did not seem to receive dissuasive punishments, because the courts mitigated sentences on the grounds of custom, tradition or honour (see Opuz, cited above, §§ 91-93, 95, 101, 103, 1 06 and 196 ).", "97. The Court notes at the outset that in the present case the applicant has not submitted any reports in respect of Croatia of the kind concerning Turkey in the Opuz case. There is not sufficient statistical or other information disclosing an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the Croatian authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law. The applicant did not allege that any of the officials involved in the cases concerning the acts of violence against her had tried to dissuade her from pursuing the prosecution of B or giving evidence in the proceedings instituted against him, or that they had tried in any other manner to hamper her efforts to seek protection against B's violence.", "98. Starting from the arguments submitted by the applicant (see paragraphs 89 -9 2 above), the Court will proceed to examine whether they disclose prima facie evidence of discrimination on the basis of gender.", "99. As regards the applicant's arguments related to the legislative provisions covering the incidents of domestic violence, the Court stresses that it is for legislators and politicians to deal with the issues pertinent to devising general criminal policy, including the prevention of crime, in a given legal system (see Branko Tomašić and Others, cited above, § 7 3 ). The Court's task is to review under the Convention the decisions that those authorities have taken.", "100. The Court notes that, in Croatia, incidents of domestic violence may be addressed both in minor offences proceedings and in ordinary criminal proceedings. In the Court's view, the fact that certain acts of domestic violence may be the subject of minor offences proceedings does not in itself appear discriminatory on the basis of gender. In this connection the Court notes that various types of sanctions and measures may be applied in those proceedings, such as fines of up to HRK 10,000, a prison term of up to sixty days and the preventive measures listed in sections 7-10 of the Protection against Domestic Violence Act (see paragraph 4 2 above). In addition to that the criminal offence of violent behaviour within the family under Article 215a of the Criminal Code is punishable by a prison term ranging from six months to five years. In the Court's view the legislative framework in question does not show any appearance of discrimination on the basis of gender. Thus, in the present case several sets of both minor offences and criminal proceedings were instituted against B.", "101. The Court has already established that not all the sanctions and measures ordered or recommended in the context of these proceedings were complied with. While this failure appears problematic from the standpoint of Article 8 of the Convention, it does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender in respect of the applicant.", "102. As regards the national strategies for protection against domestic violence adopted in 2008 and 2010, the Court notes that the applicant's allegation that the training of relevant experts had been insufficient is unsupported by any relevant examples, data or reports and cannot in itself lead to a conclusion of gender discrimination in the treatment of incidents of domestic violence in Croatia.", "103. As regards the statistics concerning the implementation of protective measures, the information submitted is again incomplete and unsupported by relevant analysis and thus not capable of leading the Court to draw any conclusions on that basis. As regards the other statistics submitted, the only worrisome data is that out of 173 sets of minor offences proceedings conducted in 2007 in connection with incidents of domestic violence, in 132 sets of proceedings both spouses were found guilty. However, no such findings were made in the cases concerning the applicant.", "104. Against the background described above, the Court finds that the applicant has not produced sufficient prima facie evidence that the measures or practices adopted in Croatia in the context of domestic violence, or the effects of such measures or practices, are discriminatory. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "105. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "106. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.", "107. The Government deemed the amount claimed excessive and unsubstantiated.", "108. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 9 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.", "B. Costs and expenses", "109. The applicant also claimed HRK 8,659. 30 for the costs and expenses incurred before the Constitutional Court and HRK 23,515.60 for those incurred before the Court.", "110. The Government submitted that the applicant was not entitled to any costs and expenses before the national courts.", "111. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court accepts that the applicant's constitutional complaint was aimed at remedying the situation of violation claimed by the applicant in the present case. It therefore awards the claim for costs and expenses in the domestic proceedings in the amount of EUR 1,200 and considers it reasonable to award the sum of EUR 3,270 for the proceedings before the Court, plus any tax that may be chargeable to her on those amounts.", "C. Default interest", "112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1979 and lives in Z.", "1. Background to the case", "5. On 21 April 2001 the applicant married B and on 14 May 2001 a daughter, C, was born of the marriage. On 13 December 2005 the applicant brought a civil action in the Z. Municipal Court ( Općinski sud u Z. ), seeking a divorce from B. On 7 November 2006 the court dissolved the marriage of the applicant and B.", "6. For the purposes of criminal proceedings instituted against him in 2003, B, who was still the applicant's husband at the time, underwent a psychiatric examination. The relevant part of the report drawn up by two psychiatrists on 6 December 2004 indicated that B had been captured during the Homeland War and detained in a concentration camp from 3 April to 14 August 1992, where he had been tortured and had sustained serious bodily injuries. It also indicated that since 1992 he had been suffering from mental disorders such as anxiety, paranoia, epilepsy and post-traumatic stress disorder (PTSD).", "The relevant part of the report reads:", "“The patient is primarily an emotionally immature person who shows symptoms of chronic PTSD (lowered tolerance of frustration, egocentrism, latent aggressiveness, a tendency towards depressive reactions in stressful situations, as well as a worsening of his condition and impaired social functioning, in particular in family life).", "... ”", "2. Criminal proceedings against B on charges of violent behaviour within the family", "7. On 21 November 2005 B was arrested and detained on suspicion that he had committed the criminal offence of violent behaviour within the family. On 20 December 2005 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of violent behaviour within the family. The indictment alleged that from 12 November 2003 to 21 August 2005 B had verbally insulted and threatened the applicant, prevented her from leaving the house and physically assaulted her; on 12 November 2003 he had physically assaulted her by punching her in the belly, throwing her on the floor and continuing to hit and kick her in the body and head; on 7 August 2005 he had hit the applicant in the face, back and hands, causing lacerations; and on 21 August 2005 he had kicked her in the leg.", "8. On 20 December 2005 B was released, after his mother gave a statement saying that she would immediately take B to their house in P. However, after having been released, he continued abusing the applicant and therefore on 9 January 2006 the applicant, together with C, moved to a women's shelter in Z. (hereinafter “ the shelter”) run by a non-governmental organisation.", "9. The first hearing scheduled before the Z. Municipal Court for 29 March 2006 was adjourned because B did not appear. The second hearing was held on 25 April 2006.", "10. On 22 May 2006 the Z. State Attorney's Office extended the indictment to the criminal offence of neglecting and molesting a child or a minor. The extended indictment alleged that between November 2003 and February 2006 B had continually abused the applicant, both verbally and physically, in front of their daughter C, as well as using inappropriate language in respect of C, and had on several occasions punched and kicked C. Consequently, the case was transferred to the juvenile division ( odjel za mladež ) of the Z. Municipal Court.", "11. Further hearings scheduled for 7 December 2006 and 20 February 2007 were adjourned because B did not appear. A hearing scheduled for 17 April 2007 was adjourned until 9 May 2007 at the request of B's legal representative. At that hearing the judge ordered a psychiatric examination of B.", "12. The psychiatric examination established that B suffered from several mental disorders, including PTSD. The report of 2 January 2008 concluded:", "“In view of his mental state and the need for continued control and supervision, I would recommend that the court order a security measure of psychiatric treatment.", "Treatment may be carried out in a day hospital and without detention.", "This would enable him to follow a regular programme of therapy which would preserve his current relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment.”", "13. Another hearing was held on 12 March 2008, at which the expert psychiatrist was questioned. The expert stated that, owing to his difficult war experiences, B suffered from PTSD; he was a neurotic person with a slightly below-average intellectual level, reduced emotional capacity and a passive-aggressive personality. For those reasons his understanding of his own actions and his ability to control his impulses were significantly reduced. The expert repeated his recommendation that a security measure of compulsory psychiatric treatment be applied.", "14. A hearing scheduled for 29 April 2008 was adjourned until 4 June 2008 at the request of B's legal representative. That hearing was also adjourned because B did not appear. Hearings scheduled for 14 July and 3 October 2008 were adjourned because one of the witnesses, an employee of the Z. Social Welfare Centre, did not appear.", "15. At a hearing held on 19 November 2008 the applicant gave evidence and the court accepted proposals by both parties to call further witnesses. At a hearing held on 10 December 2008 four witnesses gave evidence. Further witnesses were called for the hearing scheduled for 21 January 2009, but the hearing was adjourned until 4 March 2009 since B and one prosecution witness did not appear. The hearing scheduled for 4 March 2009 was also adjourned because B did not appear and the hearing scheduled for 2 April 2009 was adjourned because neither B nor the prosecutor appeared.", "16. On 6 April 2009 judge M.B. asked to be allowed to step down from the case, since in March 2009 B had threatened her and she had reported B to the police (see paragraph 2 3 below). The president of the Z. Municipal Court granted her request on 21 April 2009.", "17. On 9 March 2009 B was admitted voluntarily to a psychiatric hospital, where he stayed until 6 April 2009. On 18 April he again went to a psychiatric hospital voluntarily. On 13 May 2009 the new judge ordered an additional psychiatric examination of B, in order to establish whether he was fit to stand trial. The expert concluded that, even though B's mental condition had deteriorated somewhat, he was still capable of standing trial. B left the hospital on 28 May 2009. Owing to the change of presiding judge in the proceedings, all the evidence had to be presented again. The first hearing in front of the new judge was held on 11 November 2009. A hearing scheduled for 14 December 2009 was adjourned until 13 January 2010 at the request of B's legal representative. A hearing was held on 1 6 February 2010. The criminal proceedings are still pending.", "3. Criminal proceedings against B on charges of making threats against the applicant and a police officer", "18. On 1 March 2006 the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against the applicant on 1 March 2006.", "19. Further to that, on 30 June 2006 B was arrested and detained on suspicion of the criminal offence of making death threats against the applicant and a police officer, I.G. On 27 July 2006 the Z. State Attorney's Office indicted B on charges of making death threats against the applicant and I.G.", "20. On 8 September 2006 the two sets of proceedings were joined. On 16 October 2006 B was found guilty of three counts of making death threats and sentenced to eight months'imprisonment. The relevant extracts from the operative part of the judgment read:", "“B ...", "is guilty", "on the grounds that", "1. in the period from 29 May to 12 June 2006 ... on the official premises of the Social Welfare Centre, during meetings with minor child C, in order to incite feelings of fear in his former wife A, he whispered several times in her ear that she was a villain, that he was going to get rid of her, that she knew what he was capable of and that she would be swallowed up by darkness; on 14 June 2006 after the meeting with his minor child, he approached A on the street in front of the building of the Social Welfare Centre and whispered in her ear to beware of him and that he was going to get rid of her, which caused in A feelings of anxiety and fear for her own life ...", "2. during November 2005, in Z., on the premises of ... police station during an interview [with the police conducted] following a criminal complaint against him on allegations of having committed the criminal offence of violent behaviour within the family ... told a policewoman ..., in order to incite in her feelings of fear, that she brought shame upon the Croatian police, that she was conspiring against him with his former wife, that he knew the head of the police ... and Minister ... that these were her last days in police service and that he was going to get rid of her; on 19 January 2006 in the Zagreb Minor Offences Court during her testimony, he repeated that she brought shame upon the Croatian police, that she was conspiring against him with his former wife and that he was going to get rid of her, that he was not going to beat her but would have done with her and would remember her, which caused in her feelings of fear and of a risk to her own life ...", "3. on 21 November 2005 in Z., on the premises of ... police department, in order to incite in her feelings of fear and fear for her personal safety, called wife A several times on her cellular phone, telling her to withdraw her criminal complaint against him and, when she refused, told her that she would be swallowed up by darkness, to beware of him, that nothing was going to be as before and that he was going to put her in jail, which caused in A feelings of fear and fear for her personal safety ... ”", "21. On 24 October 2006 B was released from detention. On the same day the Z. Municipal Court issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres, and prohibiting contact with the applicant.", "22. Both the Z. State Attorney's Office and B lodged appeals against the first - instance judgment. On 22 May 2007 the judgment was upheld by the Z. County Court and thus became final. The judgment has not yet been enforced.", "4. Criminal proceedings against B on charges of making death threats against a judge and her minor daughter", "23. On an unspecified date the Z. State Attorney's Office indicted B in the Z. Municipal Court on charges of making death threats against judge M.B. and her minor daughter (see paragraph 16 above). In the course of the proceedings B was arrested on 4 September 2009 and placed in pre-trial detention. On 19 October 2009 the Z. Municipal Court found B guilty as charged and sentenced him to three years'imprisonment and also ordered his compulsory psychiatric treatment. It seems that B is still in detention but no information has been provided as to where and whether any psychiatric treatment has been provided.", "5. Minor offences proceedings against B", "(a) The first set of proceedings", "24. On 7 January 2004 a police station lodged a request with the Z. Minor Offences Court ( Prekšajni sud u Z. ) for minor offences proceedings to be instituted against B. It was alleged that on 12 November 2003 B had assaulted the applicant and pushed her onto the floor, while kicking her in the body and head.", "25. At a hearing held on 8 June 2004 the applicant refused to give evidence and the proceedings were discontinued.", "(b) The second and third sets of proceedings", "26. On 14 November 2005 a police station lodged two requests with the Z. Minor Offences Court for minor offences proceedings to be instituted against B.", "27. In the first request, it was alleged that on 21 August 2005 B had verbally abused the applicant in front of C and had kicked the applicant in the leg. In a decision of 20 November 2006 the court found B guilty of domestic violence and imposed a fine in the amount of 2,000 Croatian kuna (HRK). There is no indication that this fine has been enforced.", "28. In the second request it was alleged that on 7 August 2005 B had first forcefully stopped the applicant from taking a bath and had hit her in the face, back and hands, causing lacerations. In a decision of 19 July 2007 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 7,000. However, this decision did not become final because the proceedings were discontinued on 28 November 2007, having become time-barred.", "(c) The fourth set of proceedings", "29. On 26 March 2006 the applicant lodged a request with the Z. Minor Offences Court under the Protection against Domestic Violence Act, for minor offences proceedings to be instituted against B. She alleged that since 29 March 2005 B had repeatedly assaulted her in front of C and caused her bodily injuries. These were described in the enclosed medical reports of 29 March and 16 August 2005 as contusions to the upper lip, right calf and right foot. The injuries were classified as minor bodily injuries. He had further threatened to kill her on 1 February 2006.", "30. The applicant also requested that protective measures be immediately imposed in the form of prohibiting access to her proximity, a prohibition on harassing or stalking her and compulsory psycho-social treatment. The applicant explained that B had been diagnosed with several mental disorders and had been undergoing treatment for years. She requested that the proceedings be instituted as a matter of urgency.", "31. The court held a preliminary hearing ( pripremno ročište ) on 27 June 2006, and subsequent hearings on 19 September 2006 and 26 September 2006. In a decision of 2 October 2006 the court found B guilty of domestic violence and imposed a fine in the amount of HRK 6,000. A protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year was also ordered, as well as a protective measure of compulsory psycho-social treatment for a period of six months. The relevant extracts from the operative part of the decision read:", "“B", "is guilty", "on the grounds that", "on 1 February 2006 in their flat ... he threatened his wife with the following words :'I will kill you, you won't walk again ... you will never see your child again'in the presence of their minor child C ... which acts of violence he repeated on several subsequent occasions causing her physical injuries also ... ”", "32. On 30 October 2006 the applicant lodged an appeal, arguing that a protective measure in the form of a prohibition on harassing or stalking her and C and a protective measure of prohibition of access to C should have also been applied. She argued further that the measure of prohibition on access to her was not sufficiently precise because the court had failed to specify the date on which the measure was to be implemented. B also lodged an appeal.", "33. The appeals of B and the applicant were dismissed on 31 January 2007 by the High Minor Offences Court.", "34. B paid HRK 1,000 of the fine. The remaining fine in the amount of HRK 5,000 was supplemented by a prison term which B has not served. The Government explained that this was because Z. Prison was full to capacity. Furthermore, B has not undergone the compulsory psycho-social treatment because of the lack of licensed individuals or agencies able to execute such a protective measure. Execution of the sentence became time-barred on 31 January 2009.", "35. On 10 December 2007 the applicant informed the Z. Minor Offences Court that B had violated the restraining order and that in October 2007 he had hired a private detective who had come to her secret address where she had been living after leaving the shelter. The applicant reiterated her request for the application of an additional protective measure in the form of a prohibition on harassing and stalking a victim of violence. Her request was dismissed in a decision of the Z. Minor Offences Court of 12 December 2007 on the ground that she had not shown an immediate risk to her life. On 17 December 2007 the applicant lodged an appeal against that decision. The court dismissed her appeal on 7 January 2008. The applicant lodged a constitutional complaint against that decision on 18 February 2008. On 19 March 2008 the Constitutional Court found that it had no jurisdiction in the matter.", "6. Other relevant facts", "36. On an unspecified date the applicant and C left the shelter and went to live at a secret address. On 14 October 2007 an unknown man appeared at their door. The applicant's partner opened and the man at the door introduced himself as a private detective hired by B to find out the whereabouts of the applicant and C.", "37. The applicant moved out and lived in a nearby village for five months. According to the applicant, she was not able to find new accommodation elsewhere because all the landlords she had approached answered that they had no wish to deal with her violent ex-husband.", "38. In the course of the divorce proceedings between the applicant and B, the Z. Municipal Court issued an interim measure on 9 March 2006 and ordered contact between B and C twice a week for one hour on the premises of the Z. Social Welfare Centre, under expert supervision. The applicant did not comply with the decision, so on 23 May 2006 the court threatened her with a fine unless she complied with the order. After that decision the applicant complied with the interim measure until mid-June 2006.", "39. On 7 November 2006 the Z. Municipal Court dissolved the marriage of the applicant and B and also ordered B to pay child maintenance for C. It further prohibited B from contacting C. Both parties lodged appeals, and on 11 September 2007 the Z. County Court ( Županijski sud u Z. ) upheld the divorce but quashed the first-instance judgment concerning the amount of maintenance to be paid in respect of C and the ban on contact between B and C, and remitted the case in that part.", "40. On 7 October 2008 the Z. Municipal Court gave a fresh judgment on the amount of maintenance and ordered contact between B and C twice a month for two hours in a children's play centre in Z., under the expert supervision of the Z. Social Welfare Centre. Both parties lodged appeals, and on 27 January 2009 the Z. County Court upheld the part of the judgment concerning contact between B and C, quashed the decision on maintenance and remitted the case in that part. The proceedings on the child maintenance are still pending.", "III. COUNCIL OF EUROPE DOCUMENTS", "45. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.", "46. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape and abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising any abuse of position by the perpetrator. The Recommendation also states that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children's rights are protected during proceedings.", "47. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services." ]

[ "II. RELEVANT DOMESTIC LAW", "Relevant criminal law", "41. The relevant parts of the Criminal Code ( Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003, 105/2004, 84/2005 and 71/2006 ) read as follows:", "Article 75", "“ A security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence.", "A security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence.", "Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years.", "... ”", "BODILY INJURY", "Article 98", "“ Anyone who inflicts bodily injury on another person or impairs another person's health shall be fined or sentenced to imprisonment for a term not exceeding one year.”", "Article 102", "“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.”", "THREATS", "Article 129", "“(1) Anyone who threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.", "(2) Anyone who seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year.", "...", "(4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.”", "VIOLENT BEHAVIOUR WITHIN THE FAMILY", "Article 215a", "“A family member who by an act of violence, ill-treatment or particularly contemptuous behaviour places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.”", "Relevant minor offences law", "42. The relevant provisions of the Protection against Domestic Violence Act (Official Gazette no. 116/2003, Zakon o zaštiti of nasilja u obitelji ) provide:", "Section 1", "“This Act defines the term domestic violence, persons considered as family members within the meaning of this Act, the manner of protection of family members and the types and purpose of minor offences sanctions.”", "Section 2", "“(1) The provisions of the Minor Offences Act are to be applied in respect of minor offences in the sphere of domestic violence, unless otherwise provided by this Act.", "(2) All proceedings instituted under this Act shall be urgent.”", "Section 4", "“Domestic violence is:", "– any use of physical force or psychological pressure against a person's integrity;", "– any other act by a family member which might cause physical or mental suffering;", "– causing fear, fear for personal safety or harm to a person's dignity;", "– physical assault irrespective of whether it has caused injury;", "– verbal assaults, insults, cursing, calling names or other forms of serious harassment;", "– sexual harassment;", "– stalking and all other forms of harassment;", "– illegal isolation of a person or restricting his or her freedom of movement or communication with others;", "– causing damage to or destruction of property or attempting to do so .”", "Types and purpose of minor offences sanctions for protection from domestic violence", "Section 6", "“(1) Minor offences sanctions for protection from domestic violence are fines, imprisonment and protective measures.", "... ”", "Protective measures", "Section 7", "“A court may order the following protective measures against the perpetrator of an act of domestic violence", "( a) compulsory psycho-social treatment;", "( b) prohibiting access to the victim's proximity;", "( c) prohibition on harassing and stalking the victim of violence;", "( d) removal from flat, house or other living premises;", "( e) providing protection to a person exposed to violence;", "( f) compulsory treatment for addiction;", "( g) seizure of objects intended for or used in the commission of a minor offence.”", "Purpose of protective measures", "Section 8", "“The purpose of protective measures is to prevent domestic violence, to secure the necessary protection of the health and safety of a person exposed to violence and to remove the circumstances favourable to or capable of inciting the commission of a further minor offence.”", "Protective measure of compulsory psycho-social treatment", "Section 9", "“(1) A protective measure of obligatory psycho-social treatment may be imposed in respect of the perpetrator of an act of domestic violence in order to put an end to the violent behaviour of the perpetrator or where there is a risk that the perpetrator might reoffend against persons under section 3 of this Act.", "(2) The measure under paragraph 1 of this section shall remain in place as long as the reasons for which it has been imposed exist, but for no longer than six months.", "... ”", "Protective measure prohibiting access to the victim's proximity", "Section 10", "“(1) A protective measure prohibiting access to the victim's proximity may be imposed against a person who has committed an act of domestic violence where there is a risk that he or she might reoffend.", "(2) A decision imposing a measure prohibiting access to the victim's proximity shall define the places or areas covered as well as the distance of access.", "(3) The duration of a measure under paragraph one of this section shall not be shorter than one month or exceed one year.", "... ”", "Protective measure prohibiting the harassing and stalking of a victim of violence", "Section 11", "“(1) A protective measure prohibiting the harassing and stalking of a victim of violence may be ordered against a person who has committed violence by harassing or stalking and where there is a danger of his or her reoffending against persons under section 3 of this Act.", "(2) The measure under paragraph 1 of this section shall be ordered for a period from one month to one year.", "... ”", "Protective measure of providing protection to a person exposed to violence", "Section 13", "“(1) A protective measure of providing protection to a person exposed to violence may be ordered in respect of a person exposed to violence for his or her physical protection and to enable him or her to take from home his or her personal documents, clothes, money or other items necessary for everyday life.", "(2) The measure under paragraph 1 of this section shall include an order to the police to escort the person exposed to violence and protect that person while he or she takes his or her personal items and to escort him or her while leaving the home.", "(3) The duration of this measure shall be defined by the duration of implementation of the court order.”", "Ordering of protective measures", "Section 16", "“(1) Protective measures may be ordered at the request of a person exposed to violence or of the police, or of the court's own motion.", "(2) The protective measures under section 7 ( a) and ( g) shall be ordered by the court of its own motion.", "(3) The protective measures under this Act shall be ordered for a period which shall not be less than one month, nor shall it exceed two years from the date when a decision in minor offence proceedings has become final or from the date of completion of a prison term, if not otherwise provided under this Act.”", "Section 17", "“(1) The protective measures under section 7 ( b), ( c), ( d) and g) of this Act may be ordered independently even where no other sanction has been imposed.", "(2) The protective measures under paragraph 1 of this section may be imposed at the request of a person who has lodged a request for minor offences proceedings to be instituted, in order to remove a direct risk to the life of persons exposed to violence or other family members.", "(3) A court shall give a decision under paragraphs 1 and 2 of this section within 48 hours.", "... ”", "Responsibility for non-compliance with a protective measure", "Section 20", "“(1) The perpetrators of domestic violence are obliged to comply with the protective measure [ordered against them ].", "(2) Persons who do not comply with the protective measure ordered against them shall be punished for a minor offence by a fine which may not be less than 3,000 Croatian kuna or by at least forty days'imprisonment.", "... ”", "43. The relevant part of the Minor Offences Act ( Zakon o Prekršajima, Official Gazette no. 88/2002 ) reads:", "Section 30", "“A fine may be prescribed in respect of an individual in a minimum amount of 300 Croatian kuna and a maximum amount of 10,000 Croatian kuna ... ”", "Section 31", "“ The prison term may be prescribed for a minimum duration of three days and a maximum of thirty days. On an exceptional basis, in respect of the most serious minor offences, it may be prescribed for a maximum duration of sixty days.", "... ”", "44. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:", "PURPOSE OF A PRISON TERM", "Section 2", "“The main purpose of a prison term, apart from humane treatment and respect for the personal integrity of the person serving the prison term, ... is the development of his or her capacity to live after release in accordance with the laws and general customs of society.”", "INDIVIDUAL PRGRAMME FOR ENFORCEMENT OF A PRISON TERM", "Section 69", "(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety activities and measures aimed at adapting the time spent in detention to the character traits and needs of the prisoner and the type and possibilities of the particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.", "(2) The enforcement programme shall be designed by the prison governor on a proposal from the penitentiary or prison expert team ...", "(3) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... )", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 8 OF THE CONVENTION", "48. The applicant complained that by failing to afford her adequate protection against B's violence the State authorities had failed to comply with their positive obligations. She relied on Articles 2, 3 and 8 of the Convention, the relevant parts of which read :", "Article 2 – Right to life", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "... ”", "Article 3 – Prohibition of torture", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 – Right to respect for private and family life", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "49. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "50. The applicant argued that the State authorities had failed in their positive obligations under Articles 2, 3 and 8 of the Convention in respect of the acts of violence committed against her by B. She maintained that although the national courts, in both criminal and minor offences proceedings, had imposed certain sanctions and ordered certain measures, most of these had not been enforced, thereby seriously undermining any meaningful purpose of those proceedings. The national courts had also misapplied the relevant provisions of the applicable substantive and procedural law.", "51. She also argued that the requirement for her to prove an immediate risk to her life in order to have a protective measure of prohibition on harassing and stalking a victim of violence applied put a disproportionate burden on her as the victim of violent acts (see paragraph 3 5 above). In any event the Z. Minor Offences Court had had sufficient proof of a risk to her life because at that time B had already been convicted of uttering death threats against her (see paragraph 20 above).", "52. The applicant further maintained that owing to the failure of the national authorities to provide her with adequate protection against B's violence she had to live in fear for her physical integrity and for her life, had had to hide in the shelter, together with C, and had also had to move to a secret address.", "53. The Government argued that in Croatia the protection of victims of domestic violence was ensured through the mechanisms of criminal law, and in particular the Protection against Domestic Violence Act. In the present case the relevant authorities had reacted to the incidents of violence against the applicant by B, had instituted several sets of both criminal and minor offences proceedings and had applied such criminal sanctions and protective measures against B as they had considered proper and suitable in the circumstances. The Government submitted that the prison term imposed on B for not paying in full the fine imposed in the decision of the Z. Minor Offences Court of 2 October 2006 had not been enforced because Z. Prison had been full to capacity. Likewise, the measure of compulsory psycho-social treatment imposed on B in the same decision had not been implemented owing to the lack of licensed individuals or agencies able to execute such a protective measure (see paragraphs 3 1 and 3 4 above).", "54. In addition, the Government had adopted two national strategies for protection against domestic violence (the first one covering the period between 2005 and 2007 and the second covering the period between 2008 and 2010) which included, inter alia, the education of all those involved in cases of domestic violence and cooperation with the non-governmental organisations working in that field as well as financial and other support for them. Thus, in 2008 only sixteen new shelters with a total of 329 places for the victims of violence had been established, of which six were State-funded.", "2. The Court's assessment", "55. The Court takes note of B's repeated violent behaviour towards the applicant. The facts in issue concern frequent episodes of violence in the period between November 2003 and June 2006, amounting to some two years and seven months. The violence was both verbal, including serious death threats, and physical, including hitting and kicking the applicant in the head, face and body, causing her injuries. In view of the fact that all the incidents of domestic violence in the present case concerned the same perpetrator and occurred in a continual manner, the Court will examine them as a continuous situation.", "56. The Court takes further note of the psychiatric reports concerning B which indicated that he suffered from several mental disorders, including a severe form of PTSD, emphasised his tendency towards violence and his reduced ability to control his impulses, and reiterated the recommendation for continuing compulsory psychiatric treatment (see paragraphs 6, 12 and 13 above).", "57. The above facts show that the applicant made credible assertions that over a prolonged period of time B presented a threat to her physical integrity and had actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her (former) husband. This obligation might arise under all three Articles of the Convention relied upon, namely Articles 2, 3 and 8. However, in order to avoid further analysis as to whether the death threats against the applicant engaged the State's positive obligation under Article 2 of the Convention, as well as issues pertinent to the threshold for the purposes of Article 3 of the Convention, the Court will analyse the circumstances of the present case from the standpoint of Article 8 of the Convention.", "58. In this connection the Court reiterates that there is no doubt that the events giving raise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. Indeed, the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. There appears, furthermore, to be no reason in principle why the notion of “private life” should be taken to exclude attacks on one's physical integrity (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91).", "59. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y, cited above, §§ 23-24; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002-I; and Sandra Janković v. Croatia, no. 38478/05, § 44, ECHR 2009 ‑ ... (extracts) ).", "60. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person's physical and psychological integrity. Under Article 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria, no. 39272/98, §§ 150 and 152, ECHR 2003 ‑ XII; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; and Sandra Janković, cited above, § 45 ).", "61. The Court will therefore examine whether Croatia, in dealing with the applicant's case, has been in breach of its positive obligations under Article 8 of the Convention (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).", "(a) Measures ordered and implemented", "( i ) Detention", "62. As to the measures taken against B by the Croatian authorities, the Court notes that one of the measures applied against B was his pre-trial detention. Thus, in the criminal proceedings on charges of violent behaviour within the family, instituted on 21 November 2005 (see §§ 7–17 above), B was detained from 21 November to 20 December 2005. These proceedings concerned the allegations of physical and verbal violence against the applicant in the period between November 2003 and August 2005 as well as the allegations of child molestation. They are still pending.", "63. In the proceedings concerning the charges of making death threats against the applicant and a policewoman, instituted on 1 March 2006 (see §§ 18-22 above), B was detained from 30 June to 24 October 2006.", "( ii ) Other protective measures", "64. Further to B's detention, the national courts applied some other measures against him. Thus, in the last-mentioned proceedings concerning death threats against the applicant and a policewoman, the Zagreb Municipal Court also issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres and prohibiting contact with the applicant.", "65. In the minor offences proceedings on charges of domestic violence, instituted on 26 March 2006, the Zagreb Minor Offences Court ordered a protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year (see §§ 29-35 above).", "(b) Measures recommended or ordered and not followed or complied with", "66. However, the Court notes that some further recommendations and measures were not followed or complied with. It must be stated at this juncture that it is not the Court's task to verify whether the domestic courts correctly applied domestic criminal law; what is in issue in the present proceedings is not individual criminal-law liability, but the State's responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007; Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008; and Beganović v. Croatia, no. 46423/06, § 78, ECHR 2009 ‑ ... ).", "67. In this connection the Court notes that the obligation on the State under Article 8 of the Convention in cases involving acts of violence against an applicant would usually require the State to adopt adequate positive measures in the sphere of criminal-law protection. The Court stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V; Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006 ‑ XI; and Sandra Janković, cited above, § 47 ). Bringing to justice perpetrators of violent acts serves mainly to ensure that such acts do not remain ignored by the relevant authorities and to provide effective protection against them.", "(i ) Detention", "68. In the criminal proceedings instituted on 1 March 2006 the Zagreb Municipal Court, in a judgment of 16 October 2006, found B guilty on two counts of making death threats, against the applicant and against a policewoman, and sentenced him to eight months'imprisonment. B has not yet started to serve that prison term.", "69. In one of the sets of minor offences proceedings on charges of domestic violence a decision was adopted on 2 October 2006 ordering the applicant to pay a fine in the amount of HRK 6,000. He paid only HRK 1,000 and the remaining HRK 5,000 was supplemented by a prison term, but B never served his prison sentence. The Government explained that this was because Z. Prison was full to capacity.", "70. Instead he was arrested as late as 4 September 2009 in a separate set of criminal proceedings concerning charges of death threats against a judge and her daughter, and was placed in pre-trial detention. In these proceedings a judgment sentencing B to three years'imprisonment was adopted on 19 October 2009.", "(ii ) Psychiatric treatment", "71. At the same time an order was made for B to undergo psychiatric treatment. While the Court agrees that this measure was desirable, it cannot but note that it was not applied in connection with any proceedings concerning B's violence against the applicant. Furthermore, it was applied several years after the applicant had reported frequent incidents involving verbal and physical violence and death threats by B. The Court also notes that the Government have provided no information as to whether an individual programme for the execution of B's prison term was designed by the prison governor as required under section 69 of the Enforcement of Prison Sentences Act. An individual programme of this kind in respect of B takes on additional importance in view of the fact that his prison term was combined with a measure as significant as compulsory psychiatric treatment ordered by the domestic courts in relation to the serious death threats he had made (see, by way of comparison, Branko Tomašić and Others v. Croatia, no. 46598/06, § 56, ECHR 2009 ‑ ... ).", "72. In this connection the Court notes that as early as December 2004 a psychiatrist who examined B found that he suffered from chronic PTSD, with symptoms that included lowered tolerance of frustration, latent aggressiveness, a worsening of his condition and impaired social functioning, in particular in family life. In another psychiatric report, dated January 2008, it was found that B was in need of continuing psychiatric control and supervision and that a regular programme of therapy would preserve his relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment.", "73. In one set of minor offences proceedings on charges of domestic violence, a decision of 2 October 2006 ordered that the applicant should undergo psycho-social treatment in order to address his mental health problems in connection with his violent behaviour (see paragraph 3 1 above). However, owing to the lack of licensed individuals or agencies able to execute such a protective measure, it was never enforced (see §§ 31-33 above).", "(iii ) Fines", "74. The Court notes that the Government have not submitted any information showing that the fine of HRK 2,000 which B was ordered to pay in the minor offences proceedings on 20 November 2006 has been enforced. Further to that, in another set of minor offences proceedings, he was ordered to pay a fine in the amount of HRK 7,000 on 19 July 2007. However, the national courts allowed these proceedings to become time-barred when they were pending before the appeal court.", "(c) Conclusion", "75. The Court stresses that its task is not to take the place of the competent Croatian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46).", "76. In line with the principle stated above, the Court is also aware that it is for the national authorities to organise their legal systems so as to comply with their positive obligations under the Convention, and in that respect it is of course possible to conduct separate sets of criminal proceedings against the same defendant in respect of different criminal offences involving the same victim. However, in a situation such as the one in the present case, where different sets of criminal and minor offences proceedings concerned a series of violent acts by the same person, namely B, and against the same victim, namely the applicant, it appears that the requirement of effective protection of the applicant's right to respect for her private life would have been better satisfied had the authorities been in a position to view the situation as a whole. That would have given them a better overview of the situation and an opportunity of addressing the need to protect the applicant from various forms of violence in the most appropriate and timely manner.", "77. The Court recognises that the national courts instituted several sets of minor offences and criminal proceedings against B, in the context of which they ordered certain measures such as periods of pre-trial detention, psychiatric or psycho-social treatment, restraining and similar orders and even a prison term. By ordering these measures the Croatian authorities showed that they considered them adequate and necessary in order to address the situation of violence against the applicant. The Court cannot but agree with that approach.", "78. The national courts never overturned the measures in question or held that they were no longer necessary. However, as explained above in detail, many of these measures, such as periods of detention, fines, psycho-social treatment and even a prison term, have not been enforced (see paragraphs 6 8 -7 4 above) and the recommendations for continuing psychiatric treatment, made quite early on, were complied with as late as 19 October 2009 and then in the context of criminal proceedings unrelated to the violence against the applicant. In addition, it is not certain that B has as yet undergone any psychiatric treatment (see paragraph 2 3 above ). The Court stresses that the main purpose of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be achieved without the sanctions imposed being enforced.", "79. The national authorities failed to implement measures ordered by the national courts, aimed on the one hand at addressing B's psychiatric condition, which appear to have been at the root of his violent behaviour, and on the other hand at providing the applicant with protection against further violence by B. They thus left the applicant for a prolonged period in a position in which they failed to satisfy their positive obligations to ensure her right to respect for her private life.", "80. There has accordingly been a violation of Article 8 of the Convention. In view of that finding, the Court considers that no separate issue remains to be examined under Articles 2 and 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "81. The applicant further complained of the unfairness of the criminal and minor offences proceedings instituted against B. She relied on Article 6 § 1 of the Convention, the relevant part of which provides :", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "82. The Court notes that the applicant cannot rely on Article 6 of the Convention in so far as her complaint relates to criminal proceedings against third persons. Furthermore, the complaints made by the applicant have been examined above in connection with the complaint under Article 8 of the Convention.", "83. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "84. The applicant alleged that she had no effective remedy in respect of her complaint under the Convention. She relied on Article 13 of the Convention, which provides :", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "85. The Government contested that argument.", "86. The Court notes that this complaint is linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible.", "87. The applicant argued that because of the failure of the national authorities to enforce their own decisions adopted in various proceedings instituted against B on charges of verbal and physical violence against her, she had no effective remedy by which to obtain protection against B's violence. The Court notes that these very same issues have already been examined above under Article 8 of the Convention and have led to a finding of a violation of that Article. Therefore, the Court considers that in the specific circumstances of the present case it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "88. The applicant further complained that the relevant laws relating to domestic violence were insufficient and ineffective and that since acts of domestic violence were predominantly committed against women, those laws were also discriminatory. She relied on Article 14 of the Convention, which provides :", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "1. The parties'submissions", "89. The applicant concentrated her arguments concerning the alleged violation of Article 14 on three main points. Firstly, she argued that the legislation pertinent to the incidents of domestic violence was discriminatory in that it provided for minor offences proceedings in respect of all acts of domestic violence, including instances of serious physical abuse, while such violence occurring outside a domestic context was dealt with through ordinary criminal-law mechanisms. Furthermore, although a measure of compulsory psychiatric treatment was provided for by law, in practice it had been entirely ineffective.", "90. Secondly, she argued that although the Government had adopted two national strategies for protection against domestic violence (in 200 5 and 20 08 ) neither had been implemented. In that connection she stressed that the training of experts working in the context of domestic violence was insufficient and that there had been no evaluation of such training.", "91. Thirdly, the applicant maintained that the statistics relating to the application of protective measures under the Protection against Domestic Violence Act showed that in 2007, in the City of Zagreb, 173 cases concerning domestic violence had been processed under that Act. In 98 of these cases a request had been made for the application of protective measures; such measures had actually been applied in only eleven cases, while in 40 cases they had been refused and in 47 cases a judge had made no comments on the request for a protective measure. The applicant submitted further official statistics showing that out of 172 sets of minor offences proceedings conducted in 2007, 132 had ended by finding both (former) spouses guilty. Of these, 70 cases had resulted in a sentence of imprisonment, 38 of which had been suspended. In the remaining 16 cases in which only one (former) spouse was found guilty, men had been the perpetrators in 14 cases and women in 2, while the other cases had been terminated without a conviction.", "92. Separate statistics were submitted regarding the length of proceedings instituted under the Protection against Domestic Violence Act before the High Minor Offences Court, which is an appeal court in minor offences cases. In 2007 that court received 1, 568 cases under the said Act. In 461 cases the proceedings had lasted thirty days, in 574 cases between 31 and 60 days, in 420 cases they had lasted between 61 and 120 days and in 67 cases more than 121 days.", "93. The Government argued that there had been no discriminatory treatment of the applicant by any of the authorities involved. Unlike in the Opuz case (see Opuz v. Turkey, no. 33401/02, ECHR 2009 ‑ ... ), the facts of the present case showed that none of the authorities had treated the incidents of violence against the applicant as a family matter they could not interfere with. Furthermore, none of the officials had in any manner tried to dissuade the applicant from pursuing her claims against B.", "2. The Court's assessment", "94. The Court has already accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of gender, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Oršuš and Others v. Croatia [GC], no. 15766/03, § 150, ECHR 2010 ‑ ... ), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 -VIII). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see Oršuš and Others, cited above, § 1 50 ).", "95. The Court notes that in Opuz, on the basis of reports submitted by the applicants and prepared by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee, the Diyarbakır Bar Association and Amnesty International, it found that general and discriminatory judicial passivity in Turkey, albeit unintentional, had mainly affected women, and considered that the violence suffered by the applicant and her mother could be regarded as gender-based violence which was a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, as found in that case, indicated that there had been insufficient commitment to take appropriate action to address domestic violence ( see Opuz, cited above, § 200).", "96. In support of these findings the Court relied on the Turkish Government's recognition of the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence, and judicial passivity in providing effective protection to victims (see Opuz, cited above, § 192). Furthermore, the reports submitted indicated that when victims reported domestic violence to police stations, police officers did not investigate their complaints but sought to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers considered the problem as a family matter with which they could not interfere (see Opuz, cited above, §§ 92, 96, 102 and 195 ). The reports also showed that there were unreasonable delays in issuing injunctions and in serving injunctions on the aggressors, given the negative attitude of the police officers. Moreover, the perpetrators of domestic violence did not seem to receive dissuasive punishments, because the courts mitigated sentences on the grounds of custom, tradition or honour (see Opuz, cited above, §§ 91-93, 95, 101, 103, 1 06 and 196 ).", "97. The Court notes at the outset that in the present case the applicant has not submitted any reports in respect of Croatia of the kind concerning Turkey in the Opuz case. There is not sufficient statistical or other information disclosing an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the Croatian authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law. The applicant did not allege that any of the officials involved in the cases concerning the acts of violence against her had tried to dissuade her from pursuing the prosecution of B or giving evidence in the proceedings instituted against him, or that they had tried in any other manner to hamper her efforts to seek protection against B's violence.", "98. Starting from the arguments submitted by the applicant (see paragraphs 89 -9 2 above), the Court will proceed to examine whether they disclose prima facie evidence of discrimination on the basis of gender.", "99. As regards the applicant's arguments related to the legislative provisions covering the incidents of domestic violence, the Court stresses that it is for legislators and politicians to deal with the issues pertinent to devising general criminal policy, including the prevention of crime, in a given legal system (see Branko Tomašić and Others, cited above, § 7 3 ). The Court's task is to review under the Convention the decisions that those authorities have taken.", "100. The Court notes that, in Croatia, incidents of domestic violence may be addressed both in minor offences proceedings and in ordinary criminal proceedings. In the Court's view, the fact that certain acts of domestic violence may be the subject of minor offences proceedings does not in itself appear discriminatory on the basis of gender. In this connection the Court notes that various types of sanctions and measures may be applied in those proceedings, such as fines of up to HRK 10,000, a prison term of up to sixty days and the preventive measures listed in sections 7-10 of the Protection against Domestic Violence Act (see paragraph 4 2 above). In addition to that the criminal offence of violent behaviour within the family under Article 215a of the Criminal Code is punishable by a prison term ranging from six months to five years. In the Court's view the legislative framework in question does not show any appearance of discrimination on the basis of gender. Thus, in the present case several sets of both minor offences and criminal proceedings were instituted against B.", "101. The Court has already established that not all the sanctions and measures ordered or recommended in the context of these proceedings were complied with. While this failure appears problematic from the standpoint of Article 8 of the Convention, it does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender in respect of the applicant.", "102. As regards the national strategies for protection against domestic violence adopted in 2008 and 2010, the Court notes that the applicant's allegation that the training of relevant experts had been insufficient is unsupported by any relevant examples, data or reports and cannot in itself lead to a conclusion of gender discrimination in the treatment of incidents of domestic violence in Croatia.", "103. As regards the statistics concerning the implementation of protective measures, the information submitted is again incomplete and unsupported by relevant analysis and thus not capable of leading the Court to draw any conclusions on that basis. As regards the other statistics submitted, the only worrisome data is that out of 173 sets of minor offences proceedings conducted in 2007 in connection with incidents of domestic violence, in 132 sets of proceedings both spouses were found guilty. However, no such findings were made in the cases concerning the applicant.", "104. Against the background described above, the Court finds that the applicant has not produced sufficient prima facie evidence that the measures or practices adopted in Croatia in the context of domestic violence, or the effects of such measures or practices, are discriminatory. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "105. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "106. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.", "107. The Government deemed the amount claimed excessive and unsubstantiated.", "108. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 9 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.", "B. Costs and expenses", "109. The applicant also claimed HRK 8,659. 30 for the costs and expenses incurred before the Constitutional Court and HRK 23,515.60 for those incurred before the Court.", "110. The Government submitted that the applicant was not entitled to any costs and expenses before the national courts.", "111. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court accepts that the applicant's constitutional complaint was aimed at remedying the situation of violation claimed by the applicant in the present case. It therefore awards the claim for costs and expenses in the domestic proceedings in the amount of EUR 1,200 and considers it reasonable to award the sum of EUR 3,270 for the proceedings before the Court, plus any tax that may be chargeable to her on those amounts.", "C. Default interest", "112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1969 and lives in Budapest.", "A. Background of the case", "6. In July 2000 the applicant and her husband bought a flat which was part of an undivided shared property with one lot register number. Two thirds of the flat were registered in the applicant ’ s name and the rest in her husband ’ s name. Upon their subsequent divorce, an agreement was concluded by the applicant and her former husband on the division of the matrimonial property. According to this agreement, the applicant was to acquire the entirety of the property by buying his part of the flat.", "7. In April 2005 the applicant entered into an unregistered partnership with Mr. Gy.B. He paid the former husband ’ s share of the apartment, and later officially acquired ownership of this part of the flat by virtue of a sales agreement concluded with the former husband on 17 January 2006.", "8. Gy.B. made certain renovations to the property, creating two separate apartments. While the work was being carried out, the applicant moved into Gy.B. ’ s house with her children. She left him several times, after which she always returned to him.", "9. In March 2006 the applicant moved back into her apartment. Gy.B. had his own keys to the flat and slept there regularly. Later, on an unspecified date, he moved into the apartment to live with the applicant. Upon his request, the Central Document Bureau registered his place of residence at the applicant ’ s address on 24 November 2006.", "10. Barring some short periods of separation, their relationship lasted until about January 2007. Following this date, however, Gy.B. continued to stay in the jointly owned apartment against the applicant ’ s wishes.", "11. On 5 April 2007 Gy.B. sold his part of the flat to a third party. However, he later initiated proceedings against the buyer, challenging the validity of the sales agreement. These proceedings are still pending (see paragraph 28 below).", "B. Alleged assaults by Gy.B.", "12. Meanwhile, the relationship between the applicant and Gy.B. deteriorated, resulting in regular disputes involving mutual verbal and physical assaults.", "1. Events of 27 October 2005", "13. A medical report dated 27 October 2005, the first in the case, notes contusions of the applicant ’ s left ring-finger, left lower arm and left ankle. On 1 February 2008 the Budapest XX/XXI/XXIII District Court established that these injuries had been the result of assaults initiated by the applicant, to which Gy.B. ’ s reaction was considered lawful self- defence. It found the applicant guilty of disorderly conduct and released her on parole. This judgment became final in the absence of an appeal.", "14. Between this event and August 2010, twelve more medical reports were delivered, all of which recorded contusions, mostly on the applicant ’ s head, face, chest and neck, with an expected healing time of eight to ten days.", "2. Criminal proceedings against Gy.B. for alleged rape", "15. On 8 December 2006 the applicant filed a criminal complaint against Gy.B. for rape. On 16 April 2008 he was acquitted by the District Court. It found that the applicant ’ s allegations were not credible and therefore Gy.B. ’ s guilt could not be established with the required certainty. This judgment became final in the absence of an appeal.", "3. Events of 25 June 2007", "16. A medical report of 25 June 2007 states that the applicant ’ s left little finger had been violently broken, with a healing time of six to eight weeks. In connection with this event, criminal proceedings were initiated against both the applicant and Gy.B. On 19 May 2009 the District Court found Gy.B. guilty of assault, and the applicant guilty of grievous bodily harm. Gy.B. was released on parole for one year, the applicant for three years. No appeal was filed against this judgment. According to the findings of fact, Gy.B. had started verbally insulting the applicant and then assaulted her. The police had intervened and called on Gy.B. to cease the assault. However, as soon as the police had left, he had continued beating the applicant. The following day the dispute had continued with mutual insults. Gy.B. had poured water on the applicant, who had picked up a kitchen knife and lightly stabbed it in the air several times in Gy. B. ’ s direction. In self-defence, Gy.B. had grabbed the blade of the knife. The applicant had nevertheless pulled it out from his hand, cutting his hand and causing him an injury with a healing time of eight to twelve weeks.", "4. Criminal proceedings against Gy.B. for alleged assault, request for restraining order", "17. On 22 April 2008 the applicant lodged a criminal complaint against Gy.B. for assault before the District Court. On 11 June 2008 the court held a reconciliatory meeting where she further requested the District Court to issue a restraining order against him due to the regular abuse. On 18 December 2008 a hearing was scheduled concerning the request for a restraining order. However, the applicant did not attend due to a public transport strike planned for that day. The first hearing finally took place on 10 April 2009. The following hearing was to be held on 12 October 2009. However, it was postponed upon Gy.B. ’ s request. On 8 January 2010 the District Court finally delivered a decision concerning the request for a restraining order. In its reasoning, the court stated:", "“ ... There were, or are, five sets of criminal proceedings pending before this court between the accuser and the accused. In the course of the proceedings conducted so far, the court has established that the bad relationship which has developed between the parties can be imputed to both parties. ... The court heard both the accuser and the accused at the preparatory hearing, established that the conditions set down by the law had not been met, and therefore dismissed the accuser ’ s request. ... ”", "18. This decision was upheld on appeal by the Budapest Regional Court on 18 February 2010. According to the court:", "“ ... The reasons for the first-instance court ’ s decision are correct. Section 138/A(2) clearly defines the conditions where restraint, as a coercive measure, may be ordered. These circumstances were examined one by one and quite thoroughly by the first-instance court, which came to the conclusion that the conditions for a restraining order had not been met. The second-instance court agrees with these reasons and therefore upholds the decision. ... ”", "The criminal proceedings against Gy.B. for assault are still pending before the first-instance court.", "5. Criminal proceedings against Gy.B. for alleged harassment", "19. On 11 June 2008 the Budapest XX/XXI/XXXIII District Prosecutor ’ s Office discontinued the investigations initiated against Gy.B. for harassment. According to the applicant ’ s criminal complaint, he was jealous and had threatened to kill her and anyone she let into the flat. She also claimed that on several occasions he had tried to suffocate her with a pillow. The Prosecutor ’ s Office established that there was animosity between the parties and that the applicant ’ s allegations alone were not sufficient to prove the commission of any crime.", "6. Events of 18 December 2009", "20. According to the applicant, on 18 December 2009 Gy.B. inflicted contusions on her back, chest and wrist in the course of a fight. On that day, she lodged a criminal complaint against him with the Budapest XX/ XXIII District Police Department for insult and assault. Criminal proceedings against an unknown individual were initiated for grievous bodily harm. However, on 14 July 2011 the investigation was discontinued, as a forensic medical report established that the injuries were not serious enough.", "7. Criminal complaint for alleged assaults in December 2009 and January 2010", "21. On 7 January 2010 the applicant lodged another criminal complaint against Gy.B. for several alleged assaults committed in December 2009 and January 2010. Gy. B. ’ s psychiatric examination was ordered. Due to his lack of co-operation, the expert could not form an opinion about his mental state. These investigations are pending.", "8. Criminal proceedings against Gy.B. for alleged assault", "22. On 12 January 2010 the District Court acquitted Gy.B. of the charges of assault allegedly committed on 3 October 2007, in the absence of sufficient evidence. This judgment was upheld on appeal by the Regional Court on 1 June 2010.", "9. Events of 15 and 26 April 2010, second request for a restraining order", "23. A medical report of 15 April 2010 records that the applicant suffered brain concussion and lost consciousness following physical abuse resulting in injuries with a healing time of ten to twelve days. She was kept in hospital for two days. Following this event, another dispute arose between the cohabitees, leading to assault on 26 April 2010.", "24. On 3 May 2010 the applicant therefore lodged another criminal complaint with the District Police Department against Gy.B. , who also lodged a criminal complaint in connection with the same events. The cases were joined. On the same day the applicant also requested the court to issue a restraining order in respect of Gy.B. based on section 138/A of the Code of Criminal Procedure. The request for a restraining order was dismissed on 10 June 2010. According to the reasoning :", "“ ... At the preparatory hearing the court heard both the accused and the accuser and established that the conditions set by law – in particular the phrases “ particularly in view of the nature of the criminal act ... and the relationship between the accused and the aggrieved party ” [ sic ] had not been met, therefore the accuser ’ s request was dismissed. ”", "25. The Regional Court upheld the first-instance decision on 16 July 2010. It found :", "“ ... Several criminal proceedings were initiated or are pending against the parties, and the inobservance of cohabitation rules is typical in respect of both parties. No evidence has arisen in the present proceedings that the proceedings would be hampered by [Gy.B.] influencing or intimidating the aggrieved party. The risk of recidivism is supported in respect of both parties by the previous proceedings, but the ordering of a coercive measure only in respect of one party – in the present case against Gy.B. – is not justified due to the involvement of the aggrieved party. ... ”", "26. The District Court delivered judgment on 6 July 2011. It found both the applicant and Gy.B. guilty of assault and ordered them to pay a fine. It established that on the first occasion it had been the applicant who had initiated the assault and Gy.B. had acted in legitimate self - defence. On the second occasion, it had been Gy.B. who had initiated the fight and the applicant had acted in legitimate self- defence.", "10. Overview of criminal proceedings", "27. In sum, the applicant requested the help of the authorities on many occasions, lodging criminal complaints for assault and harassment. Gy.B. also lodged several criminal complaints against the applicant.", "On four occasions, Gy.B. was acquitted of the charges ( see paragraphs 13, 15, 22 and 26 above). On five occasions the applicant did not wish to continue the proceedings or failed to prosecute privately and the court thus discontinued them. Gy.B. was found guilty of assault on two occasions (see paragraphs 16 and 26 above ), released on parole and ordered to pay a fine. Two other sets of criminal proceedings for assault are pending against him (see paragraphs 18 and 21 above).", "The applicant was also found guilty on several occasions (see paragraphs 13, 16 and 26 above ) of disorderly conduct, grievous bodily harm and assault, respectively. Three investigations against her – for grievous bodily harm, harassment and theft – were discontinued. Criminal proceedings for trespass are pending against the applicant (see paragraph 3 5 below ).", "C. Action taken to order Gy.B. to leave the apartment", "28. On 3 November 2005 Gy.B. initiated civil proceedings before the Regional Court against the applicant, requesting the court to acknowledge the renovation and building he had carried out in the apartment. Upon his request, the proceedings were suspended on two occasions, from January 2006 until June 2006 and from 30 April 2008 until 19 November 2008, pending the outcome of separate proceedings initiated against third parties for the annulment of the sales agreement. The applicant ’ s appeal against the suspension was dismissed on 19 November 2008.", "29. Meanwhile, on 9 August 2006 the applicant initiated civil proceedings against Gy.B. before the District Court, requesting the court to establish the ownership of the apartment. On 2 March 2007 the proceedings were suspended until the termination of the proceedings mentioned in paragraph 28 above. No appeal was submitted against the suspension.", "30. Upon a criminal complaint lodged by the applicant on 29 November 2006, regulatory offence proceedings were also initiated before the Budapest XX District Mayor ’ s Office against Gy.B. for trespass. On 2 August 2007 the proceedings were discontinued, as Gy.B. was, at that time, registered as the property ’ s owner in the land register. The applicant ’ s complaint against the decision was dismissed on 23 August 2007. The applicant did not seek to prosecute privately.", "31. In March 2007 Gy.B. changed the locks on the apartment but did not provide the applicant with keys. Therefore, the applicant requested the protection of her possession from the Budapest XX District Notary. On 13 August 2007 the Notary found for her and ordered Gy.B. to provide her with keys to the apartment.", "32. On 11 May 2007 the applicant changed the locks on her door in an attempt to prevent Gy.B. from re-entering the apartment. On the same day he arrived with police officers who obliged her to provide access to him, as his registered place of residence was the apartment.", "33. On 19 March 2008 the applicant requested the District Notary to delete her address as the place of residence of Gy.B. and to order him to leave the apartment. However, as it was not the competent authority to do so, the notary dismissed her request without an examination on the merits, on 2 June 2011. Moreover, as Gy.B. was actually living in the apartment, the deletion of her address as his place of residence was not possible. The applicant did not lodge an appeal against that decision.", "34. Further to this, on 9 April 2008 the applicant initiated civil proceedings before the District Court, requesting the court to order Gy.B. to leave the apartment. The proceedings are still pending, the court having suspended them on 5 September 2008 pending the outcome of the property dispute between Gy.B. and the applicant mentioned in paragraph 28 above.", "35. On 2 August 2010 the applicant again changed the locks on the doors in order to prevent Gy.B. entering the apartment. The District Police Department initiated criminal proceedings against her for trespass. The applicant lodged a complaint in this connection, which was dismissed on 6 September 2010." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Act no. XIX of 1998 on the Code of Criminal Procedure", "Section 138/A – Restraining Order", "“ (1) A restraining order restricts the right of the accused to free movement and the free choice of residence. The accused under the effect of a restraining order shall, in line with the rules established by the court decision,", "a) leave the dwelling specified by the court and keep away from such dwelling for a period prescribed by the court,", "b) keep away from the person specified by the court, and from this person ’ s home, workplace, ... for a period specified by the court,", "c) refrain from directly or indirectly contacting the person specified by the court.", "(2) A restraining order may be issued in case of a well-founded suspicion of a criminal act punishable by imprisonment having been committed – provided that the purpose of the restraining order may be fulfilled and if pre-trial detention of the accused is not necessary – and if, particularly in view of the nature of the criminal act, the behaviour of the accused prior to and during the procedure and the relationship between the accused and the aggrieved party, there is well-founded reason to assume that if left in the residential environment, the accused would", "...", "b) carry out the attempted or planned criminal act or commit another criminal act punishable by a prison sentence against the aggrieved party. ...", "(4) A restraining order shall be issued by order of a court. ... ”", "36. A restraining order is valid between ten and sixty days.", "B. Act no. IV of 1978 on the Criminal Code", "Section 176 – Criminal Trespass", "“ (1) A person who enters or remains in another person ’ s home, other premises or fenced off area which constitutes part of the property, by force, menace, or on the false pretext of carrying out official duties, shall have committed a misdemeanour punishable by imprisonment of up to two years. ”", "C. Act no. LXXII of 2009 on Restraining Order due to Violence among Relatives", "37. This law enables the police to place a temporary restraining order on the perpetrator for seventy-two hours, inter alia, if it finds evidence of domestic violence upon an onsite visit, or upon the report of the aggrieved party. The courts may issue a restraining order for up to thirty days.", "38. However, the Act is only applicable to the relationships listed in it (section 1 subsection 5), and former common-law spouses do not fall within its scope if the relationship has not been previously registered.", "D. Act no. LXVI of 1992 on the Registration of Citizens ’ Personal Data and Residence", "39. According to section 26( 4 ), the registration of a place of residence does not create any pecuniary rights or rights concerning the use of the property.", "E. Act no. IV of 1959 on the Civil Code", "40. If a possessor ’ s ownership rights are interfered with, section 188(1) of the Civil Code provides for the protection of the possession (“ birtokvédelem ”) from any specified person. Application of this measure may be requested from the notary within one year of the beginning of the interference. The decision taken by the notary is subject to appeal before the domestic courts. If more than one year has passed, the discontinuance of the interference may be directly requested from the courts.", "F. Act no. III of 1952 on the Code of Civil Procedure", "41. Section 156( 1 ) of the Code of Civil Procedure allows a party to request the courts, as an interim measure, to execute his or her claim or request for an interim measure to be applied, if it is necessary, inter alia, in order to prevent imminent damage from materialising or if the petitioner ’ s legal protection merits special consideration.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "42. The applicant complained that the Hungarian authorities failed to take positive measures to protect her from her violent former common-law husband. She relied on Articles 2, 3 and 8 of the Convention. The Court finds that this complaint should be analysed under Article 8, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "43. The Government contested that argument.", "A. Admissibility", "1. The Government ’ s arguments", "44. The Government acknowledged that the applicant had submitted several criminal complaints for harassment, assault and trespass. However, they maintained that the applicant had failed to avail herself of all effective domestic remedies. In particular, she had failed to pursue several of her criminal charges for assault and thus the cases were discontinued. In addition, the Government argued that there had been no evidence or even indication that the applicant had been forced in any way or intimidated by the alleged perpetrator to withdraw her charges. Concerning her complaints of harassment and trespass, she had failed to file a private lawsuit after the discontinuation of the investigations. Furthermore, she had not appealed against the criminal judgments convicting her.", "45. Apart from the failure to make full use of the criminal law remedies, the Government were of the view that the applicant had also failed to make effective use of the remedies under civil law. Firstly, she had not requested the protection of her possession from the notary or the court, despite the possibility provided by the Civil Code. The fact that she requested the notary on one occasion to ensure she was provided with keys to the apartment (see paragraph 31 above ) could not, in their opinion, be considered as a request for protection of a possession. Moreover, in the course of such proceedings, she could have requested an interim measure to be applied under section 156( 1 ) of the Code of Civil Procedure granting her exclusive possession of the apartment in question.", "46. In the Government ’ s view, the obligation to exhaust domestic remedies could not be regarded as having been fulfilled by the applicant ’ s request to the notary to delete her address as Gy.B. ’ s place of residence (see paragraph 33 above). According to their reasoning, this request could not have provided effective redress for the applicant ’ s grievances as the registration of a place of residence did not create any rights concerning the use of real estate (see paragraph 39 ), therefore its deletion could not extinguish any rights either. In any event, the applicant had failed to seek judicial review of the notary ’ s decision.", "2. The applicant ’ s arguments", "47. The applicant disputed the Government ’ s arguments in general terms. She contended that the violation not only derived from the State ’ s actions, but also from its failure to act, against which no effective remedy was available.", "3. The Court ’ s assessment", "48. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74 and 75, ECHR 1999 ‑ V, and Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 35-37, 15 January 2009 ).", "49. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200 ). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40 ). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV ).", "50. Turning to the particular circumstances of the case, the Court notes the Government ’ s observations that the applicant failed to pursue her criminal complaints, and that she did not request the protection of her possession from the domestic courts. However, it observes that the applicant availed herself of several other remedies provided by domestic law. These proceedings, namely repeated requests for a restraining order and a civil claim to order Gy.B. to leave the flat (see paragraphs 17, 24 and 34 above), could in principle, if pursued successfully, have led to the removal – if only temporary – of Gy.B. from the flat the applicant lives in. In this connection the Court points out that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004 ‑ V (extracts); and Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII (extracts ) ).", "51. The Court further notes that there are three separate sets of civil proceedings pending before the domestic courts between the applicant and Gy.B., all of which have been suspended until the determination of yet another civil dispute. The Court therefore considers that for the applicant to avail herself of an additional civil action for the protection of her possession would be redundant.", "52. In these circumstances the Court is satisfied that the applicant has thus exhausted domestic remedies. Consequently, the Government ’ s objection must be dismissed. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "53. The applicant pointed out that while the Government had emphasised the difficulties in reconstructing the facts of an act which had happened behind closed doors, they had not taken into real consideration the positive obligation of the State to protect her private and family life. Her right to physical integrity had required the domestic authorities to decide on her civil disputes with Gy.B. within a reasonable time. The applicant further argued that a remedy which was slow could not be regarded effective. In her opinion, Article 8 of the Convention included her right to use her home being secure in her person and without disturbance.", "(b) The Government", "54. The Government submitted that the Hungarian authorities had taken all measures which could reasonably be expected of them in the particular circumstances of the case in order to protect the applicant ’ s physical well-being, therefore meeting the State ’ s positive obligations.", "55. As to the applicant ’ s injuries, the Government wished to point out that the applicant had exaggerated the severity of the abuse suffered by her and that her allegations had not always been credible. The authorities had had to respect Gy. B. ’ s right to be presumed innocent and the principle of in dubio pro reo. As the domestic courts had had the benefit of a direct hearing, they had been in the best position to assess the credibility of the applicant ’ s allegations.", "56. Lastly, the Government observed that the applicant herself had also initiated assaults against Gy.B. and had been found guilty of acts of violence towards him. The fact that in many cases she had also benefited from the principle of in dubio pro reo shows that the authorities were not prejudiced against her.", "57. In sum, the Government maintained that in the above -described circumstances, no further action could reasonably have been taken by the Hungarian authorities to protect the applicant ’ s physical well-being.", "2. The Court ’ s assessment", "(a) General principles", "58. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 22 and 23, Series A no. 91; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002 ‑ I; and Sandra Janković v. Croatia, no. 38478/05, § 44, 5 March 2009 ).", "59. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person ’ s physical and psychological integrity. Under Article 8, States have a duty to protect the physical and psychological integrity of an individual from threats by other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C; and Sandra Janković, cited above, § 45). For the Court, these considerations equally apply in situations where an individual ’ s right to the enjoyment of his or home free of violent disturbance is at stake.", "(b) Application of the above principles to the present case", "60. The main issue in the present case is whether the State complied with its positive obligation to protect the physical integrity of the applicant from the threat posed by her former common-law husband. The applicant involuntarily shares her home with this person, which is aggravated by the fact that their relationship has deteriorated to such an extent that disputes - including mutual verbal and physical assaults - occur on a regular basis. Her civil actions and criminal complaints were to no avail.", "61. In this connection, the Court reiterates that there is no doubt that the events giving rise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. The facts outlined above show that the applicant made credible assertions that over a prolonged period of time Gy.B. presented a threat to her physical integrity in her apartment and actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her former common-law husband exerted in her home, notwithstanding the fact that she had also been violent towards him.", "62. The Court notes that the national courts instituted several sets of criminal proceedings against Gy.B. Having been found guilty on two occasions, he was released on parole and ordered to pay a fine. Two other sets of criminal proceedings for assault are pending against him. The Court is mindful of the fact that domestic courts are better placed to examine the issue before them and to ascertain the circumstances of the case, as they have the benefit of hearing the parties in person and examining the evidence. Moreover, the Court acknowledges that in a criminal case, the principle of in dubio pro reo serves as an important guarantee against arbitrary judgments.", "63. The Court stresses that its task is not to take the place of the competent Hungarian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46). Moreover, the Court is aware that in respect of a measure of restraint ordered against an individual, the interest of the protection of a person ’ s physical integrity conflicts with the other person ’ s right to liberty.", "64. Notwithstanding the aforementioned, the Court finds it striking that the authorities needed more than one and a half years to decide on the applicant ’ s first request for a restraining order (see paragraphs 17 and 18 above). The fact that the applicant failed to appear at the first hearing and that Gy.B. requested the postponement of another hearing cannot justify the unreasonably long duration of the proceedings. The rationale of such a measure is to provide immediate or at least prompt protection for victims of violence. Even if the request is eventually dismissed, a decision should be taken without delay. The problem is further aggravated by the lack of legal deadlines for such decisions.", "65. As to the dismissal of the applicant ’ s requests for a restraining order, the Court takes the view that the domestic courts failed to give sufficient reasons for their decisions. On both occasions, the courts referred to the hearings held in this matter, but apart from stating that the bad relationship was imputable to both parties and that the conditions for issuing a restraining order had not been met, they failed to put in writing the particular reasons justifying their decision.", "66. The Budapest Regional Court acknowledged the risk of recidivism; however, it took the view that restraining order could not be issued as both parties were involved in the assaults. In this respect, the Court notes that if it could not be ordered in cases of mutual assaults, then the aim of providing effective protection to victims would be seriously undermined. The possibility that the victim acted in legitimate self-defence cannot be ruled out at that stage. Precisely this was established by the XX/XXI/XXIII District Court in its judgment of 6 July 2011 (see paragraph 26 above). The domestic court ’ s reasoning that a restraining order could not be issued in view of the aggrieved party ’ s involvement is therefore not acceptable. Moreover, in the case of mutually violent parties, restraining orders should be issued in respect of both parties in order to prevent contact between them.", "67. The considerations above are further aggravated by the fact that the applicant falls outside the personal scope of the Act on Restraining Order due to Violence among Relatives (see paragraph 38 above). Though divorced people and former registered partners receive the same protection as married people, this is not afforded where the perpetrator is the former common-law husband and that tie was not registered with the authorities. While accepting that the legislature may legitimately seek to protect those within specific, recognised relationships, the Court observes nonetheless that the applicant was excluded from the protection of this Act.", "68. Lastly, the Court must draw attention to the fact that there are three different sets of civil proceedings pending before the domestic courts concerning the apartment in question. These proceedings, namely an action initiated by the applicant to order Gy.B. to leave the apartment (see paragraph 34 above) and two sets of proceedings for the determination of ownership (see paragraphs 2 8 and 29 above) would, in theory, be capable of eradicating the root of the problem, which is the unwanted residence of Gy.B. in the flat. In light of the regular and rather violent disputes between the parties and the fact that those proceedings have been suspended since 2007 and 2008, respectively, the Court finds that the domestic courts failed to comply with their positive obligation to decide the cases within a reasonable time.", "69. Having regard to the foregoing, and notwithstanding the respondent State ’ s margin of appreciation in the matter, the Court concludes that the Hungarian authorities failed to fulfil their positive obligations.", "70. There has accordingly been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 13 OF THE CONVENTION", "71. Relying on Articles 2 and 3 of the Convention, the applicant complained that the Hungarian authorities failed to take positive measures to protect her from her violent former common-law husband. Moreover, invoking Article 13 of the Convention, the applicant maintained that the remedies offered were ineffective and failed to provide sufficient protection to her.", "72. The Government contested these arguments in general terms. They pointed out in particular that Article 13 of the Convention does not require that recourse to a remedy always be successful irrespective of an unfounded claim. They argued that in the present case the applicant was able to raise her arguable claims of ill-treatment before the competent authorities but her claims were not found to be justified. The remedies provided for by the Hungarian criminal law qualify as effective remedies for well-founded claims. Therefore, the Government considered that the applicant ’ s complaint under Article 13 of the Convention was manifestly ill-founded.", "73. Regard being had to its finding of a violation of Article 8 of the Convention (see paragraph 70 above), the Court, while declaring these complaints admissible, does not consider it necessary to examine them separately under Articles 2, 3 or 13 of the Convention, their essence having already been dealt with in the context of Article 8.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "74. Relying on Article 14 of the Convention, the applicant complained that the inaction of the authorities might have been based on discrimination against her on account of her Roma origin.", "75. The Court observes that the applicant has failed to show that she was treated differently compared to other persons in analogous situations. There is nothing to suggest that the authorities ’ decisions were motivated by discrimination. This part of the application is thus unsubstantiated and should be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "77. The applicant claimed 1,500,000 Hungarian forints ( HUF) [1] in respect of non-pecuniary damage sustained on account of the physical and psychological suffering caused by the violation.", "78. The Government found the applicant ’ s claim to be excessive.", "79. The Court considers that the applicant must have sustained some non-pecuniary damage and awards her the full sum claimed, that is, EUR 5,150.", "B. Costs and expenses", "80. The applicant did not submit a separate costs claim.", "C. Default interest", "81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1982 and lives in Rivne. She is a registered disabled person with a category 3 disability [1] who lives off her disability pension and child support allowances. She was granted legal aid and was represented by Ms N.A. Bukhta, a lawyer practising in Rivne.", "3. The Government were represented by their Agent, Mr I. Lishchyna.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. In 2002 the applicant had a son.", "6. On 26 May 2006 the applicant married O.L. The couple installed themselves in a flat in Rivne co-owned by O.L. and his mother.", "7. In January 2007 the applicant and O.L. had triplets (three girls).", "8. In view of the multiple birth, in February 2008 the Rivne City Council provided the applicant and O.L. with social housing – a flat which they could occupy as protected tenants, together with their triplets and the applicant ’ s son.", "9. According to the applicant, her relationship with O.L. gradually deteriorated because he abused alcohol and, under its influence, started arguments, harassed and threatened her and the children, and sometimes resorted to physical violence against her. On various occasions the applicant was so afraid of his violent outbursts that she fled to stay with relatives or acquaintances for periods of time.", "10. On 18 March 2009 the Rivne regional forensic bureau certified that the applicant had a broken nose and haemorrhages around her eyes. According to the applicant, these injuries were the result of one of her arguments with O.L. It appears from the case file that this incident generated no formal follow-up proceedings.", "11. On 13 January 2011 an acquaintance of the applicant, S.L., lodged a complaint with the Rivne police, informing them that O.L. had hit the applicant during an argument at home. The police refused to institute criminal proceedings, on the grounds that there was no corpus delicti in O.L. ’ s actions. That decision was not appealed against.", "12. In April 2015 the applicant instituted civil proceedings, complaining that O.L. had not been contributing to meet the financial needs of their children.", "13. In June 2015 the Rivne Town Court issued a judgment establishing how much O.L. should pay the applicant in child support.", "14. On 10 June 2015 the applicant lodged a criminal complaint with the police, informing them that at about 9 p.m. on 31 May 2015 O.L. had kicked her during an argument at home.", "15. On 11 June 2015 criminal proceedings were initiated against O.L. under Article 125 of the Criminal Code (“the CC”) in relation to the alleged assault on the applicant.", "16. On 16 June 2015 the Rivne regional forensic bureau certified that the applicant had a subcutaneous haemorrhage on her right thigh.", "17. On 23 September 2015 the marriage between the applicant and O.L. was dissolved. Custody of all the children was given to the applicant. After the divorce, all the family members and O.L. remained living in the same flat.", "18. On 16 October 2015 the Rivne police closed the criminal proceedings initiated against O.L. in June because the applicant had withdrawn her complaint. The relevant decision stated that while it appeared that O.L. ’ s conduct fell within the ambit of Article 125 of the CC, in view of the applicant ’ s decision not to pursue her complaint as the injured party, the case material would be sent to a different police department for a decision on whether O.L. should be charged with an administrative offence. It appears that no further decision was taken in respect of this incident.", "19. On 11 November 2015 the applicant complained to the Rivne police that O.L. had not been paying child support. She presented a certificate from the State Bailiffs Service indicating that O.L. was seven months in arrears with regard to these payments. She alleged that although O.L. was officially unemployed, in fact he regularly performed odd jobs and was concealing his income. On the same date criminal proceedings were instituted in relation to this matter.", "20. When questioned by the police (in December 2015), O.L. acknowledged that he had not been paying child support. He explained that he was unable to make the payments which were due as he was unemployed and had no income. He assured the police that he would pay the arrears once he found a source of income and obtained the necessary means. It appears that the proceedings against O.L. were subsequently either closed or abandoned.", "21. On 23 November 2015 and 2 February 2016 the applicant made further calls to the police complaining that O.L. was harassing and mistreating her at their home. In response, the police authorities visited the applicant ’ s and O.L. ’ s home and carried out pre-emptive conversations.", "22. On 23 February 2016 the applicant made a further call to the police, complaining that O.L. was behaving aggressively under the influence of alcohol.", "23. On 12 March 2016 the applicant made a further call to the police, complaining that her husband had been harassing her. This call generated another police inspection and another oral warning for O.L., as indicated in a police report of 16 March 2016.", "24. On 18 March 2016 the chief of Rivne police decided that O.L. ’ s actions on 23 February 2016 (insulting and threatening the applicant and piercing a blanket with a knife) could be categorised as psychological harassment. He charged O.L. with the administrative offence of domestic violence under Article 173-2 of the Code of Administrative Offences (“the CAO”) and referred the case to the Rivne Town Court. It appears that no further decision was taken in respect of this police report.", "25. On 14 March 2016 the applicant complained to the Rivne municipal family, child and youth welfare service (“the family welfare service”) that her husband frequently acted abusively under the influence of alcohol, and she solicited their help in finding a structured solution.", "26. Between 14 and 22 March 2016 a group of people from the family welfare service conducted an assessment of the needs of the applicant ’ s family, during which they visited her flat and interviewed the triplets. According to the interview records, one of the girls stated that she loved both her parents, yet she was very distressed when her father came home drunk and became involved in arguments with her mother. Another girl stated that she had no respect for her father and hated it when he came home drunk. The third girl stated that she loved her mother, and she attempted to avoid speaking about her father. According to further records, the social workers were unable to interview O.L., as he was not at home during their visits. Their attempts to set up a separate appointment with him failed, as he either did not pick up the telephone or refused to meet the social workers, saying that he was very busy at work. As a result of the assessment, the welfare service drafted a report indicating that the children had generally been provided with the conditions necessary for their upbringing. However, their father neglected his parental responsibilities and engaged in violent arguments with the mother, which was intimidating and distressing for the children. The applicant was offered counselling support, which she declined at that time.", "27. On 24 March 2016 the family welfare service asked the police to follow up on the applicant ’ s family situation, in particular by having a pre-emptive conversation with O.L. and identifying whether there were any grounds for prosecuting him for domestic violence.", "28. On 5 April 2016 a police inspector who had been assigned that task reported that he had not been able to reach O.L. to schedule a meeting.", "29. In April 2016 staff members from the triplets ’ primary school – the principal, the school psychologist and the girls ’ class teacher – reported to the welfare service that the girls had generally integrated well into their school and social life. However, their home environment was distressing. The girls reported that their parents argued often. They enjoyed a good and trusting relationship with their mother and maternal relatives. As regards their father, they reported difficulties in trusting him, and felt that he often paid little attention to matters relating to them. They regularly saw him under the influence of alcohol, and were scared of his appearance and his unpredictable and sometimes violent conduct. The staff members were unaware of any incidents where the girls had been physically ill-treated by their father. However, they considered that the combination of his disengaged attitude and aggressive outbursts towards the mother had led to the girls being victims of “psychological ill-treatment”.", "30. On 13 April 2016 the applicant lodged a fresh complaint with the police, alleging that at about 10 p.m. on that date O.L. had had a new violent outburst: he had sworn at her, and had threatened and pushed her.", "31. On 18 April 2016 the Rivne regional forensic bureau certified that the applicant had haemorrhages on her right wrist, arm and leg, and a sprain of the aponeurosis in her right foot.", "32. On 5 July 2016, with respect to his conduct on 13 April 2016, the Rivne Town Court found O.L. guilty of an act of domestic violence within the meaning of Article 173-2 of the CAO. O.L., who took part in the hearing, acknowledged that he was guilty of the offence in question. The court also decided that O.L. could be relieved of formal liability for the offence and given only an oral reprimand, in view of the fact that the applicant had asked for this, as the parties had already resolved their differences.", "33. In the meantime, on 22 June 2016 the applicant had instituted civil proceedings in the Rivne Town Court, seeking to evict O.L. from their flat. Referring to Article 116 of the Housing Code, she alleged that living with him was impossible, as he was systematically abusing alcohol, mistreating, threatening and harassing her and the children, disrespecting their interests and having violent outbursts. Continuing to live with him would mean that she and her children, who were minors, would be at constant risk of being subjected to psychological harassment and physical violence. The applicant also argued that eviction would not place O.L. in a precarious situation, as he and his mother co-owned a flat in the same town.", "34. During the hearings concerning the eviction claim, three witnesses (the applicant ’ s sister and two friends) who were questioned by the court confirmed the applicant ’ s version of events and testified that O.L. had been abusing alcohol and mistreating his former spouse and children. In contrast, three other witnesses (O.L. ’ s brother and two people who were either his friends or relatives) suggested that the arguments had been caused by the applicant, who wanted to get rid of O.L. in order to gain full control of the flat. These witnesses also alleged that O.L. cared about the children and was a thoughtful father.", "35. In support of his case, O.L. also submitted two character references. The first one was from the management body of the building in which his and the applicant ’ s flat was located. This reference indicated that no complaints against him had ever been lodged by any building residents. The second was from a limited liability company called R., which indicated that O.L., one of their independent contractors, was highly esteemed as a diligent construction worker and a good team member.", "36. The applicant adduced documents concerning all her previous complaints of harassment and violence, and a new certificate from the State Bailiffs Service indicating that O.L. was at the material time eighteen months in arrears with regard to his child support payments.", "37. On 4 April 2017 the Rivne Town Court allowed the applicant ’ s claim and ordered O.L. ’ s eviction. In its judgment, the court noted, in particular, as follows:", "“... The court, having heard the [parties and their representatives], [and] the witnesses ..., [and] having examined the written evidence, has come to the following [conclusions]:", "...", "... the respondent abuses alcohol, constantly makes scenes and causes arguments, [and] intimidates [the applicant] in the presence of the children. [The respondent] behaves aggressively, [and] threatens the claimant with physical violence. [The claimant], along with her children, who are minors, has sometimes been forced to sleep at her acquaintances ’ homes, as she has been afraid to stay at home with the respondent. The claimant has repeatedly appealed to the law-enforcement bodies for the protection of her rights and those of her minor children. ... The respondent was subjected to ... measures to correct his behaviour in the form of pre-emptive conversations and warnings concerning the unacceptability of domestic violence, and a decision of the Rivne Town Court of 5 July 2016 found [him] guilty of an administrative offence under Article 173-2 [of the CAO]. The respondent was also prosecuted under Article 125 [of the CC] for a criminal offence, for inflicting minor injuries on the claimant.", "The above measures to correct [the respondent ’ s] behaviour did not bring about the desired result ...”", "38. O.L. appealed. He argued that the applicant had been causing arguments in order to separate him from the children and obtain pecuniary benefits from the flat. For the same reason, she had been exaggerating the situation and submitting vexatious complaints containing accusations which were not supported by evidence. Moreover, Article 116 of the Housing Code provided for the eviction of a resident whose misconduct was systematic, where less stringent measures in respect of that resident had proved to be ineffective. In his case, there was no evidence of systematic misconduct and several witnesses had testified in his favour. While some fights had taken place occasionally, all the evidence against him pertained to either 2011 or 2015-16. No fresh evidence of any arguments between him and his former spouse had been provided. As regards the flat which he co-owned, that flat was occupied by his mother and his brother ’ s family, and there was therefore no room for him.", "39. On 14 June 2017 the Rivne Regional Court of Appeal quashed the Town Court ’ s judgment and dismissed the applicant ’ s claim, finding that there were no grounds for applying such a radical measure as eviction, and that the conditions required by Article 116 of the Housing Code had not been fulfilled. The relevant part of the court ’ s ruling reads as follows:", "“It is apparent from the case-file material that on a number of occasions the applicant called the police to her home address and accused the defendant of having committed unlawful acts in respect of her and in respect of her family members; however, it has not been demonstrated that [O.L.] systematically breached the rules on living together and was found liable [on this account].", "...", "Of and by itself, addressing the competent authorities with complaints concerning a breach of the rules on living together, without those authorities applying measures to correct the behaviour of the [guilty] party concerned, is not grounds for eviction.", "Having evaluated every piece of evidence separately and jointly, the judicial panel concludes that the evidence provided by the parties demonstrates the existence of hostile, conflictual relations between the former spouses.", "In such circumstances, the judicial panel considers that the grounds for applying such an extreme measure as eviction in respect of the defendant are insufficient. At the same time, the judicial panel considers it necessary to warn [O.L.] that he needs to change his attitude towards the rules on living together with the members of his family [after the divorce]. ...”", "40. The applicant appealed on points of law. In particular, she argued that O.L. had already been found guilty of domestic violence in administrative proceedings, and had been prosecuted under Article 125 of the CC for a criminal offence for having assaulted her. She argued that O.L. had not corrected his conduct or attitude, and that living with him exposed her and the children to a considerable risk of harassment and violence. She also reiterated that he had another dwelling available.", "41. On 20 August 2018 the Supreme Court dismissed the applicant ’ s appeal on points of law, endorsing the findings of the Court of Appeal.", "42. On 11 October 2018 that decision was sent to the applicant by post.", "43. On 28 May 2019 the applicant, O.L., their daughters and the applicant ’ s son were granted ownership of the family flat under the national scheme allowing protected tenants to become the owners of their residences.", "44. At present, all of them still share the flat.", "45. In December 2019 the applicant filed a fresh criminal complaint against O.L. concerning a further violent outburst.", "46. On 26 November 2019 the applicant also initiated proceedings to deprive O.L. of his parental rights over their triplets, alleging that he systematically neglected their needs and avoided paying child support. Those proceedings are currently ongoing." ]

[ "RELEVANT LEGAL FRAMEWORK", "Relevant domestic lawThe Criminal Code (2002)", "The Criminal Code (2002)", "The Criminal Code (2002)", "47. Article 125 of the Code, in so far as relevant, reads as follows:", "Article 125. Intentional minor physical injury", "“ 1. Intentional minor physical injury shall be punishable by a fine of up to fifty times the non-taxable minimum income for citizens, or up to two hundred hours of community service, or correctional labour for up to one year. ...”", "The Code of Administrative Offences (1984)", "48. The relevant provision of the Code, Article 173-2, as worded at the material time, read as follows:", "Article 173-2. Act of domestic violence, failure to abide by a restraining order or evasion of a correctional programme", "“The commission of an act of domestic violence, that is, the intentional commission of any acts of a physical, psychological or economic nature (the use of physical force which does not result in physical pain and does not cause physical injuries; threats; insults; stalking; depriving a victim of his or her dwelling, food, clothes, other effects or funds to which he or she is entitled by law; and so on) which results in or could result in harm being caused to the victim ’ s physical or psychological health, as well as a person ’ s failure to abide by a restraining order issued in respect of him or her, [and] a person ’ s evasion of a correctional programme where that person has committed an act of domestic violence", "shall be punishable by thirty to forty hours of community service, or administrative detention for up to seven days. ...”", "The Housing Code (1983)", "49. Article 116 of the Code, in so far as relevant, reads as follows:", "Article 116. Eviction without the provision ... of another dwelling", "“If the tenant, members of his or her family, or others living with him or her ... systematically ... break the rules on ... living together, making it impossible for the other [people in the dwelling] to live with them in the same flat or house, and if measures of pre-emption and measures involving public pressure have not produced any positive result, those responsible shall be evicted at the request of ... interested persons, without another dwelling being provided for them. ...”", "Law of Ukraine “On the prevention and combatting domestic violence” (no. № 2229-VIII of 7 December 2017; “The Domestic Violence Act”)", "50. The Domestic Violence Act of 2017 entered into force on 7 January 2018, having replaced the preceding Law “ On the prevention of family violence ” (2001). According to Section 5 of the Act, the objectives of the State policy on prevention and combatting domestic violence were defined as follows:", "“ 1. State policy in the sphere of prevention and combatting domestic violence shall aim to ensure a comprehensive integrated approach towards eradication of domestic violence, provision of comprehensive assistance to the victims and affirmation of non-violent character of private relations.", "2. Main directions of the realisation of the State policy for prevention and combatting domestic violence shall be as follows:", "1) prevention of domestic violence;", "2) effective response to the incidents of domestic violence by way of development of the mechanism of interaction between the authorities exercising power in the sphere of prevention and combatting of the domestic violence;", "3) provision of assistance and protection to the victims, ensuring compensation of damage suffered as a result of domestic violence;", "4) proper investigation of the incidents of domestic violence, imposition of liability on offenders in accordance with the law and the modification of their conduct.”", "51. The Act provided, inter alia, for the creation of a Unified State Register of the incidents of domestic and gender-based violence (Section 16) and stipulated a series of “special measures on combatting domestic violence” for addressing victims ’ complaints. These measures included, in particular, urgent injunctive police order; restraining court order; placement of the offender on the preventive measures record; and placement of the offender into the special corrective programme (Sections 24 – 28).", "Resolution no. 2 of 12 April 1985 of the Plenary Supreme Court of Ukraine on issues arising in the courts ’ implementation of the Housing Code of Ukraine", "52. The Resolution, in so far as relevant, reads as follows:", "“17. When resolving cases [brought] under Article 116 of the [Housing Code] concerning the eviction of persons who systematically breach the rules on living together and make it impossible for others to live with them in one flat or house, it should be taken into account that where the person in question is guilty of persistent antisocial conduct, the eviction may take place, for instance, after a repeated breach, if pre-emptive measures ( попередження ) or measures involving public pressure have not brought about a positive result. [The measures to take into consideration include]..., in particular, pre-emptive measures applied by the courts, prosecutors, law-enforcement bodies [or] administrative commissions of executive committees, as well as measures involving public pressure applied at the meetings of residents of the apartment block or members of the housing cooperative, ... and [those applied] by other public organisations [operating] at the respondent ’ s place of employment or residence (regardless of whether an express warning has been given concerning a possible eviction). ...”", "Relevant domestic case-law concerning restraining ordersRuling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19", "Ruling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19", "Ruling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19", "53. In its ruling in the aforementioned case, the Supreme Court noted, in particular, as follows:", "“In April 2019 [the complainant] instituted proceedings seeking a restraining order on [her former husband]. ... [She] noted that [the respondent] had been subjecting her and their minor child to psychological [and] physical violence manifested through constant threats, intimidation, harassment, application of physical force, as well as interference with their use of [the room in the accommodation hall, in which the three of them resided].", "... [the complainant] requested to issue a restraining order in respect of [the respondent] for the period of six months ... in particular, by enjoining him from interfering with the use of the room [by herself and her minor son] and prohibiting him from accessing [or residing in] ... the aforementioned room.", "...", "When resolving such applications, the courts should comprehensively evaluate all the circumstances and evidence in the case, giving due deference to the rights and interests of the children and the parents, as well as ensuring that no unjustified restriction of the rights of one parent concerning the children takes place in the event that the demands of the other parent are not grounded and not justified.", "...", "In the case at issue it has been established that [the complainant] and [the respondent] are in hostile relations; conflictual situations often arise concerning residence in and the use of the room in the accommodation hall ...", "[The respondent] stated that he had no intention to let his former spouse ... and their minor son use the room ...", "Having established these circumstances, the first-instance court, with whose conclusions the court of appeal agreed, had correctly concluded that there are lawful grounds for issuing a restraining order obliging [the respondent] to cease interfering with the complainant ’ s and her minor son ’ s use of the dwelling, as well as household items located therein. Likewise, the lower courts had correctly concluded that there were no grounds for ... prohibiting [the respondent] from accessing [or residing in] the room ..., as [the complainant] had not provided unequivocal proof that [the respondent] had committed domestic violence ...”", "Ruling of the Supreme Court of Ukraine of 28 April 2020 in case no. 754/11171/19", "54. In its ruling in the aforementioned case, the Supreme Court noted, in particular, as follows:", "“In July 2019 [the complainant] instituted proceedings seeking a restraining order in respect of [her former husband] and alleging that the latter had systematically subjected her and their children to violence and intimidation. Those acts manifested through assaults including physical, psychological and sexual violence. ...", "...", "When deciding on the application of such a measure, the courts ... must assess proportionality of the interference with the rights and freedoms of the individual, taking into consideration that those measures are triggered by the unlawful conduct of [the offender].", "Therefore, the conclusion of [the lower courts] that it is not possible to allow the victim ’ s request concerning ... temporary restriction of the right [of the respondent] to [use] the flat of which he is a co-owner ... is erroneous, since it deprives the complainant of the guarantees ... provided by the [Domestic Violence Act].", "In the case at issue the [lower] courts ... have concluded that there is high risk of [repeated violence] ...", "In these circumstances, the judicial panel ... considers that demands of [the complainant] ... to enjoin [the respondent] from staying in the ... flat ... [and] approaching closer than two kilometres to [the flat] should be allowed. ...”", "Relevant international material", "55. A summary of the relevant international material can be found in the case of Volodina v. Russia, no. 41261/17, §§ 51-60, 9 July 2019).", "56. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary, national policies against violence based on: the maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, the raising of public awareness, training for professionals confronted with violence against women, and prevention.", "57. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and provide for the possibility to take measures in order to, inter alia : enable the judiciary to adopt interim measures aimed at protecting victims; ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas; penalise all breaches of the measures imposed on the perpetrator; and establish a compulsory operating protocol for the police and medical and social services.", "Material relating to violence against women in Ukraine", "58. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) was signed by Ukraine on 7 November 2011 and has not yet been ratified. On 14 November 2017 Mr N. Muiznieks, the Council of Europe Commissioner for Human Rights, addressed a letter Mr A. Parubiy, the Speaker of the Ukrainian Parliament, inviting him to facilitate the process of the ratification of the Istanbul Convention. The letter read, in particular, as follows:", "“During my country visits, I have encountered several objections and/or misconceptions about the Convention. Those arguments could be summarised - and countered - as follows :", "- Objections to the use of the word\" gender\" for its purported\" ideological\" connotations. The notion of gender is clearly defined in the Convention, which holds that, while the term\" sex\" refers to the biological characteristics that define humans as female and male, gender\" shall mean the socially constructed roles, behaviours, activities and attributes that a society considers appropriate for women and men .\" This definition is also used by the Committee on the Elimination of Discrimination against Women and other UN bodies. This meaning also enters into play in the term\" gender stereotypes \".", "- Some critics acknowledge that violence against women is a problem, but wish to prevent governments from challenging traditional gender roles and stereotypes, due to a cultural affirmation that men and women should play very different roles in public life and within the family. This approach limits women to the stereotypical role of mothers, giving birth and staying at home to rear children.", "- Others go as far as to argue that the Istanbul Convention should not be ratified because it would endanger societies based on traditional families. I would like to reassure everybody that there is no such danger, as all the measures provided for by the Istanbul Convention reinforce family foundations and links by preventing and combating the main cause of destruction of families, that is, violence.", "- Another criticism of the Convention concerns its supposedly\" unjustified\" focus on women, whereas men can also be victims of violence. However, data collected in various CoE member states - including Ukraine - do show that, in the vast majority of cases of domestic violence, it is women who are exposed to violence inflicted by men. More generally, numerous studies show that women and girls are exposed to a higher risk of gender-based violence than men, and that violence specifically targeted at women remains widespread. That being said, the Istanbul Convention recognises that men and children are victims of domestic violence too and that this should also be addressed.", "The Istanbul Convention aims at eradicating violence against women and domestic violence by prescribing the establishment of a comprehensive system to combat those phenomena effectively. Individual victims, families and society as a whole will all benefit if everyone ’ s fundamental rights to life, security, freedom, dignity, and physical and emotional integrity are respected.", "I would be grateful if you bring my letter to the attention of all members of the Ukrainian Parliament and I look forward to receiving further information on the ratification process ”.", "59. In March 2017, in its concluding observations on the eighth periodic report of Ukraine, the UN Committee on the Elimination of Discrimination against Women (CEDAW), noted, in particular, as follows:", "“26. The Committee remains concerned at the persistence in political discourse, the media and in society of deep-rooted patriarchal attitudes and discriminatory stereotypes concerning the roles and responsibilities of women and men in the family, which perpetuate women ’ s subordination within the family and society and which are reflected, inter alia, in women ’ s educational and professional choices, their limited participation in political and public life, their unequal participation in the labour market and their unequal status in family relations. The Committee recalls that such discriminatory stereotypes are also root causes of violence against women and expresses concern that, to date, the State party has not taken sustained measures to modify or eliminate discriminatory stereotypes and negative traditional attitudes.", "...", "29. Recalling its general recommendation No. 19 (1992) on violence against women, the Committee recommends that the State party:", "(a) ... accelerate the ratification of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence [the Istanbul Convention];", "(b) Take comprehensive measures to prevent and address violence against women and girls and ensure that perpetrators are prosecuted and adequately punished; ...”", "60. According to the OSCE -led survey on violence against women in Ukraine (2018), most interviewed women were concerned about the issue, with 64% saying it was a common occurrence. Some of the key conclusions and recommendations of the Survey were as follows:", "“ ...There is a high prevalence of VAW (violence against women), but women are reluctant to report it or to seek help.", "More than a quarter of women (26%) in Ukraine have experienced physical and/or sexual violence at the hands of a current or previous partner. Two-thirds of women (65%) have experienced intimate partner psychological violence, which is much higher than the EU average of 43% and higher than in any EU country. However, only 7% of women survivors of current partner violence and 12% of survivors of previous partner violence reported their experiences to the police. Considering that 52% of women survivors of intimate partner violence suffered physical consequences as a result of their most serious incident of violence, it is likely that other serious violence is underreported.", "Women in the qualitative research said that psychological violence is seen as normal, with 26% of women also believing that domestic violence is a private matter. The experts interviewed for this report said that there is a collective tolerance of violence, and women in the survey shared that feelings of shame represent barriers to reporting. In relation to current partner violence, more than four-fifths of women (81%) who identified a most serious incident did not contact the police or any other organization, and the same is true of 67% of women in respect of previous partner violence and of 52% concerning non-partner violence”.", "61. The U.K. ’ s Home Office ’ s Country Policy and Information Note on Ukraine concerning gender-based violence (May, 2018) featured, in particular, the following information:", "“4.2.3. ... Kateryna Levchenko, President of the NGO “La Strada – Ukraine,” presented the statistical data collected from the survey of police and prosecutors, analysis of court decisions on cases of violence against women and domestic violence. 10% of prosecutors, 11% of judges, 12% of police officers justify some cases of family violence. 39% of officers in the criminal justice system consider domestic violence to be a private matter, 60% blame sexual violence on its victims.", "During judicial proceedings of domestic violence cases 77% of prosecutors, 81% of police officers and 84% of judges consider reconciliation [between] partners and family preservation to be the ... top priority, with violence being underestimated and considered a minor dispute.", "Courts often consider the cases of violence from a formal point of view. The monitoring of 77 hearings revealed that the average duration of meetings is 4 to 23 minutes. Offenders do not appear in courts. Only every 6th abuser appeared in court. This often results in cancelling the hearings. ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "62. The applicant complained that the domestic courts ’ refusal to order O.L. ’ s eviction had exposed her and her children to continuing risk of harassment and violence. She invoked Article 8 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...”", "Admissibility", "63. The Government raised no objections concerning the admissibility of the present complaint.", "64. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "(i) Information concerning gender-based violence in Ukraine", "65. The applicant submitted that the problem of domestic violence was rampant in Ukrainian society, which displayed a high tolerance for this phenomenon.", "66. She noted that according to the 2014 survey conducted by GfK analytics at the request of the United Nations Population Fund (UNFPA), one in five Ukrainian women aged fifteen to forty-nine (19%) experienced physical violence since she turned fifteen years old. Around a half of physical violence victims – 9% - experienced physical violence at least once during the last twelve months preceding the survey.", "67. According to the National police press centre, in 2018 the Ukrainian police received 89.5 thousand domestic violence complaints from women.", "68. According to the Unified State Register of court judgments, between January and August 2019 court rulings were passed in fifty-eight criminal cases concerning domestic violence. In twenty-three out of these cases, the courts approved a reconciliation agreement between the victim and the accused. In the thirty-five remaining cases, the courts ruled on the merits, imposing the following punishments: imprisonment (two cases); release on probation (five cases); restriction of liberty or short-term detention (seven cases); and public works (twenty cases). In practice, in vast majority of the cases a perpetrator was let to “serve his sentence” at home, where he had a possibility of close contact with the victim, who remained at risk of further violence.", "(ii) Submissions concerning the applicant ’ s personal situation", "69. The applicant submitted that she herself had endured drunken scenes and violent outbursts from O.L. for many years before deciding to seek his eviction, and only after warnings and other measures taken by the authorities in response to individual incidents had not brought about tangible results. She submitted that on some occasions she had withdrawn her complaints against O.L. under pressure; the authorities had not wanted to investigate them and had persuaded her that it was in her own best interests to reconcile with her former husband and close the case.", "70. However, as the violent incidents had persisted, eventually the applicant had been forced to apply for O.L. ’ s eviction, as this had been the only effective way to protect the safety and rights of herself and her children. The applicant argued that, in her case, the national courts had failed to strike a fair balance between her and her children ’ s interests on the one side and those of her ex-husband on the other. In particular, the courts had taken an excessively formalistic approach in determining whether O.L. ’ s misconduct had been systematic and in discounting the importance of warnings and other measures issued by the authorities to address his violent outbursts. Likewise, they had not taken into account the fact that O.L. had co-owned another residence and that she was a disabled woman and a single mother having sole custody of four children. The applicant emphasised that the disputed flat had in fact been provided by the municipal authorities for the benefit of the children in the first place and the children ’ s interest to grow in a safe and secure environment was paramount in her case.", "71. The applicant next noted that she was thankful to the municipal authorities for giving her and the children an opportunity to become owners of the disputed flat in 2019. However, she had not willingly consented to sharing ownership with O.L. As her eviction claim had not been allowed and he had remained a lawful resident of the flat, under the law, there had been no way to obtain ownership of the flat without his participation.", "72. The applicant also submitted that it had taken her some two years to argue her eviction claim before the national courts. The eventual dismissal of that claim after such a significant effort on her part had given O.L. a sense of total impunity, and had exposed her and the children to an even greater risk of repeated psychological harassment and the threat of physical assaults. In this regard, the applicant noted that she had eventually been forced to file a fresh criminal complaint against him and to initiate proceedings for depriving him of parental authority. These proceedings were ongoing at the time when she submitted her observations.", "(b) The Government", "73. The Government alleged that there had been no breach of the positive duty under Article 8 in respect of the applicant. They considered that the domestic authorities had taken all necessary measures to protect her and her children from domestic violence.", "74. In particular, the police and social services had responded promptly to her complaints about O.L. ’ s violent outbursts by instituting proceedings, issuing warnings, and offering counseling support. The Government observed that the applicant herself had not complained to the Court about the response of those authorities to her domestic violence allegations, which fact, in their view, implied her acknowledgment that that response had indeed been effective. Moreover, the applicant herself had repeatedly requested to relieve O.L. of liability, withdrew her complaints, and rejected an offer of psychological counseling, thus preventing the competent authorities from exercising their restraining powers.", "75. In any event, even assuming that, notwithstanding the above, there was also a positive obligation on the State to put in place a civil remedy, this obligation had been properly discharged. Article 116 of the Housing Code, under which the applicant had lodged her eviction claim against O.L., had, in principle, been an appropriate legal remedy in her case. The applicant had not prevailed in the domestic proceedings because she had not made out her case on the facts. In particular, she had not demonstrated that O.L. had been guilty of persistent and irremediable misconduct of such a severity, that sharing a flat with him had been impossible for her. She had therefore not fulfilled the conditions established by law for setting the eviction mechanism in motion and the Court of Appeal had correctly balanced the applicant ’ s interest in evicting O.L. against his interest in continuing to reside in his home.", "76. The Government also noted that after the end of the eviction proceedings, the applicant, O.L. and their children had lodged a joint request with the municipality to be awarded ownership of the disputed flat. In their view, the applicant ’ s and O.L. ’ s cooperation in that matter had demonstrated a further proof that their living together had not been objectively intolerable.", "The Court ’ s assessment", "77. The Court notes at the outset that, as observed by the Government, the applicant in the present case does not complain about the quality of the general response of the national authorities to her domestic violence complaints. She complains only that the domestic courts refused to order the eviction of her former husband, alleging that this refusal exposed her and her minor children to the risk of further victimisation by him (compare and contrast B. v. the Republic of Moldova, no. 61382/09, §§ 31 and 62, 16 July 2013). The Court is therefore not called upon in the present case to examine the quality of the applicable legislative and administrative framework in general. It will essentially focus on the response of the civil courts to the applicant ’ s eviction claim, albeit against a background of successive domestic violence complaints whose existence is not in dispute.", "78. The Court reiterates that the issue of domestic violence, which can take various forms – ranging from physical assault to sexual, economic, emotional or verbal abuse – transcends the circumstances of an individual case. It is a general problem which affects, to a varying degree, all member States, and which does not always surface, since it often takes place within personal relationships or closed circuits ( Volodina, cited above, § 71 ). While this phenomenon may most frequently affect women, the Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often its casualties, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case (see Opuz v. Turkey, no. 33401/02, § 132, ECHR 2009).", "79. In various cases, depending on the individual circumstances of those cases, the Court has previously taken up the issue of domestic violence under Articles 2, 3, 8 and 14 of the Convention (see, in particular, Talpis v. Italy, no. 41237/14, § 100, 2 March 2017). In all those cases, the Court has established that the authorities have a positive obligation under the Convention to put in place and apply an adequate legal framework affording effective protection against acts of domestic violence (see, among other authorities, Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; A. v. Croatia, no. 5 5164/08, § 60, 14 October 2010; and Hajduová v. Slovakia, no. 2660/03, § 46, 30 November 2010 ).", "80. In this connection, the Court has held, in particular, that where an individual makes a credible assertion of having been subjected to repeated acts of domestic violence, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue (see, mutatis mutandis, Irina Smirnova v. Ukraine, no. 1870/05, §§ 71 and 89, 13 October 2016 ). Among other things, this assessment should take due account of the particular vulnerability of victims – who are often dependent on their assailants emotionally, economically, or otherwise – and the psychological effect that the risk of repeated harassment, intimidation and violence may have on their everyday life (see, mutatis mutandis, Hajduová, cited above, § 46 and Irina Smirnova, ibid.). Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem and prevent future ill-treatment (see Đorđević v. Croatia, no. 41526/10, §§ 92-93 and 147-49, ECHR 2012; and Irina Smirnova, cited above, ibid.).", "81. The applicant in the present case made credible assertions that over a prolonged period of time she had been exposed to physical assaults, intimidation and threats from O.L., her former husband, with whom she still shares a flat. These events affected her physical and mental integrity, and they therefore pertain to the sphere of private life within the meaning of Article 8 of the Convention (compare to Hajduová, cited above, § 49; Eremia v. the Republic of Moldova, no. 3564/11, § 73, 28 May 2013; and B. v. Moldova, cited above, § 71 ). They likewise affected her right to the enjoyment of a home free from violent disturbance also protected under Article 8 (see, in particular, Kalucza v. Hungary, no. 57693/10, § 59, 24 April 2012 ).", "82. The Court takes note of the fact that the authorities, which were well aware of the situation, intervened in individual incidents on a number of occasions. It further observes that the applicant, who considered that those measures had not resolved the situation, lodged a civil action under Article 116 of the Housing Code, which provides for the possibility to evict tenants in social housing for systematic misconduct. Regard being had to the particular facts of the present case, the wording of Article 116, and the Government ’ s explanations, the Court considers that this civil remedy was capable, in principle, of redressing the essence of the applicant ’ s complaint, although it is not apparent that, unlike a restraining order, it could be effective as a matter of urgency (compare and contrast Irina Smirnova, cited above, §§ 95-99 ).", "83. The Court also notes that the Rivne Town Court, which examined the applicant ’ s claim at first instance, did in fact rule in her favour. Subsequently, the above ruling was reversed in appeal proceedings, essentially on the basis that O.L. ’ s eviction would constitute a disproportionate interference with his right to respect for his home (see paragraph 37 above). The main issue for the Court in the present case is therefore determining whether this ruling achieved a fair balance between the competing interests at stake (see, mutatis mutandis, Pfeifer v. Austria, no. 12556/03, § 38, 15 November 2007, and B. v. Moldova, cited above, § 73). At this juncture, the Court reiterates that it is primarily for the national courts to resolve problems of interpretation of domestic legislation, and the Court is not in a position to take their place in this matter (see Söderman, Söderman v. Sweden [GC], no. 5786/08, § 102, ECHR 2013, and Bălşan v. Romania, no. 49645/09, § 67, 23 May 2017 ). However, while granting substantial deference to the national courts in the choice of appropriate measures, the Court is obliged to review their conclusions from the viewpoint of the Convention (see, mutatis mutandis, Valiulienė v. Lithuania, no. 33234/07, § 76, 26 March 2013 ).", "84. The Court has earlier indicated in its case law that eviction is the most extreme measure of interference with one ’ s right to respect for the home guaranteed by Article 8 of the Convention (see, among other authorities, Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 41, 2 December 2010 ). However, it has also stated that interference by the national authorities with individual rights under Article 8 might be necessary in order to protect the health and rights of the others (see, among other authorities, mutatis mutandis, Opuz, cited above, § 144; Eremia, cited above, § 52; and Volodina, cited above, § 86). Moreover, in context of Article 2 the Court has noted that, in domestic violence cases, perpetrators ’ rights cannot supersede victims ’ human rights, in particular, to physical and mental integrity (see, mutatis mutandis, Opuz, cited above, § 147, and Talpis, cited above, § 123).", "85. Regard being had to the Government ’ s argument that Article 116 of the Housing Code constituted, in principle, an effective remedy for the applicant ’ s complaint, in the present case, from the perspective of the Convention, the national courts, confronted with the applicant ’ s assertions that O.L. had recurrently engaged in violent outbursts during household arguments, were bound, in the context of the eviction proceedings lodged under the aforementioned provision, to assess the credibility of her statements and the risk of future violence, in the event that the parties remained living under the same roof. It is not apparent from the material before the Court that a comprehensive assessment of those elements had been performed either by the Court of Appeal or the Supreme Court.", "86. In particular, as appears from the Court of Appeal ’ s ruling, it acknowledged that certain misconduct had indeed taken place and even found it appropriate to “warn [O.L.] that he needs to change his attitude ...” (see paragraph 39 above). However, although criminal and administrative proceedings had been instituted against O.L. on account of physical assaults against the applicant and although the police authorities had conducted “pre-emptive conversations” with him and issued him “warnings” on a number of occasions, the court seized of the eviction request found that “it had not been demonstrated that [O.L. had] systematically breached the rules on living together” (see paragraph 39 above; compare to B. v. Moldova, cited above, § 74). The Court reiterates at this point that where the domestic authorities are confronted with credible domestic violence assertions, it falls on them to assess the situation in its entirety including the risk of future violence. As transpires from the reports of the social workers and the police, O.L. repeatedly evaded their efforts to discuss the situation with him in an attempt to find an appropriate solution and prevent the risk of further violent outbursts (see paragraphs 2 6 and 28 above). It is not apparent that the Court of Appeal took this into account and attempted to analyse whether there had been risk of recurrent violence.", "87. It essentially referred to the fact that O.L. had never been subjected to a formal penalty, without attempting to analyse the underlying reasons for this, including instances where the authorities had failed to follow up on the reported incidents (see paragraphs 10, 11, 18, and 2 4 above) or where the applicant had withdrawn her complaints concerning acts which could have constituted serious offences (see paragraphs 18 and 3 2 above). The Court would note at this point that due to specificity of domestic violence, withdrawal of complaints by victims is a recurrent phenomenon (see, in particular, Opuz, cited above, §§ 138-39; Volodina, cited above, § 99; and B. v. Moldova, cited above, § 54). It considers that such withdrawal should not relieve the national authorities of a duty to assess the gravity of the situation with a view to seeking an appropriate solution. Moreover, automatic reliance on the fact that the alleged victims have withdrawn their complaint, without a comprehensive analysis of the risks they continue to live with, is incompatible with States ’ duty to take into consideration the vulnerability of the victims of domestic violence when discharging their positive obligations in that area under Articles 3 and 8 of the Convention.", "88. The Court next observes that, as appears from the case file, O.L. and the applicant were provided with the disputed social flat in connection with the birth of their daughters. After the divorce, the applicant alone was granted custody of the children. O.L., for his part, repeatedly failed to pay child support and school and social workers indicated that he was emotionally disengaged from their upbringing. The children, who repeatedly witnessed his arguments with the applicant, were reported to be seriously distressed (see paragraphs 26 and 29 above). It is not apparent from the ruling of the Court of Appeal that it considered the impact of those circumstances on the validity of O.L. ’ s continuing interest in keeping the social tenancy or analysed how his violent conduct towards the applicant affected the best interests of the children.", "89. The Supreme Court, in turn, dismissed the applicant ’ s appeal against the ruling of the Court of Appeal, endorsing its analysis.", "90. In the light of all the factors detailed above, the Court considers that in dismissing the applicant ’ s eviction claim against O.L. brought under Article 116 of the Housing Code, which, as explained by the Government, was in principle a suitable legislative solution for her case, the domestic judicial authorities did not conduct a comprehensive analysis of the situation and the risk of future psychological and physical violence faced by the applicant and her children. It also notes that the proceedings lasted over two years at three levels of jurisdiction, during which the applicant and her children remained at risk of further violence (compare with Bevacqua and S ., cited above, § 76). The fair balance between all the competing private interests at stake has therefore not been struck. The response of the civil courts to the applicant ’ s eviction claim against her former husband has accordingly not been in compliance with the State ’ s positive obligation to ensure the applicant ’ s effective protection from domestic violence.", "91. There has therefore been a breach of Article 8 of the Convention in the present case.", "ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE CONVENTION", "92. Relying on Articles 6 and 13 of the Convention, the applicant also complained that the judgments of the Court of Appeal and the Supreme Court in her case had not provided an adequate response to her essential argument concerning the likelihood of her and her children being exposed to the risk of domestic violence in the event that they had to remain living with O.L., and that in view of the manner in which the domestic courts had interpreted and applied domestic law in her case, she had had no effective remedy for her grievances under Article 8 of the Convention.", "93. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 8 of the Convention, the Court considers that it has examined the main legal question raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaints (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "94. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "95. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. She alleged that this amount would enable her to buy a separate flat and finally separate from O.L.", "96. The Government argued that this claim was exorbitant and unsubstantiated.", "97. The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation of Article 8 in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "98. The applicant also claimed EUR 2,000 for legal fees and EUR 80 for administrative expenses incurred by her lawyer, Mrs N. Bukhta, in connection with her representation before the Court. She requested that these payments be transferred to her representative ’ s account directly. In support of this claim, the applicant submitted a copy of the contract signed by her and Ms N. Bukhta for her representation in the proceedings before the Court, dated 1 February 2019. It stipulated that after the completion of the proceedings the applicant was to pay Mrs Bukhta EUR 50 for each hour of work, and an additional sum of 4% of the amount due for work done, for administrative and postage expenses; however, the total amount was not to exceed the Court ’ s award for costs and expenses. The applicant also submitted a time sheet completed by Mrs Bukhta in respect of the work done, which stated that Mrs Bukhta had worked on the case for forty hours.", "99. The Government invited the Court to reject the claim for legal fees, as the applicant had not actually incurred the above expenses. They further submitted that the claim for administrative and postal expenses was not supported by any postage receipts or other appropriate documentary evidence.", "100. In the light of the Court ’ s settled case-law (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 115-17, 7 November 2013), the Court considers it reasonable to award the applicant, who was also granted EUR 850 in legal aid, EUR 1,150 in respect of legal fees, to be transferred directly to her representative ’ s account, as indicated by the applicant.", "Default interest", "101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant is Ms Valeriya Igorevna Volodina; she is a Russian national who was born in 1985 and lives in an undisclosed location in Russia. In 2018, fearing for her safety, she obtained a legal change of name (see Volodina v. Russia, no. 41261/17, § 39, 9 July 2019). Her old name is used in the judgment to protect her safety. The applicant was represented before the Court by Ms Vanessa Kogan, director of the Stichting Justice Initiative, a human-rights organisation based in Utrecht, the Netherlands.", "3. The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Circumstances of the case", "5. In November 2014 the applicant began a relationship with Mr S., an Azerbaijani national. After their separation in 2015, S. threatened her with death or bodily injuries; he abducted and assaulted her on several occasions. For details, see Volodina, cited above, §§ 10-36.", "6. In June 2016 the applicant’s brother told her that her account on the Russian social media platform VKontakte had been hacked. Her invented name had been replaced with the real name; her personal details, a photograph of her passport and her intimate photographs had been uploaded to the account. Classmates of her twelve ‑ year-old son and his class teacher had been added as friends. The applicant attempted to log into her account only to discover that the password had been changed.", "7. On 22 June 2016 the applicant complained to the Ulyanovsk police about a breach of her right to privacy. The police took a statement from the applicant’s brother. He said that he had talked to S. on the phone and that S. had admitted that he had hacked into the applicant’s email account and sent obscene messages to her contacts. He had done so out of desperation because he had “no good way of bringing [her] back”. Claiming that they were unable to locate S. in their jurisdiction, on 21 July 2016 the Ulyanovsk police forwarded the matter to the police in the Krasnodar Region where S. had registered his residence. On 29 August 2016 the Krasnodar police sent the file on to the Samara Region where S. had moved. On 30 September 2016 the Samara police returned the case file to their colleagues in Ulyanovsk.", "8. On 7 November 2016 the Ulyanovsk police declined to institute criminal proceedings on the grounds that the information had been made public on social media rather than in the media. The supervising prosecutor set that decision aside as unlawful because S. had not been interviewed. On 2 May 2017 the police again declined to open a criminal case, finding no indication that S. had collected or disseminated information about the applicant’s private life. The decision stated that it had not been possible to locate S. who had no Russian nationality or proof of residence in Russia. On 1 February 2018 the supervising prosecutor annulled that decision. He directed the police to locate and interview S., to examine his electronic devices and records of his phone calls to the applicant.", "9. On 6 March 2018 the Ulyanovsk police opened a criminal investigation under Article 137 of the Criminal Code. Over the following months, police investigators interviewed the applicant and S., first separately and later face ‑ to-face, took statements from the applicant’s family members, seized and examined their mobile phones, obtained logs of phone communications from mobile providers, received information from the company operating the VKontakte site, and talked to a social media expert.", "10. In February, March and September 2018, new fake profiles in the applicant’s name appeared on VKontakte and Instagram. The profiles used her intimate photographs and personal details.", "11. On 13 August and 19 September 2018 the applicant complained to the Ulyanovsk police that S. had sent her death threats via social media and Internet messengers. She enclosed printouts of messages and asked the police to open a criminal case under Article 119 of the Criminal Code (threats of death or bodily injury) and to grant her protection. On 3 January 2019 the police refused to open a criminal case on the grounds that the threats had not been “real”.", "12. Following the creation of court orders prohibiting certain forms of conduct (see paragraph 32 below), on 28 September 2018 the applicant asked the investigator to seek an order which would prevent S. from using the Internet, contacting her by any means including via social media, e-mail or Internet messengers, or approaching her or members of her family. On 18 October 2018 the investigator replied that, on account of his independent standing in the proceedings, the parties could not dictate him what action needed to be taken. He refused her request on the grounds that “measures of restraint could be applied to suspects in exceptional circumstances only”. By judgment of 27 November 2018, as upheld on appeal on 21 January 2019, the Ulyanovsk courts dismissed the applicant’s complaint about the investigator’s decision on the grounds that it had been issued by a competent official within his scope of discretion.", "13. On 12 December 2018 the applicant complained to the Kuntsevskiy District Court in Moscow that the Kuntsevskiy district police had not responded in any way to her report of a tracking device she had found in her bag two years previously (see Volodina, cited above, §§ 28-29). On 26 December 2018 the District Court found no fault with the actions of the district police because the deputy chief had forwarded the applicant’s report to the Special Technical Measures Bureau shortly upon its receipt. On 28 February 2019 the Moscow City Court dismissed, in a summary fashion, her appeal against the District Court’s decision.", "14. On 19 January 2019 the Ulyanovsk police suspended the investigation into the fake social media profiles. They established that two fake profiles had been created in February and March 2018 using IP addresses and phone numbers registered in Azerbaijan. According to the billing information of his phones and the police database, on critical dates S. had been in the Tambov Region in Russia. The investigators decided to ask their Azerbaijani counterparts to obtain records of phone communications from the Azerbaijani number.", "15. Counsel for the applicant applied for judicial review of the investigators’ decisions. She complained that the criminal case had been opened following a two-year period of inactivity after the first report, that the fake profiles created in 2016 had not been investigated, that S.’s friends and connections had not been identified or interviewed, that communications between S. and the phone number in Azerbaijan had not been evaluated, and that the collected evidence had not been made available to the applicant.", "16. On 25 June 2019 the Zavolzhskiy District Court in Ulyanovsk set aside the 19 January 2019 suspension decision as unlawful and premature in so far as it did not fix a time-limit for receiving a reply from Azerbaijan and as it prevented the applicant from requesting the investigator to follow the leads which she believed needed to be explored. On 19 August 2019 the Ulyanovsk Regional Court quashed the District Court’s decision in respect of the applicant’s complaints which had been granted. It held that the law did not require the investigator to make the case file available to the applicant until the investigation had been completed, and that the suspension decision had been lawful because “the investigator had ... given due consideration to all the circumstances” underlying that decision.", "17. On 14 September 2019 the Kuntsevskiy district police in Moscow refused to open a criminal investigation into the tracking device. The decision listed the constituent elements of an offence under Article 137 of the Criminal Code and stated that the device had been identified as a Russian ‑ made GPS tracker which was legally available for purchase. As the applicant had thrown away the device and the SIM card it contained, it was impossible to identify the owner. Her claim that “no one but [S.] could have planted the device” was speculation which could not be accepted as evidence. As there was no “objective evidence incriminating [S.]”, the criminal case against him could not continue.", "18. On 20 October 2019 the owner of the telephone number registered in Azerbaijan which had been used for the fake social media accounts was established and questioned. The applicant was not informed of this development. Nor was it mentioned in the investigator’s subsequent decision of 25 December 2019 to suspend the criminal proceedings due to the failure to identify the perpetrator.", "19. On 18 May 2020 the applicant was questioned about the fake profiles which had appeared in 2018 on Instagram and VKontakte. The investigator asked the applicant if she knew certain named individuals in Azerbaijan and whether she would accept a polygraph test. She said she did not know these people and refused the test.", "20. On 14 October 2020 the Ulyanovsk police closed the criminal case under Article 137 of the Criminal Code. According to the decision, it was established that in February and March 2018 S. had created fake profiles on VKontakte in the applicant’s name and had published nude photos of her without her consent. The published photos had been found on his phone during an inspection. On 13 October 2020 S. had filed a motion to discontinue the proceedings because the limitation period had expired. The motion had been granted: as the offence under Article 137 was of lesser gravity, the two ‑ year period of limitation had expired in March 2020.", "21. The decision was not communicated to the applicant or her lawyer. On 14 April 2021 she became aware of its existence from the Government’s Action Plan submitted to the Committee of Ministers in the framework of execution of the Volodina group of cases." ]

[ "RELEVANT LEGAL FRAMEWORK", "United nations", "22. The 2015 report by the UNESCO-ITU Broadband Commission for Digital Development’s Working group on Broadband and Gender, “Cyberviolence against Women and Girls: A World-wide Wake-up Call” [1], observes that “violence online and offline, or ‘physical’ violence against women and girls (VAWG) and ‘cyber’ VAWG, feed into each other” and that “abuse may be confined to networked technologies or may be supplemented with offline harassment including vandalism, phone calls and physical assault”.", "Forms of cyber VAWG fall into six broad categories which include “hacking”, “impersonation” (the use of technology to assume the identity of the victim in order to embarrass or shame her, e.g., by sending offensive emails from the victim’s email account), “surveillance/tracking” (stalking and monitoring a victim’s activities either in real-time or historically; e.g., GPS tracking), “harassment/spamming” (the use of technology to continuously contact, annoy, threaten, and/or scare the victim), “recruitment” (luring potential victims into violent situations), and “malicious distribution” (manipulating and distributing defamatory and illegal materials related to the victim; e.g., threatening to or leaking intimate photos/video). In addition, some terminology is particular to cyber VAWG: thus, “revenge porn” consists of an individual posting intimate photographs of another individual online with the aim of publicly shaming and humiliating that person, and even inflicting real damage on the target’s “real-world” life, such as getting them fired from their job.", "Five characteristics that distinguish cyber VAWG are: “anonymity” (abusive person can remain unknown to victim), “action at a distance” (abuse can be done without physical contact and from anywhere), “automation” (abusive actions using technologies require less time and effort), “accessibility” (variety and affordability of many technologies make them readily accessible to perpetrators), and “propagation and perpetuity” (texts and images multiply and exist for a long time or indefinitely).", "23. A report by the UN Human Rights Council’s Special Rapporteur on violence against women, its causes and consequences, on online violence against women and girls from a human rights perspective (A/HRC/38/47, 18 June 2018) has found that online and internet-facilitated forms of violence against women have become increasingly common, particularly with the use of social media platforms and other technical applications (point 12). Technology has transformed many forms of gender-based violence into something that can be perpetrated across distance, without physical contact and beyond borders. All forms of online gender-based violence are used to control and attack women and to maintain and reinforce patriarchal norms, roles and structures and an unequal power relationship (point 30).", "Online violence against women may be manifested in different forms and through different means, such as non-consensual accessing, using, manipulating, disseminating or sharing of private data, photographs or videos, including sexualized images (point 34). New among other forms of violence, “revenge porn” consists in the non-consensual online dissemination of intimate images, obtained with or without consent, with the purpose of shaming, stigmatising or harming the victim (points 33 and 41).", "The Special Rapporteur formulated a number of recommendations for States, including the recommendations that States should clearly prohibit and criminalise online violence against women, in particular the non-consensual distribution of intimate images and the threat to disseminate such images (point 101), and that States should allow victims to obtain protection orders to prevent their abusers from posting or sharing intimate images without their consent (point 104).", "Council of Europe", "24. The Cybercrime Convention Committee’s Working Group on cyberbullying and other forms of online violence, especially against women and children, carried out a mapping study on cyberviolence [2] and released its findings on 9 July 2018. The Working Group agreed to define “cyberviolence” as “the use of computer systems to cause, facilitate, or threaten violence against individuals that results in, or is likely to result in, physical, sexual, psychological or economic harm or suffering and may include the exploitation of the individual’s circumstances, characteristics or vulnerabilities” (point 2.1.1). Acts of cyberviolence may take a variety of forms ranging from ICT-related violations of privacy, such as stalking, identity theft and impersonation, to cyber-harassment which comprises “revenge porn”, to cybercrime (point 2.1.2). With regard to “revenge porn”, the study observed that “the phenomenon predominantly involves a partner in an intimate relationship disseminating the material in order to humiliate or intimidate the victim” and has been recognised as a crime in several jurisdictions (point 2.1.2.1.2).", "Investigation and prosecution of cyberviolence was confronted with many challenges, including limited help by law enforcement: “Cyberviolence may involve methods that are particularly difficult for police forces to investigate, and victims may be told – correctly or incorrectly – that there is nothing that law enforcement can do. Like any other form of violence against women, online violence against women is often overlooked because of a lack of awareness and gendered understanding of violence. Victims’ experience are often considered as ‘incidents’ rather than patterns of behaviour, and victims are blamed for the violence they face” (point 2.3).", "RussiaProtection of private life: civil law", "Protection of private life: civil law", "Protection of private life: civil law", "25. The concept of “private life” embraces “the sphere of human life and activity which belongs to the particular person, exclusively concerns that person and is not subject to public or State control so long as it is not contrary to law” (Constitutional Court’s decisions no. 248-O of 9 June 2005, no. 158 ‑ O-O of 26 January 2010, and no. 1253-O of 28 June 2012).", "26. Article 150 of the Civil Code (“Intangible assets”) stipulates that a person’s dignity, honour, goodwill, business reputation, private life and family secrets constitute inalienable intangible assets. A court may recognise an infringement of the person’s intangible assets and prevent actions that infringe or threaten to infringe them.", "27. Article 151 (“Compensation for non-pecuniary damage”) provides that a person who infringes another’s intangible assets may be ordered by a court to pay financial compensation in respect of non-pecuniary damage.", "28. Article 152.1 (“Protection of a person’s image”) establishes that a person’s image may only be published or used with the consent of the person concerned. If an image is shared on the Internet without consent, the person may demand that it be removed and no longer used.", "29. Article 152.2 (“Protection of a person’s private life”) prohibits the collection, storage, dissemination and use of information about a person’s private life, including his or her origins, place of stay or residence, private or family life, without the consent of the person concerned.", "Protection of private life: criminal law", "30. Article 137 of the Criminal Code (“Breach of privacy”) establishes that illegal collection or dissemination of information on the person’s private life constituting his or her personal or family secrets, without the consent of the person concerned, or else dissemination of such information in public speech, in a work of art on public display or in the mass media, is an offence punishable by a fine or up to two years’ imprisonment.", "31. The Plenary Supreme Court of Russia’s guidance on the judicial application of criminal-law provisions for the protection of constitutional rights and freedoms (Resolution no. 46 of 25 December 2018) indicates that, for the purposes of Article 137 of the Criminal Code, the collection of information on the person’s private life must be understood as comprising the illegal obtaining of information by any means, such as surveillance, wiretapping, interviewing other persons, including with the use of audio, video and photorecording equipment, and copying, stealing or otherwise acquiring documents. Dissemination of information on the person’s private life consists in communicating or disclosing it to one or more persons orally, in writing or otherwise, including by means of handing over the materials or publishing the information on ICT networks, such as the Internet.", "Criminal procedure", "32. In April 2018, a new measure of restraint in criminal proceedings in the form of a court order prohibiting certain conduct ( запрет определенных действий ) was introduced in Article 105.1 of the Code of Criminal Procedure. The court may, on an application from the investigator in charge of the case, issue an order requiring a suspect or defendant in criminal proceedings to appear when summoned, to abstain from certain conduct and to comply with the restrictions imposed (part 1). An exhaustive list of types of conduct which may be restricted includes a prohibition to leave the place of residence, a prohibition to visit or approach certain places or to attend certain events, a prohibition to communicate with certain persons, and a prohibition to receive or send letters, to use means of communication or the Internet (part 6).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "33. The applicant complained under Article 8 of the Convention that the Russian authorities had failed to protect her against repeated acts of online violence and to investigate the matter diligently and efficiently. Article 8 reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityExhaustion of domestic remedies", "Exhaustion of domestic remedies", "Exhaustion of domestic remedies", "34. The Government submitted that the applicant did not avail herself of civil-law remedies which clearly had a prospect of success. She could have introduced a civil claim under Articles 150-151.2 of the Civil Code to have her photos and fake profiles removed, to prevent their further use and to be granted compensation for non-pecuniary damage. The Government supported their position with the reference to a judicial decision (Krasnogorskiy District Court in Kamensk-Uralsk, 13 March 2017, as upheld on appeal by the Sverdlovskiy Regional Court) by which a plaintiff’s former partner was ordered to pay her compensation for the unlawful use of her intimate photos. He had shown the photos, which he had taken during the time they cohabited, to her current partner and her mother-in-law. The courts had taken evidence from witnesses and established the facts according to the civil standard of proof. They had found that in civil proceedings, the courts were not bound by the police’s decision declining to institute a criminal investigation on the plaintiff’s report. In civil proceedings, the perpetrator did not benefit from the presumption of innocence, and the burden of proof was placed equally on both parties in relation to the circumstances they asserted.", "35. The applicant disagreed that civil-law remedies offered a sufficient chance of success in the circumstances of her case. She did not need to seek a court order to have the photos removed, as the social media platforms had taken down the fake profiles as soon as she had reported them. Pursuing a civil claim to prevent a further use of her photos and obtain damages would have required her to adduce evidence showing that S. had been responsible for creating the fake profiles or used the services of someone who had done so. She could not have collected that evidence in a situation where the investigative authorities with all necessary powers, including access to phone registers, IP addresses, geolocation data, and cross-border cooperation, had not managed to establish the person responsible for creating the fake profiles and publishing her photos. The Kamensk-Uralsk case to which the Government referred did not involve cyberviolence. The defendant had personally visited the plaintiff’s partner and mother-in-law to show them the photos; he did not deny he had done so in order to defame her; her partner and mother-in-law had witnessed his actions. In contrast, the offence in the applicant’s case had taken place in cyberspace which offers the perpetrator anonymity and the opportunity to cause harm across borders. Finally, unlike the Kamensk-Uralsk case where police had refused to open a criminal case, in the applicant’s case, the criminal case had been opened, giving her reason to believe that a separate civil action would be redundant as she would be able to claim damages in criminal proceedings.", "36. The Court notes that the applicant reported the fake social-media profiles and the discovery of a tracking device in her bag to the police (see paragraphs 7 and 10 above, and Volodina v. Russia, no. 41261/17, § 29, 9 July 2019). After an initial period of prevarication, the police accepted to open a criminal case under Article 137 of the Criminal Code, to which the decision on her report of the tracking device also referred (see paragraphs 9 and 17 above). It was not claimed that the acts which she complained about fell out of the scope of that provision. She could therefore legitimately expect that, once seized of the matter, the investigative authorities would pursue the investigation, identify the person responsible and bring the case to trial which would have enabled her to constitute a civil party and claim damages from the perpetrator. Accordingly, the Court finds that the applicant made use of a remedy available to her under domestic law which was apparently effective and offered reasonable prospects of success. Indeed, the Government did not claim that complaining to the police about these matters was not an effective remedy. As to their argument that she should have also instituted civil proceedings, the Court reiterates that, even assuming that a civil-law remedy could have been an effective one, an applicant who has pursued an apparently effective remedy cannot be required also to have tried others that were available but probably no more likely to be successful (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019, and, in a factually similar situation, Buturugă v. Romania, no. 56867/15, § 73, 11 February 2020). It follows that the Government’s objection as to the alleged non-exhaustion of domestic remedies must be rejected.", "“Substantially the same”", "37. The Government submitted that the complaint about the applicant’s alleged stalking with the use of a tracking device had already been examined by the Court in the applicant’s first case (they referred to Volodina, cited above, §§ 28-29).", "38. The applicant replied that, although the tracking device was indeed mentioned in the statement of facts of the first judgment, her complaints relating to ineffective investigation and judicial review had not yet been subject to the Court’s examination.", "39. The Court has identified the following criteria concerning Article 35 § 2 (b) of the Convention by which an application may be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”: (i) an application is considered as being “substantially the same” where the parties, the complaints and the facts are identical; (ii) the concept of complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on; and (iii) where the applicant submits new information, the application will not be essentially the same as a previous application (see Kudeshkina v. Russia (no. 2) (dec.), no. 28727/11, § 68, 17 February 2015).", "40. The Court notes that the decisions by Russian courts and investigators in the matter of the tracking device (see paragraphs 13 and 17 above), which it did not have the opportunity to consider when adopting the Volodina judgment, constitute “relevant new information” within the meaning of the third criterion above. Accordingly, this part of the application cannot be rejected in accordance with Article 35 § 2 (b) of the Convention.", "Conclusion", "41. The Court finds that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "42. The applicant submitted that she had been the victim of repeated acts of online violence, including revenge porn, cyber harassment, and cyberstalking. The Russian authorities had failed to fulfil their positive obligations under Article 8 of the Convention to secure respect for her private life by providing effective protection against online violence, preventing further online violence and by carrying out an effective investigation. In her view, an adequate legal framework for protection from online violence should include: (1) criminalisation of online violence and acknowledging that online violence is a form of violence against women, (2) possibility for a victim to apply for protection order, (3) protection services for victims (e.g. helplines), (4) specialised trainings and protocols for the law enforcement officials. While many States had updated their existing legal frameworks or enacted specific laws to address online stalking, online harassment and the non ‑ consensual sharing of intimate images, Russia did not establish a holistic legal framework punishing all forms of domestic violence, including those perpetrated in cyberspace.", "43. Unlike a majority of Council of Europe member States, the Russian legislation does not provide for protection orders for victims of domestic violence whether offline or online. The court may apply a new restraining measure under Article 105.1 of the Code of Criminal Procedure on the motion of the investigator; the decision to raise the motion before the court is at the investigator’s full discretion. In the applicant’s case, the investigator had refused to file the motion without even assessing her arguments. This provision of the Russian law is ineffective and insufficient to protect domestic violence victims. No member of the police or investigative team to whom she had appealed had any special preparation or qualification for dealing with cases of domestic violence. They had not conducted a gender-sensitive risk assessment of her situation, offered any form of protective measures, or explained her rights and opportunities to keep herself safe. The authorities had treated the cyberviolence and controlling behaviour as a trivial matter unworthy of their intervention.", "44. An investigation into the dissemination of the applicant’s intimate photos had been deliberately delayed; a criminal case was opened only in March 2018, that is two years after the first complaint of revenge porn in 2016. If the authorities had not known S.’s whereabouts they could have initiated a search for him but had not done so. He had been questioned by the police in August 2016 in connection with an attempt on the applicant’s life (she referred to Volodina, cited above, § 23). That the authorities had not questioned him about the fake accounts indicated that they did not consider these actions to be part of the same pattern of domestic violence, refusing to make a connection between them and failing to acknowledge the various forms that domestic violence may take. It was not until 2018 that the authorities had first interviewed S. and made a request to VKontakte to establish the Internet addresses from which the fake profiles had been created. No request to provide information about the page owner had been sent to Instagram. The applicant had been first asked to give evidence about the fake Instagram accounts in May 2018, more than two years after her complaint. After the authorities established that the telephone number in Azerbaijan which had been used for creating two fake profiles in 2018 belonged to G., they did not declare him a suspect, establish his connection with S. or investigate how he had obtained the applicant’s photos or her personal details and what his motive to create the fake profiles had been. The authorities had not informed the applicant of progress in investigation or given her access to the case file. Likewise, the investigation into the tracking device had been closed three years after her complaint. These elements indicated that the authorities in principle were not prepared to prosecute anyone for the cyberviolence of which she was the victim.", "(b) The Government", "45. The Government submitted that Russian law offers sufficient protection against interference with the person’s private life, including non ‑ consensual publication of the person’s image. Alongside the criminal-law protection extended by Article 137 of the Criminal Code, there exist civil ‑ law mechanisms offering redress for the violations that have already occurred, preventing the repetition of abusive behaviour and ensuing accountability of those responsible. The person affected may ask the court to recognise an infringement of his or her rights, demand that any unlawfully obtained content be removed and no longer used, claim compensation in respect of non-pecuniary damage (Articles 150, 151.1 and 152.2 of the Civil Code), and also make use of remedies available under the personal-data protection legislation. Accordingly, the Russian legislation, to the extent it was relevant to the circumstances of the applicant’s complaint, was sufficient in its scope to satisfy the State’s positive obligation under Article 8 to provide the applicant with the protection against online harassment.", "46. On the effectiveness of the investigation, the Government emphasised that there was no absolute right to obtain the prosecution or conviction of any particular person provided that there were no culpable failures in seeking to hold perpetrators of criminal offences accountable. In 2016 the police in Ulyanovsk had registered the applicant’s report and carried out an initial verification of the information. S.’s whereabouts had not been immediately ascertained and he had not been available for questioning. In 2018 a criminal case had been opened and S. had been required to sign an undertaking to appear. The investigation had taken evidence from the applicant, her family members, and S., and obtained data from phone service providers and social media platforms. Nevertheless, the evidence in support of the applicant’s claim that S. was the perpetrator had been insufficient. She had carried on talking to him via social media and asking him for money which, in the Government’s view, showed that their relationship was “not as straightforward and simple as the applicant described [it]”. In those circumstances, a more restrictive measure, such as an order to prohibit certain conduct, could not be applied. The Russian courts had upheld the investigator’s decision refusing application of that measure at two levels of jurisdiction. Further significant progress in the investigation had been achieved in 2019 when the Russian investigators had received information from their colleagues in Azerbaijan. Throughout the investigation, the authorities had kept the applicant informed of their actions.", "The Court’s assessment", "(a) General principles", "47. The Court reiterates that the concept of private life includes a person’s physical and psychological integrity which the States have a duty to protect, even if the danger comes from private individuals (see Söderman v. Sweden [GC], no. 5786/08, §§ 78-80, ECHR 2013, and also X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII; A. v. Croatia, no. 55164/08, §§ 59 ‑ 60, 14 October 2010; and Eremia v. the Republic of Moldova, no. 3564/11, §§ 72-73, 28 May 2013). Children and other vulnerable individuals, in particular, are entitled to effective protection. The particular vulnerability of victims of domestic violence and the need for active State involvement in their protection has been emphasised both in international instruments and in the Court’s well-established case-law (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Hajduová v. Slovakia, no. 2660/03, §§ 41, 30 November 2010; and Volodina, cited above, § 72).", "48. The acts of cyberviolence, cyberharassment and malicious impersonation have been categorised as forms of violence against women and children capable of undermining their physical and psychological integrity in view of their vulnerability (see paragraphs 20, 23 and 24 above, and K.U. v. Finland, no. 2872/02, § 41, ECHR 2008). The Court has recently pointed out that “cyberharassment is currently recognised as an aspect of violence against women and girls and can take a variety of forms, such as cyber ‑ violations of private life ... and the taking, sharing and handling of information and images, including intimate ones” (see Buturugă, cited above, § 74). In the context of domestic violence, intimate partners are frequently the likely perpetrators of the acts of cyber ‑ stalking or surveillance (ibid. , see also paragraph 20 above).", "49. Online violence, or cyberviolence, is closely linked with offline, or “real-life”, violence and falls to be considered as another facet of the complex phenomenon of domestic violence (see Buturugă, cited above, §§ 74 and 78, and paragraph 20 above). The States have a positive obligation to establish and apply effectively a system punishing all forms of domestic violence and to provide sufficient safeguards for the victims (see Opuz v. Turkey, no. 33401/02, § 145, ECHR 2009, and Bălşan v. Romania, no. 49645/09, § 57, 23 May 2017). The positive obligation applies to all forms of domestic violence, whether occurring offline or online. The Court has found that this positive obligation – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – includes in particular: (a) the obligation to establish and apply in practice an adequate legal framework affording protection against violence by private individuals; (b) the obligation to take the reasonable measures in order to avert a real and immediate risk of recurrent violence of which the authorities knew or ought to have known, and (c) the obligation to conduct an effective investigation into the acts of violence (see, most recently, Kurt v. Austria [GC], no. 62903/15, § 164, 15 June 2021, and also Bevacqua and S., § 65; Eremia, § 75; Volodina, §§ 76 ‑ 77 and 86, and Buturugă, §§ 60-62, all cited above). The Court reiterates that the State’s positive obligations under Article 8 to safeguard an individual’s physical or psychological integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see K.U. v. Finland, § 46, and Söderman, § 84, both cited above).", "(b) Application of the principles", "50. There is no dispute as to the applicability of Article 8 in the instant case: the Court has found in the first judgment that the publication of the applicant’s intimate photographs “undermined her dignity, conveying a message of humiliation and disrespect” (see Volodina, cited above, § 75). The non-consensual publication of her intimate photographs, the creation of fake social-media profiles which purported to impersonate her, and her tracking with the use of a GPS device interfered with her enjoyment of her private life, causing her to feel anxiety, distress and insecurity. Accordingly, it must be determined whether the authorities, once they became aware of the interference with the applicant’s rights under Article 8 of the Convention, have discharged their obligations under that provision to take sufficient measures to put an end to that interference and prevent it from recurring (see Eremia, cited above, § 75).", "51. The Court will first examine whether the respondent State has put in place an adequate legal framework providing the applicant with protection against the acts of cyberviolence (see Söderman, cited above, § 89-91). It reiterates that, as regards the acts which encroach on an individual’s psychological integrity, the obligation of an adequate legal framework does not always require that a criminal-law provision covering the specific act be put in place. The legal framework could also be made up of civil-law remedies capable of affording sufficient protection, possibly combined with procedural remedies such as the granting of an injunction (ibid., §§ 85 and 108, with further references).", "52. The Russian law contains both civil-law mechanisms and criminal-law provisions for the protection of an individual’s private life. The definition of “private life” enshrined in the well-established case-law of the Constitutional Court (see paragraph 25 above) is sufficiently broad to cover multiple aspects of the person’s physical and social identity and various elements of it, such as the person’s name, image and personal data (compare S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008).", "53. The Civil Code prohibits, in a general manner, any information relating to an individual’s private life from being gathered, kept, used or shared without the consent of the person concerned. It also specifically establishes the protection against the unauthorised use or publication of the person’s image (see paragraphs 28 and 29 above). Infringements may give rise to injunctive relief and tort liability (see paragraphs 26 and 27 above).", "54. More serious cases of interference with an individual’s private life can lead to criminal liability. Article 137 of the Criminal Code makes it an offence to collect or disseminate the information relating to the person’s private life without the consent of the person concerned (see paragraph 30 above). The Supreme Court’s binding interpretation has upheld the application of this provision to all means by which information happens to be obtained, including various forms of surveillance with and without the use of technical equipment (see paragraph 31 above).", "55. The applicant finds fault with the above-mentioned provisions in that they do not form part of a holistic framework punishing all forms of domestic violence and do not explicitly target its manifestations in cyberspace, such as online stalking or impersonation. For the Court, her criticism is part of the broader question of whether or not the Russian State has enacted legislation to criminalise acts of domestic violence, whether they happen to take place offline or online. The Court examined this question in detail in the first Volodina case and concluded that the existing Russian legal framework was deficient in several important respects and failed to meet the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence (see Volodina, cited above, §§ 80-85). It is not necessary to revisit this general finding in the instant case, in which the scope of the Court’s inquiry is more limited. It needs not to review any alleged deficiencies of the private-life legislation in abstracto, but rather to determine whether or not the manner in which it was applied in the circumstances of the applicant’s case gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015).", "56. The applicant complained that her name, personal details and photographs had been used for creating fake social media profiles, that a GPS tracker had been planted to track her movements, and that she had been the target of death threats sent through social media (see paragraphs 6, 10, 11 and 13 above). The domestic authorities accepted that these acts presented the requisite elements of prosecutable offences under Russian law. The collection of information on the applicant’s whereabouts and the dissemination of her images and personal details on information and communications technology (ICT) networks disclosed a serious interference with her privacy punishable under Article 137 of the Criminal Code, while death threats were prosecutable under Article 119 of the Criminal Code, regardless of the mode of their communication – offline or online. In the light of the State’s margin of appreciation in choosing legal means to ensure compliance with the Convention, the Court considers that the existing framework equipped the Russian authorities with legal tools for investigating the acts of cyberviolence of which the applicant was the victim.", "57. The Court considers that the acts of cyberviolence in the instant case were sufficiently serious to require a criminal-law response on the part of the domestic authorities. The publication of the applicant’s intimate photographs, calculated to attract the attention of her son, his classmates and their teacher (see paragraph 6 above), sought to humiliate and degrade her. As noted above, the tracking of her movements by means of a GPS device and the sending of death threats on social media caused her to feel anxiety, distress and insecurity. The Court also reiterates that both the public interest and the interests of the protection of vulnerable victims from offences infringing on their physical or psychological integrity require the availability of a remedy enabling the perpetrator to be identified and brought to justice (see K.U. v. Finland, cited above, § 47, and Volodina, cited above, § 100). Civil proceedings which might have been an appropriate remedy in situations of lesser gravity would not have been able to achieve these objectives in the present case.", "58. The Court further reiterates that the State authorities have a responsibility to provide adequate protection measures to the victims of domestic violence in the form of effective deterrence against serious breaches of their physical and psychological integrity (see Opuz, cited above, § 176, and Volodina, cited above, § 86). Whereas in a large majority of Council of Europe member States victims of domestic violence may apply for immediate “restraining” or “protection” orders capable of forestalling the recurrence of domestic violence, Russia has remained among only a few member States whose national legislation does not provide victims of domestic violence with any comparable measures of protection (see Volodina, cited above, §§ 88-89). The respondent Government did not identify any effective remedies that the authorities could have used to ensure the applicant’s protection against recurrent acts of cyberviolence. The civil law mechanism does not include the rigorous monitoring of the perpetrator’s compliance with the terms of an injunction capable of ensuring the victim’s safety from the risk of recurrent abuse (ibid., § 89).", "59. As to the orders prohibiting certain conduct (see paragraph 32 above), the Court is unable to find that they offer sufficient protection to victims of domestic violence in the applicant’s situation. The order is a measure of restraint limited to the sphere of criminal law, the availability of which depends on the existence of a criminal case. However, as noted above, the domestic authorities may delay or refuse to open a criminal case, including in respect of serious incidents such as threats of death, malicious impersonation or stalking with the use of a tracking device. Moreover, it is also difficult to expect that such orders can be granted in practice with the urgency that is often essential in domestic violence situations. The application for an order is also conditional on the procedural status of the perpetrator: so long as the investigation has not gathered evidence to charge the perpetrator, a measure of restraint can be imposed on a suspect only in “exceptional circumstances” (see Birulev and Shishkin v. Russia, nos. 35919/05 and 3346/06, § 33, 14 June 2016). Since the case against S. had not progressed beyond the stage of suspicion, the shortcomings of the preceding investigation adversely affected the applicant’s chances of having that measure of restraint applied to him.", "60. It is even more significant that an order prohibiting certain conduct is not directly accessible to the victim who must petition the investigator to raise an application to that effect before a court. The investigator has full discretion to grant or deny the petition. The investigator’s refusal is amenable to judicial review, for which the applicant unsuccessfully applied (see paragraph 12 above). The Ulyanovsk courts, however, did not undertake an independent scrutiny of the substantive grounds for refusal, confining themselves to a finding that the investigator had not overstepped the limits of his powers (compare Lyapin v. Russia, no. 46956/09, § 138, 24 July 2014).", "61. The Court has found in the first Volodina case that the response of the Russian authorities to the known risk of recurrent violence on the part of the applicant’s former partner was manifestly inadequate and that, through their inaction and failure to take measures of deterrence, they allowed S. to continue threatening, harassing and assaulting the applicant without hindrance and with impunity (see Volodina, cited above, § 91). This finding is applicable in the circumstances of the present case in which the authorities did not consider at any point in time what could and should be done to protect the applicant from recurrent online violence.", "62. Turning to the manner in which the Russian authorities conducted an investigation into the applicant’s reports, the Court reiterates that, to be effective, an investigation must be prompt and thorough. The authorities must take all reasonable steps to secure evidence concerning the incident, including forensic evidence. Special diligence is required in dealing with domestic-violence cases, and the specific nature of the domestic violence must be taken into account in the conduct of the domestic proceedings (see Volodina, cited above, § 92).", "63. As regards the investigation into the fake social media profiles and the dissemination of the applicant’s intimate photos, a criminal case was opened only on 6 March 2018, almost two years after the applicant had first reported the fake profiles to the police on 22 June 2016 (see paragraphs 7 and 9 above). Before that, it would appear that the police sought to dispose hastily of the matter on formal grounds, citing lack of territorial jurisdiction or lack of an offence (see paragraphs 7 and 8 above), instead of making a serious and genuine attempt to establish the circumstances of the applicant’s malicious impersonation on social media. Since States are responsible for delays, whether attributable to the conduct of their judicial or other authorities or to structural deficiencies in its judicial system which cause delays (see Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, § 128, 7 July 2015), it is immaterial whether the initial two-year delay was caused by a lack of clear rules on jurisdiction for investigating online offences or by the reluctance of individual police officers to take up the case.", "64. The Government sought to account for the delay by the fact that S. was unavailable for questioning. This explanation does not convince the Court. It is apparent from the circumstances of the first Volodina case that as early as August 2016 the police in Samara could have taken evidence from S. in connection with another offence committed against the applicant (see Volodina, cited above, § 23). If S. had indeed gone missing, the police could have made use of the extensive powers available to them under the Police Act and the Operational-Search Activities Act to search for and apprehend persons suspected of criminal offences (see Shimovolos v. Russia, no. 30194/09, §§ 33-38, 21 June 2011). In any event, whether or not S. was readily available for questioning, the police should have acted promptly and in good faith to secure forensic evidence of the alleged offences, including the identification of phone numbers and Internet addresses which had been used to create the fake profiles and upload the applicant’s photos. However, this was not done until the criminal case was opened in 2018, resulting in a loss of time and undermining the authorities’ ability to secure evidence relating to the acts of cyberviolence.", "65. The investigation which was conducted from 2018 onwards cannot be said to have been expeditious or sufficiently thorough. It took the authorities nearly a year to obtain information about the Internet addresses of the fake accounts from the Russian company operating the social media platform VKontakte; the authorities did not send any requests to Instagram to identify the owner of the fake accounts. The questioning of the applicant and inspection of the fake pages on Instagram had taken place in May 2020, that is two years since her complaint in 2018. The authorities appear to have established both the person whose phone number and Internet address had been used to create the fake accounts in 2016, and the owner of the phone number in Azerbaijan which had been used to create two fake accounts in 2018. However, their communications and possible links with S. were not investigated; it was not established how the person in Azerbaijan could have come by the applicant’s intimate photos and personal data.", "66. A “pre-investigation inquiry” into the other offences which the applicant had reported to the police did not lead to any criminal case being opened. In the matter of the tracking device found in the applicant’s bag, the procedural decision on her complaint was issued almost three years later after her report to the police (see paragraphs 13 and 17 above). The investigative authorities did not contact her about the complaint, did not ask S. any questions about the device, and did not deploy technical means to determine the number of the SIM card installed in the device using the service provider’s network infrastructure. The authorities also failed to investigate the death threats which the applicant had received online and reported to the police in August and September 2019 (see paragraph 11 above). Without undertaking any investigative steps, the police concluded that no offence had been committed. As the Court found in the first Volodina case, the police would arbitrarily raise the bar for evidence required to launch criminal proceedings, claiming that threats of death had to be “real and specific” in order to be prosecutable (see Volodina, cited above, § 98). Most importantly, the authorities failed to take a global view of the situation by considering whether those incidents could be said to be so connected in type and context with the physical assaults the applicant reported (see Volodina, cited above, §§ 31-36) as to justify the conclusion that they amounted to a single course of conduct (see Buturugă, cited above, § 78).", "67. As a consequence of the slow-paced investigation into the fake social media profiles, the prosecution eventually became time-barred. The criminal case against S. was discontinued by application of the statute of limitations on his initiative, even though his involvement in the creation of the fake profiles appears to have been established (see paragraph 20 above). The Court has found violations of the obligation to conduct an effective investigation in cases where the proceedings had continued unduly or had ended by prescription allowing the perpetrators to escape accountability (see Opuz, cited above, § 151; P.M. v. Bulgaria, no. 49669/07, §§ 64-66, 24 January 2012, and, in a factually similar situation, Barsova v. Russia [Committee], no. 20289/10, §§ 35-40, 22 October 2019). The effectiveness principle means that the domestic authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in acts of violence (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 ‑ XII (extracts)). By failing to conduct the proceedings with the requisite diligence, the Russian authorities bear responsibility for their failure to ensure that the perpetrator of acts of cyberviolence be brought to justice. The impunity which ensued was enough to shed doubt on the ability of the State machinery to produce a sufficiently deterrent effect to protect women from cyberviolence.", "68. In sum, the Court finds that, even though the existing framework equipped the authorities with legal tools to prosecute the acts of cyberviolence of which the applicant was a victim, the manner in which they actually handled the matter – notably a reluctance to open a criminal case and a slow pace of the investigation resulting in the perpetrator’s impunity – disclosed a failure to discharge their positive obligations under Article 8 of the Convention. There has accordingly been a violation of that provision.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "69. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "70. The applicant asked the Court to determine the appropriate amount of the award in respect of non-pecuniary damage. She claimed 5,386.46 euros (EUR) in respect of legal, administrative and postal expenses.", "71. The Government submitted that the claim in respect of non ‑ pecuniary damage was to be rejected for failure to specify the amount claimed. They further submitted that the legal costs relating to the threats of death and the tracking-device incident fell out of the scope of the case and should not be reimbursed.", "72. Since non-pecuniary damage does not, by its nature, lend itself to precise calculation, the Court has accepted to examine claims in respect of non-pecuniary damage for which applicants did not quantify the amount, leaving it to the Court’s discretion (see Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017). Making its own assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. The payment is to be effected on the basis of the applicant’s new identity documents which were communicated to the Government on giving notice of the application.", "73. The Court further notes that the claim for costs and expenses has been properly substantiated, reasonable as to quantum and relevant to the matters considered in the present application. It awards the amount claimed in respect of costs and expenses, plus any tax that may be chargeable to the applicant, payable into the bank account of the applicant’s representative.", "74. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1972 and lives in Diyarbakır.", "8. The applicant ’ s mother married A.O. in a religious ceremony. In 1990 the applicant and H.O., A.O. ’ s son, started a relationship and began living together. They officially married on 12 November 1995. They had three children, in 1993, 1994 and 1996. The applicant and H.O. had heated arguments from the outset of their relationship. The facts set out below were not disputed by the Government.", "A. The first assault by H.O. and A.O. against the applicant and her mother", "9. On 10 April 1995 the applicant and her mother filed a complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. and A.O had been asking them for money, and had beaten them and threatened to kill them. They also alleged that H.O. and his father wanted to bring other men home.", "10. On the same day, the applicant and her mother were examined by a doctor. The applicant ’ s medical report noted bruises on her body, an ecchymosis and swelling on her left eyebrow and fingernail scratches on the neck area. The medical report on the applicant ’ s mother also noted bruises and swellings on her body. On 20 April 1995 definitive reports were issued, which confirmed the findings of the first report and stated that the injuries in question were sufficient to render both the applicant and her mother unfit to work for five days.", "11. On 25 April 1995 the public prosecutor lodged indictments against H.O. and A.O. for death threats and actual bodily harm. On 15 June 1995 the Diyarbakır First Magistrate ’ s Court discontinued the assault case, as the applicant and her mother had withdrawn their complaints and had thereby removed the basis for the proceedings under Article 456 § 4 of the Criminal Code.", "12. On 11 September 1995 the Diyarbakır Second Magistrate ’ s Court also acquitted the defendants of making death threats on account of the lack of evidence, and again discontinued the assault case, noting that it had been previously heard by the Diyarbakır First Magistrate ’ s Court.", "B. The second assault by H.O. against the applicant", "13. On 11 April 1996, during an argument, H.O. beat the applicant very badly. The medical report drawn up on that occasion recorded surface bleeding on the applicant ’ s right eye, bleeding on her right ear, an ecchymosis on her left shoulder and back pain. The report concluded that the applicant ’ s injuries were sufficient to endanger her life. On the same day, at the request of the public prosecutor and by a decision of a single judge, H.O. was remanded in custody.", "14. On 12 April 1996 the public prosecutor filed a bill of indictment with the Diyarbakır Criminal Court, accusing H.O. of aggravated bodily harm under Articles 456 § 2 and 457 § 1 of the Criminal Code.", "15. On 15 April 1996 H.O. filed a petition with the Presidency of the First Magistrate ’ s Court, requesting his release pending trial. He explained that during an argument with his wife he had become angry and had slapped his wife two or three times. Then his mother-in-law, who worked at a hospital, had obtained a medical report for his wife and that report had led to his detention for no reason. He stated that he did not want to lose his family and business and that he regretted beating his wife.", "16. On 16 April 1996 the Second Magistrate ’ s Court dismissed H.O. ’ s request for release pending trial and decided that his pre-trial detention should be continued.", "17. At the hearing on 14 May 1996, the applicant repeated her complaint. The public prosecutor requested that H.O. be released pending trial, considering the nature of the offence and the fact that the applicant had regained full health. Consequently, the court released H.O.", "18. At a hearing of 13 June 1996, the applicant withdrew her complaint, stating that she and her husband had made their peace.", "19. On 18 July 1996 the court found that the offence fell under Article 456 § 4 of the Criminal Code, for which the applicant ’ s complaint was required in order to pursue the proceedings. It accordingly discontinued the case on the ground that the applicant had withdrawn her complaint.", "C. The third assault by H.O. against the applicant and her mother", "20. On 5 February 1998 the applicant, her mother, her sister and H.O. had a fight, in the course of which H.O. pulled a knife on the applicant. H.O., the applicant and her mother sustained injuries. The medical reports certified injuries which rendered them unfit to work for seven, three and five days respectively.", "21. On 6 March 1998 the public prosecutor decided not to prosecute anyone in respect of this incident. He concluded that there was insufficient evidence to prosecute H.O. in connection with the knife assault, and that the other offences such as battery and damage to property could be the subject of civil lawsuits. There was thus no public interest in pursuing the case.", "22. The applicant went to stay with her mother.", "D. The fourth assault by H.O. against the applicant and her mother: threats and assault (using a car) leading to initiation of divorce proceedings", "23. On 4 March 1998 H.O. ran a car into the applicant and her mother. The applicant ’ s mother was found to be suffering from life - threatening injuries. At the police station, H.O. maintained that the incident had been an accident. He had only wished to give the applicant and her mother a lift, which they had refused before they continued walking. They had then thrown themselves in front of the car. The applicant ’ s mother alleged that H.O. had told them to get into his car and that he would kill them if they refused. Since they did not want to get into the car and had started running away, H.O. had driven his car into the applicant, who had fallen. While the applicant ’ s mother tried to help her daughter, H.O. reversed and then drove forward, this time into the mother. The applicant ’ s mother regained consciousness in hospital. In her statements to the police the applicant confirmed her mother ’ s statements and alleged that her husband had tried to kill them with his car.", "24. On 5 March 1998 a single judge at the Diyarbakır Magistrate ’ s Court remanded H.O. in custody.", "25. On 19 March 1998 the public prosecutor initiated criminal proceedings against H.O. in the Diyarbakır Third Criminal Court for making death threats and inflicting grievous bodily harm. On the same day the Forensic Medicine Institute submitted a medical report which noted grazes on the applicant ’ s knees. The report concluded that the applicant ’ s injuries rendered her unfit to work for five days.", "26. On 20 March 1998 the applicant brought divorce proceedings against H.O. on the grounds that they had intense disagreements, that he was evading his responsibilities as a husband and a father, that he was mistreating her ( as proved by medical reports ), and that he was bringing other women to their home. The applicant submits that she later dropped the divorce case due to threats and pressure from her husband.", "27. On 2 April 1998 the applicant and her mother filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, asking for protective measures from the authorities subsequent to the death threats issued by H.O. and his father.", "28. On 2 and 3 April 1998 police officers took statements from the applicant, her mother, her brother and the latter ’ s wife as well as H.O. and his father. The applicant and her mother stated that H.O. had attempted to kill them with his car and that he had threatened to kill them if the applicant did not return to H.O. They noted that the applicant had already commenced divorce proceedings and that she did not want to return to live with H.O. The applicant ’ s brother and his wife alleged that the applicant was discouraged by her mother from going back to her husband and that they knew nothing about the threats issued by H.O. and his father. H.O. contended that his only intention was to bring his family together, but that his mother-in-law was preventing this. He also alleged that he had gone to the applicant ’ s brother and family elders for help, but to no avail. He maintained that he had never threatened the applicant or her mother and that their allegations were slanderous. H.O. ’ s father maintained that the applicant ’ s mother wanted her daughter to divorce H.O. and to marry somebody else.", "29. In a report dated 3 April 1998, the Director of the Law and Order Department of the Diyarbakır Security Directorate informed the Chief Public Prosecutor ’ s Office of the outcome of the investigation into the allegations made by the applicant and her mother. He concluded that the applicant had left her husband and gone to live with her mother. H.O. ’ s repeated requests for the return of his wife had been turned down by the applicant ’ s mother and the latter had insulted H.O. and made allegations that H.O. had issued death threats against her. H.O. had spent twenty - five days in prison for running a car into his mother - in-law and, following his release, had asked a number of mediators to convince his wife to return home. However, the mother did not allow the applicant to go back to H.O. Both parties had issued threats against each other. Furthermore, the mother had wished to separate her daughter from H.O. in order to take revenge on her ex-husband, had constantly made slanderous allegations and had also “wasted” the security forces ’ time.", "30. On 14 April 1998 the Diyarbakır Chief Public Prosecutor indicted H.O. and his father A.O. and charged them with issuing death threats against the applicant and her mother, contrary to Article 188 § 1 of the Criminal Code.", "31. On 30 April 1998 the Diyarbakır Criminal Court released H.O. pending trial. It further declared that it had no jurisdiction over the case and sent the file to the Diyarbakır Assize Court.", "32. On 11 May 1998 the Assize Court classified the offence as attempted murder. During the hearing of 9 July 1998, H.O. repeated that the incident had been an accident; the car door was open, and had accidentally hit the complainants when he moved the car. The applicant and her mother confirmed H.O. ’ s statement and maintained that they no longer wished to continue the proceedings.", "33. On 23 June 1998 the Diyarbakır Assize Court acquitted H.O. and his father of the charges of issuing death threats, for lack of sufficient evidence. The court noted that the accused had denied the allegations and the complainants had withdrawn their complaints. The applicant again resumed living with H.O.", "34. On 9 July 1998 the applicant ’ s mother was given another medical examination, which found that her injuries were not life-threatening but were sufficient to render her unfit for work for twenty - five days.", "35. At the hearing of 8 October 1998 the applicant and her mother withdrew their complaints. They stated that the car door had been open and that H.O. had accidentally hit them. When questioned about their complaints against H.O., the applicant and her mother stated that they had had a fight with H.O. and that they had made those allegations in anger.", "36. On 17 November 1998 the Diyarbakır Assize Court concluded that the case should be discontinued in respect of the offence against the applicant, as she had withdrawn her complaint. However, it decided that, although the applicant ’ s mother had also withdrawn her complaint, H.O. should still be convicted of that offence, since the injuries were more serious. Subsequently, the court sentenced H.O. to three months ’ imprisonment and a fine; the sentence of imprisonment was later commuted to a fine.", "E. The fifth assault by H.O. against the applicant : causing grievous bodily harm", "37. On 29 October 2001 the applicant went to visit her mother. Later that day H.O. telephoned and asked the applicant to return home. The applicant, worried that her husband would again be violent towards her, said to her mother “this man is going to tear me to pieces!” The applicant ’ s mother encouraged the applicant to return home with the children. Three-quarters of an hour later one of the children went back, saying that his father had stabbed and killed his mother. The applicant ’ s mother rushed to the applicant ’ s house. She saw that the applicant was lying on the floor bleeding. With the help of neighbours, she put the applicant into a taxi and took her to the Diyarbakır State Hospital. The hospital authorities told her that the applicant ’ s condition was serious and transferred her to the Dicle University Hospital, which was better equipped. The medical report on the applicant noted seven knife injuries on different parts of her body. However, the injuries were not classified as life-threatening.", "38. At about 11.30 p.m. on the same day, H.O. handed himself in at a police station. The police confiscated the knife which he had used during the incident. H.O. maintained that his wife and children were still not at home when he came back at 6 p.m. He had telephoned them and asked them to come back. On their return, he asked the applicant, “Why are you wandering outside? Why haven ’ t you cooked anything for me?” The applicant replied, “We ate at my mother ’ s”, and brought him a plate of fruit. They continued arguing. He told her, “Why are you going to your mother so often? Don ’ t go there so much, stay at home and look after the children!” The argument escalated. At some point, the applicant attacked him with a fork. They started fighting, during which he lost control, grabbed the fruit knife and stabbed her; he did not remember how many times. He claimed that his wife was bigger than him, so he had to respond when she attacked him. He added that his wife was not a bad person and that they had lived together peacefully until two years previously. However, they started fighting when the applicant ’ s mother began interfering with their marriage. He stated that he regretted what he had done. H.O. was released after his statement had been taken.", "39. On 31 October 2001 the applicant ’ s mother ’ s lawyer petitioned the Diyarbakır Public Prosecutor ’ s Office. In her petition, she stated that the applicant ’ s mother had told her that H.O. had beaten her daughter very badly about five years earlier, after which he was arrested and detained. However, he was released at the first hearing. She maintained that her client and the applicant had been obliged to withdraw their complaints due to continuing death threats and pressure from H.O. She further stated that there was hearsay about H.O. being involved in trafficking women. Finally, she referred to the incident of 4 March 1998 (see paragraph 23 above), arguing that, following such a serious incident, H.O. ’ s release was morally damaging and requested that he be detained on remand.", "40. On 2 November 2001 the applicant ’ s lawyer filed an objection with the Chief Public Prosecutor ’ s Office against the medical report of the Dicle Medical Faculty Hospital, which had concluded that the applicant ’ s injuries were not life-threatening. The lawyer requested a new medical examination.", "41. On 9 November 2001 the applicant filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, complaining that she had been stabbed many times by H.O. subsequent to an argument with him. She asked the public prosecutor to send her to the Forensic Institute for a new medical examination.", "42. On 8 November 2001 the applicant underwent a new medical examination at the Forensic Institute in Diyarbakır on the instructions of the public prosecutor. The forensic medical doctor noted the presence of wounds caused by a knife on the left - hand wrist (3 cm long), on the left hip (5 cm deep), another 2 cm-deep wound on the left hip and a wound just above the left knee. He opined that these injuries were not life-threatening but would render the applicant unfit for work for seven days.", "43. On 12 December 2001 the public prosecutor filed a bill of indictment with the Diyarbakır Magistrate ’ s Court, charging H.O. with knife assault under Articles 456 § 4 and 457 § 1 of the Criminal Code.", "44. By a criminal decree of 23 May 2002, the Diyarbakır Second Magistrate ’ s Court imposed a fine of 839,957,040 Turkish liras (TRL) on H.O for the knife assault on the applicant. It decided that he could pay this fine in eight instalments.", "F. The sixth incident whereby H.O. threatened the applicant", "45. On 14 November 2001 the applicant lodged a criminal complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. had been threatening her.", "46. On 11 March 2002 the public prosecutor decided that there was no concrete evidence to prosecute H.O. apart from the allegations made by the applicant.", "G. The applicant ’ s mother filed a complaint with the public prosecutor ’ s office alleging death threats issued by H.O. and A.O.", "47. On 19 November 2001 the applicant ’ s mother filed a complaint with the public prosecutor. In her petition, she stated that H.O., A.O. and their relatives had been consistently threatening her and her daughter. In particular, H.O. told her, “I am going to kill you, your children and all of your family!” He was also harassing her and invading her privacy by wandering around her property carrying knives and guns. She maintained that H.O. was to be held liable should an incident occur involving her and her family. She also referred to the events of 29 October 2001, when the applicant was stabbed by him (see paragraph 37 above). In response to this petition, on 22 November 2002, the public prosecutor wrote a letter to the Security Directorate in Diyarbakır and asked them to take statements from the complainant and H.O. and to submit an investigation report to his office.", "48. In the meantime, on 14 December 2001 the applicant again initiated divorce proceedings in the Diyarbakır Civil Court.", "49. On 23 December 2001 the police took statements from H.O. in relation to the applicant ’ s mother ’ s allegations. He denied the allegations against him and claimed that his mother-in-law, who had been interfering with his marriage and influencing his wife to lead an immoral life, had issued threats against him. The police took further statements from the applicant ’ s mother on 5 January 2002. She claimed that H.O. had been coming to her doorstep every day, showing a knife or shotgun and threatening to kill her, her daughter and her grandchildren.", "50. On 10 January 2002 H.O. was charged under Article 191 § 1 of the Criminal Code with making death threats.", "51. On 27 February 2002 the applicant ’ s mother submitted a further petition to the Diyarbakır Public Prosecutor ’ s Office. She maintained that H.O. ’ s threats had intensified. H.O., together with his friends, had been harassing her, threatening her and swearing at her on the telephone. She stated that her life was in immediate danger and requested that the police tap her telephone and take action against H.O. On the same day, the public prosecutor instructed the Directorate of Turkish Telecom in Diyarbakır to submit to his office a list of all the numbers which would call the applicant ’ s mother ’ s telephone line over the following month. In the absence of any response, the public prosecutor repeated his request on 3 April 2002.", "52. On 16 April 2002 the Diyarbakır Magistrate ’ s Court questioned H.O. in relation to his knife assault on his mother-in-law. He repeated the statement he had made to the police, adding that he did not wish his wife to visit her mother, as the mother had been pursuing an immoral life.", "H. The killing of the applicant ’ s mother by H.O.", "53. The applicant had been living with her mother since the incident of 29 October 2001.", "54. On an unspecified date the applicant ’ s mother made arrangements with a removal company to move her furniture to İzmir. H.O. learned of this and allegedly said, “Wherever you go, I will find and kill you!”. Despite the threats, on 11 March 2002 the furniture was loaded onto the removal company ’ s pick-up truck. The pick-up truck made two trips between the company ’ s transfer centre and the house. On its third trip, the applicant ’ s mother asked the driver whether she could drive with him to the transfer centre. She sat on the front seat, next to the driver. On their way, a taxi pulled up in front of the truck and started signalling. The pick-up driver, thinking that the taxi driver was going to ask for an address, stopped. H.O. got out of the taxi. He opened the front door where the applicant ’ s mother was sitting, shouted something like, “Where are you taking the furniture?” and shot her. The applicant ’ s mother died instantly.", "I. The criminal proceedings against H.O.", "55. On 13 March 2002 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court, accusing H.O. of intentional murder under Article 449 § 1 of the Criminal Code.", "56. In his statements to the police, the public prosecutor and the court, H.O. claimed that he had killed the applicant ’ s mother because she had induced his wife to lead an immoral life, like her own, and had encouraged his wife to leave him, taking their children with her. He further alleged that on the day of the incident, when he asked the deceased where she was taking the furniture and where his wife was, the deceased had replied “F... off, I will take away your wife, and sell [her]”. He stated that he had lost his temper and had shot her for the sake of his honour and children.", "57. In a final judgment dated 26 March 2008, the Diyarbakır Assize Court convicted H.O. of murder and illegal possession of a firearm. It sentenced him to life imprisonment. However, taking into account the fact that the accused had committed the offence as a result of provocation by the deceased and his good conduct during the trial, the court mitigated the original sentence, changing it to fifteen years and ten months ’ imprisonment and a fine of 180 Turkish liras (TRY). In view of the time spent by the convict in pre-trial detention and the fact that the judgment would be examined on appeal, the court ordered the release of H.O.", "58. The appeal proceedings are still pending before the Court of Cassation.", "J. Recent developments following the release of H.O.", "59. In a petition dated 15 April 2008, the applicant filed a criminal complaint with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir, for submission to the Diyarbakır Chief Public Prosecutor ’ s Office, and asked the authorities to take measures to protect her life. She noted that her ex ‑ husband [1], H.O., had been released from prison and that in early April he had gone to see her boyfriend M.M., who worked at a construction site in Diyarbakır, and had asked him about her whereabouts. Since M.M. refused to tell him her address, H.O. threatened him and told him that he would kill him and the applicant. The applicant claimed that H.O. had already killed her mother and that he would not hesitate to kill her. She had been changing her address constantly so that H.O. could not find her. Finally, she asked the prosecuting authorities to keep her address, indicated on the petition, and her boyfriend ’ s name confidential and to hold H.O. responsible if anything untoward happened to her or her relatives.", "60. On 14 May 2008 the applicant ’ s representative informed the Court that the applicant ’ s husband had been released from prison and that he had again started issuing threats against the applicant. She complained that no measures had been taken despite the applicant ’ s request. She therefore asked the Court to request the Government to provide sufficient protection.", "61. In a letter dated 16 May 2008, the Registry transmitted the applicant ’ s request to the Government for comments and invited them to inform the Court of the measures to be taken by their authorities.", "62. On 26 May 2008 the Director of the International Law and Relations Department attached to the Ministry of Justice faxed a letter to the Diyarbakır Chief Public Prosecutor ’ s Office in relation to the applicant ’ s complaints to the European Court of Human Rights. He informed the Chief Public Prosecutor ’ s Office of the applicant ’ s pending application before the Court and asked them to provide information on the current state of execution of H.O. ’ s sentence, the state of proceedings with regard to the applicant ’ s criminal complaint filed with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir and the measures taken to protect the applicant ’ s life.", "63. On the same day, a public prosecutor from the Diyarbakır Chief Public Prosecutor ’ s Office wrote to the Diyarbakır Governor ’ s Office and asked him to take measures for the protection of the applicant.", "64. By a letter of 28 May 2008 from the Diyarbakır Chief Public Prosecutor ’ s Office to the Şehitler Central Police Directorate in Diyarbakır, the Public Prosecutor (A.E.) asked the police to summon H.O. to his office in relation to an investigation.", "65. On 29 May 2008 A.E. questioned H.O. in relation to the criminal complaint filed by the applicant. H.O. denied the allegation that he had issued threats against the applicant and claimed that she had made such allegations in order to disturb him following his release from prison. He maintained that he did not feel any enmity towards the applicant and that he had devoted himself to his family and children.", "66. On 3 June 2008 A.E. took statements from the applicant ’ s boyfriend, M.M. The latter stated that H.O. had called him and asked him for the applicant ’ s address, and had told him that he would kill her. M.M. did not meet H.O. Nor did he file a criminal complaint against H.O. He had, however, called the applicant and informed her about the threats issued by H.O.", "67. In a letter dated 20 June 2008, the Government informed the Court that the applicant ’ s husband had not yet served his sentence but that he had been released pending the appeal proceedings in order to avoid exceeding the permissible limit of pre-trial detention. They also stated that the local governor ’ s office and the Chief Public Prosecutor ’ s Office had been informed about the applicant ’ s complaint and that they had been instructed to take precautions for the protection of the applicant.", "68. Finally, on 14 November 2008 the applicant ’ s legal representative informed the Court that his client ’ s life was in immediate danger since the authorities had still not taken any measures to protect her from her former husband. The Registry of the Court transmitted this letter on the same day to the Government, inviting them to provide information about the measures they had taken to protect the applicant.", "69. On 21 November 2008 the Government informed the Court that the police authorities had taken specific measures to protect the applicant from her former husband. In particular, the photograph and fingerprints of the applicant ’ s husband had been distributed to police stations in the region so that they could arrest him if he appeared near the applicant ’ s place of residence. The police questioned the applicant in relation to the allegations. She stated that she had not been threatened by her husband over the past month and a half." ]

[ "II. RELEVANT LAW AND PRACTICE", "A. Domestic law and practice", "70. The relevant domestic law provisions relied on by the judicial authorities in the instant case are set out below.", "1. The Criminal Code", "Article 188", "“ Whoever by use of force or threats compels another person to do or not to do something or to obtain the latter ’ s permission to do something ... will be sentenced to between six months ’ and one year ’ s imprisonment, and a major fine of between one thousand and three thousand liras ...”", "Article 191 § 1", "“Whoever, apart from the situations set out in law, threatens another person with severe and unjust damage will be sentenced to six months ’ imprisonment.”", "Article 449", "“If the act of homicide is:", "( a ) committed against a wife, husband, sister or brother, adoptive mother, adopted child, stepmother, stepfather, stepchild, father-in-law, mother-in-law, son-in-law, or daughter -in-law ... the offender will be sentenced to life imprisonment ...”", "Article 456 § § 1, 2 and 4", "“ Whoever torments another person physically or damages his or her welfare or causes cerebral damage, without intending murder, will be sentenced to between six months ’ and one year ’ s imprisonment.", "Where the act constitutes a danger to the victim ’ s life or causes constant weakness in one of the organs or senses, or permanent difficulty in speech or permanent injuries to the face, or physical or mental illness for twenty or more days, or prevents [the victim] from continuing his regular work for the same number of days, the offender will be sentenced to between two and five years ’ imprisonment.", "...", "If the act did not cause any illness or did not prevent [the victim] from continuing his regular work or these situations did not last for more than ten days, the offender will be sentenced to between two and six months ’ imprisonment or to a heavy fine of twelve thousand to one hundred and fifty thousand liras, provided that the injured person complains ...”", "Article 457", "“If the acts mentioned in Article 456 are committed against the persons cited in Article 449 or if the act is committed by a hidden or visible weapon or harmful chemical, the punishment shall be increased by one - third to a half of the main sentence.”", "Article 460", "“In situations mentioned under Articles 456 and 459, where commencement of the prosecution depends on the lodging of a complaint [by the victim], if the complainant waives his/her claims before the pronouncement of the final judgment the public prosecution shall be terminated.”", "2. The Family Protection Act (Law no. 4320 of 14 January 1998)", "Section 1", "“If a spouse or a child or another family member living under the same roof is subjected to domestic violence and if the magistrate ’ s court dealing with civil matters is notified of the fact by that person or by the Chief Public Prosecutor ’ s Office, the judge, taking account of the nature of the incident, may on his or her own initiative order one or more of the following measures or other similar measures as he or she deems appropriate. The offending spouse may be ordered:", "(a) not to engage in violent or threatening behaviour against the other spouse or the children (or other family members living under the same roof);", "(b) to leave the shared home and relinquish it to the other spouse and the children, if any, and not to approach the home in which the other spouse and the children are living, or their workplaces;", "(c) not to damage the property of the other spouse (or of the children or other family members living under the same roof);", "(d) not to disturb the other spouse or the children (or other family members living under the same roof) through the use of communication devices;", "(e) to surrender any weapons or similar instruments to law-enforcement officials;", "(f) not to arrive at the shared home when under the influence of alcohol or other intoxicating substances, or not to use such substances in the shared home.", "The above ‑ mentioned measures shall be applied for a period not exceeding six months. In the order, the offending spouse shall be warned that in the event of failure to comply with the measures imposed, he or she will be arrested and sentenced to a term of imprisonment. The judge may order interim maintenance payments, taking account of the victim ’ s standard of living.", "Applications made under section 1 shall not be subject to court fees. ”", "Section 2", "“ The court shall transmit a copy of the protection order to the Chief Public Prosecutor ’ s Office. The Chief Public Prosecutor ’ s Office shall monitor implementation of the order by means of the law-enforcement agencies.", "In the event of failure to comply with the protection order, the law-enforcement agency shall conduct an investigation on its own initiative, without the victim being required to lodge a complaint, and shall transmit the documents to the Chief Public Prosecutor ’ s Office without delay.", "The Chief Public Prosecutor ’ s Office shall bring a public prosecution in the magistrate ’ s court against a spouse who fails to comply with a protection order. The location and expeditious holding of the hearing in the case shall be subject to the provisions of Law no. 3005 on the procedure governing in flagrante delicto cases.", "Even if the act in question constitutes a separate offence, a spouse who fails to comply with a protection order shall also be sentenced to three to six months ’ imprisonment. ”", "3. Implementing regulations for the Family Protection Act, dated 1 March 2008", "71. These regulations, which were drawn up to govern the implementation of Law no. 4320, set out the measures to be taken in respect of the family members perpetrating violence and the procedures and principles governing the application of those measures, in order to protect family members subjected to domestic violence.", "B. Relevant international and comparative - law materials", "1. The United Nations ’ position with regard to domestic violence and discrimination against women", "72. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly and ratified by Turkey on 19 January 1986.", "73. The CEDAW defines discrimination against women as “ ... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” As regards the States ’ obligations, Article 2 of the CEDAW provides, in so far as relevant, the following:", "“States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:", "...", "(e) to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise;", "(f) to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;", "... ”", "74. The Committee on the Elimination of All Forms of Discrimination Against Women (hereinafter “the CEDAW Committee”) has found that “gender-based violence is a form of discrimination that seriously inhibits women ’ s ability to enjoy rights and freedoms on a basis of equality with men” and is thus prohibited under Article 1 of the CEDAW. Within the general category of gender-based violence, the CEDAW Committee includes violence by “private act” [2] and “family violence” [3]. Consequently, gender-based violence triggers duties in States. General Recommendation No. 19 sets out a catalogue of such duties. They include a duty on States to “take all legal and other measures that are necessary to provide effective protection of women against gender-based violence ” [4], “ including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence” [5]. In its Concluding Comments on the combined fourth and fifth periodic report of Turkey (hereinafter “ the Concluding Comments”), the CEDAW Committee reiterated that violence against women, including domestic violence, is a form of discrimination (see UN doc. CEDAW/C/TUR/4-5 and Corr.1, 15 February 2005, § 28).", "75. Furthermore, in its explanations of General Recommendation No. 19, the CEDAW Committee considered the following:", "“... 6. The Convention in Article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.", "7. Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of Article 1 of the Convention.", "Comments on specific Articles of the Convention", "...", "Articles 2 (f), 5 and 10 (c)", "11. Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.”", "76. In the case of A.T. v. Hungary (decision of 26 January 2005), where the applicant had alleged that her common-law husband and father of her two children had been physically abusing and threatening her from 1998 onwards, the CEDAW Committee directed Hungary to take measures “to guarantee the physical and mental integrity of the applicant and her family”, as well as to ensure that she was provided with a safe place of residence to live with her children, and that she received child support, legal assistance and compensation in proportion to the harm sustained and the violation of her rights. The Committee also made several general recommendations to Hungary on improving the protection of women against domestic violence, such as establishing effective investigative, legal and judicial processes, and increasing treatment and support resources.", "77. In the case of Fatma Yıldırım v. Austria (decision of 1 October 2007), which concerned the killing of Mrs Yıldırım by her husband, the CEDAW Committee found that the State Party had breached its due diligence obligation to protect Fatma Yıldırım. It therefore concluded that the State Party had violated its obligations under Article 2 (a) and (c) to (f), and Article 3 of the CEDAW read in conjunction with Article 1 of the CEDAW and General Recommendation No. 19 of the CEDAW Committee and the corresponding rights of the deceased Fatma Yıldırım to life and to physical and mental integrity.", "78. The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4 (c), urges States to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons”.", "79. In his third report, of 20 January 2006, to the Commission on Human Rights of the United Nations Economic and Social Council (E/CN.4/2006/61), the special rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”.", "2. The Council of Europe", "80. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention.", "81. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’ s rights are protected during proceedings.", "82. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.", "3. The Inter-American System", "83. In Velazquez-Rodriguez v. Honduras, the Inter-American Court of Human Rights stated:", "“An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.” [6]", "84. The legal basis for the ultimate attribution of responsibility to a State for private acts relies on State failure to comply with the duty to ensure human rights protection, as set out in Article 1 § 1 of the American Convention on Human Rights [7]. The Inter-American Court ’ s case-law reflects this principle by repeatedly holding States internationally responsible on account of their lack of due diligence to prevent human rights violations, to investigate and sanction perpetrators or to provide appropriate reparations to their families.", "85. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women 1994 ( the Belém do Pará Convention) [8] sets out States ’ duties relating to the eradication of gender - based violence. It is the only multilateral human rights treaty to deal solely with violence against women.", "86. The Inter-American Commission adopts the Inter-American Court of Human Right ’ s approach to the attribution of State responsibility for the acts and omissions of private individuals. In the case of Maria Da Penha v. Brazil [9], the Commission found that the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint warranted a finding of State responsibility under the American Convention on Human Rights and the Belém do Pará Convention. Furthermore, Brazil had violated the rights of the applicant and failed to carry out its duty ( inter alia, under Article 7 of the Belém do Pará Convention, obliging States to condemn all forms of violence against women), as a result of its failure to act and its tolerance of the violence inflicted. Specifically, the Commission held that:", "“... tolerance by the State organs is not limited to this case; rather, it is a pattern. The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women.", "Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfil the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices. That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts.” [10]", "4. Comparative- law materials", "87. In eleven member States of the Council of Europe, namely in Albania, Austria, Bosnia and Herzegovina, Estonia, Greece, Italy, Poland, Portugal, San Marino, Spain and Switzerland, the authorities are required to continue criminal proceedings despite the victim ’ s withdrawal of complaint in cases of domestic violence.", "88. In twenty - seven member States, namely in Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, England and Wales, Finland, “ the former Yugoslav Republic of Macedonia ”, France, Georgia, Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Moldova, the Netherlands, the Russian Federation, Serbia, Slovakia, Sweden, Turkey and Ukraine, the authorities have a margin of discretion in deciding whether to pursue criminal proceedings against perpetrators of domestic violence. A significant number of legal systems make a distinction between crimes which are privately prosecutable (and for which the victim ’ s complaint is a prerequisite) and those which are publicly prosecutable (usually more serious offences for which prosecution is considered to be in the public interest).", "89. It appears from the legislation and practice of the above-mentioned twenty - seven countries that the decision on whether to proceed where the victim withdraws his/her complaint lies within the discretion of the prosecuting authorities, which primarily take into account the public interest in continuing criminal proceedings. In some jurisdictions, such as England and Wales, in deciding whether to pursue criminal proceedings against the perpetrators of domestic violence the prosecuting authorities (Crown Prosecution Service) are required to consider certain factors, including: the seriousness of the offence; whether the victim ’ s injuries are physical or psychological; if the defendant used a weapon; if the defendant has made any threats since the attack; if the defendant planned the attack; the effect (including psychological) on any children living in the household; the chances of the defendant offending again; the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; the current state of the victim ’ s relationship with the defendant; the effect on that relationship of continuing with the prosecution against the victim ’ s wishes; the history of the relationship, particularly if there was any other violence in the past; and the defendant ’ s criminal history, particularly any previous violence. Direct reference is made to the need to strike a balance between the victim ’ s and any children ’ s Article 2 and Article 8 rights in deciding on a course of action.", "90. Romania seems to be the only State which bases the continuance of criminal proceedings entirely, and in all circumstances, on the wishes/complaints of the victim.", "C. Reports concerning domestic violence and the situation of women in Turkey", "1. The opinion of the Purple Roof Women ’ s Shelter Foundation (Mor Çatı Kadın Sığınağı Vakfı – “the Mor Çatı Foundation ” ) on the implementation of Law no. 4320, dated 7 July 2007", "91. According to this report, Law no. 4320 (see paragraph 70 above) is not yet being fully implemented. In recent years there has been an increase in “protection orders” or injunctions issued by family courts. However, some courts, in response to applications made to them by women in mortal danger, are still setting hearings two or even three months ahead. Under these circumstances, judges and prosecutors treat an action under Law no. 4320 as if it were a form of divorce action, whereas the point of the Law is to take urgent action on behalf of women who are seeking to protect their own lives. Once the injunction has been issued, women are confronted with a number of problems with its implementation.", "92. In the two years before the report was released approximately 900 women applied to the Mor Çatı Foundation and made great efforts to use Law no. 4320, but of this number only 120 succeeded. The Mor Çatı Foundation has identified serious problems with the implementation of Law no. 4320. In particular, it was observed that domestic violence is still treated with tolerance at police stations, and that some police officers try to act as arbitrators, or take the side of the male, or suggest that the woman drop her complaint. There are also serious problems in serving the injunction issued by a court under Law no. 4320 on the husband. In the case of a number of women wishing to work with the Mor Çatı Foundation, injunctions were not implemented because their husbands were police officers or had friendly relations with officers at the police station in question.", "93. Furthermore, there are unreasonable delays in issuing injunctions by the courts. This results from the attitude of the courts in treating domestic violence complaints as a form of divorce action. It is considered that behind such delays lies a suspicion that women might be making such applications when they have not suffered violence. The allegations that women abuse Law no. 4320 are not correct. Since the economic burden of the home lies almost 100% with men, it would be impossible for women to request implementation of Law no. 4320 unless they were confronted with mortal danger. Finally, the injunctions at issue are generally narrow in scope or are not extended by the courts.", "2. Research report prepared by the Women ’ s Rights Information and Implementation Centre of the Diyarbakır Bar Association (KA ‑ MER) on the Implementation of Law no. 4320, dated 25 November 2005", "94. According to this report, a culture of violence has developed in Turkey and violence is tolerated in many areas of life. A survey of legal actions at a magistrate ’ s court dealing with civil matters ( sulh hukuk mahkemesi ) and three civil courts ( asliye hukuk mahkemesi ) in Diyarbakır identified 183 actions brought under Law no. 4320 from the date on which the Law entered into force in 1998 until September 2005. In 104 of these cases, the court ordered various measures, while in the remaining 79 actions the court held that there were no grounds for making an order, or dismissed the action, or ruled that it lacked jurisdiction.", "95. Despite the importance of the problem of domestic violence, very few applications have been made under the said Law, because either the public is not generally aware of it or the level of confidence in the security forces is very low in the region. The most important problems were caused by the delay in issuing injunctions and the authorities ’ failure to monitor the implementation of injunctions.", "96. Moreover, the negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this Law. Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend to regard the problem as a private family matter into which the police are reluctant to interfere.", "97. This report makes recommendations to improve the implementation of Law no. 4320 and to enhance the protection of victims of domestic violence.", "3. Diyarbakır KA-MER Emergency Helpline statistics for the period 1 August 1997 to 30 June 2007", "98. This statistical information report was prepared following interviews conducted with 2,484 women. It appears that all of the complainants were subjected to psychological violence and approximately 60% were subjected to physical violence. The highest number of victims is in the 20-30 age group (43%). 57% of these women are married. The majority of victims are illiterate or of a low level of education. 78% of the women are of Kurdish origin. 91% of the victims who called the emergency helpline are from Diyarbakır. 85% of the victims have no independent source of income.", "4. Amnesty International ’ s 2004 report entitled “Turkey: women confronting family violence”", "99. According to this report, statistical information about the extent of violence against women in Turkey is limited and unreliable. Nonetheless, it appears that a culture of domestic violence has placed women in double jeopardy, both as victims of violence and because they are denied effective access to justice. Women from vulnerable groups, such as those from low-income families or who are fleeing conflict or natural disasters, are particularly at risk. In this connection, it was found that crimes against women in south - east Turkey have gone largely unpunished.", "100. It was noted that women ’ s rights defenders struggle to combat community attitudes, which are tolerant of violence against women and are frequently shared by judges, senior government officials and opinion leaders in society. Even after legislative reforms have removed the legal authorisation for discriminatory treatment, attitudes that pressure women to conform to certain codes of behaviour restrict women ’ s life choices.", "101. The report states that at every level of the criminal justice system the authorities fail to respond promptly or rigorously to women ’ s complaints of rape, sexual assault or other violence within the family. The police are reluctant to prevent and investigate family violence, including the violent deaths of women. Prosecutors refuse to open investigations into cases involving domestic violence or to order protective measures for women at risk from their family or community. The police and courts do not ensure that men, who are served with court orders, including protection orders, comply with them. They accord them undue leniency in sentencing, on the grounds of “provocation” by their victim and on the flimsiest of evidence.", "102. There are many barriers facing women who need access to justice and protection from violence. Police officers often believe that their duty is to encourage women to return home and “make peace” and fail to investigate the women ’ s complaints. Many women, particularly in rural areas, are unable to make formal complaints, because leaving their neighbourhoods subjects them to intense scrutiny, criticism and, in some cases, violence.", "103. Furthermore, although some courts appear to have begun implementing the reforms, the discretion accorded to the courts continues to accord the perpetrators of domestic violence unwarranted leniency. Sentences in such cases are still frequently reduced at the discretion of the judges, who continue to take into account the “severe provocation” of the offence to custom, tradition or honour.", "104. Finally, this report makes a number of recommendations to the Turkish government and to community and religious authorities with a view to addressing the problem of domestic violence.", "5. Report on Honour Crimes, prepared by the Diyarbakır Bar Association ’ s Justice For All Project and the Women ’ s Rights Information and Implementation Centre", "105. This report was prepared in order to look into the judicial dimensions of the phenomenon of so-called “honour crimes”. A survey was carried out of judgments in cases before the Diyarbakır assize courts and children ’ s courts. The purpose of the survey was to identify the proportion of such unlawful killings referred to the courts, the judiciary ’ s attitude to them, the defendants ’ lines of defence in these cases, the role of social structure ( that is, family councils and custom) and the reasons for the murders. To that end, cases in the Diyarbakır assize courts and children ’ s courts between 1999 and 2005 were examined. In these seven years, 59 cases were identified in which a judgment was given. In these cases, there were 71 victims/persons killed, and 81 people were tried as defendants.", "106. According to the researchers, in cases where the victim/person killed was male, it was observed that defendants claimed, in their defence, that the victim/person killed had raped, sexually assaulted, or abducted a relative of the defendant, or had attempted to draw a relative of the defendant into prostitution. In cases where the victim/person killed was a woman, defendants alleged, in their defence, that the victim/person killed had been talking to other men, had taken up prostitution, or had committed adultery. In 46 of the judgments, mitigating provisions concerning unjustified provocation were applied. In cases of 61 convictions, the provisions of Article 59 of the Turkish Criminal Code concerning discretionary mitigation were applied.", "THE LAW", "I. ADMISSIBILITY", "107. The Government contested the admissibility of the application on two grounds.", "A. Failure to observe the six-month rule under Article 35 § 1 of the Convention", "108. The Government submitted that the applicant had failed to observe the six-month time-limit in respect of the events which had taken place before 2001. They argued that the events which had taken place between 1995 and 2001 should be considered as out of time. If the applicant was not satisfied with the decisions given by the domestic authorities subsequent to the events which had taken place during the above- mentioned period, she should have submitted her application to the Commission or, following the entry into force of Protocol No. 11, to the Court within six months of each decision.", "109. The applicant claimed that she had lodged her application within six months of the impugned events. In her opinion the events should be taken as a whole and should not be examined separately.", "110. The Court reiterates that the purpose of the six-month rule under Article 35 § 1 of the Convention is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (see Kenar v. Turkey (dec.), no. 67215/01, 1 December 2005). According to its well-established case-law, where no domestic remedy is available the six-month period runs from the date of the act complained of.", "111. In that regard, the Court notes that from 10 April 1995 the applicant and her mother had been victims of multiple assaults and threats by H.O. against their physical integrity. These acts of violence had resulted in the death of the applicant ’ s mother and caused the applicant intense suffering and anguish. While there were intervals between the impugned events, the Court considers that the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events.", "112. This being so, the Court notes that the applicant has submitted her application within six months of the killing of her mother by H.O., which event may be considered as the time that she became aware of the ineffectiveness of the remedies in domestic law, as a result of the authorities ’ failure to stop H.O. committing further violence. Given that these circumstances do not disclose any indication of a delay on the part of the applicant in introducing her application once it became apparent that no redress for her complaints was forthcoming, the Court considers that the relevant date for the purposes of the six-month time-limit should not be considered to be a date earlier than at least 13 March 2002 (see paragraph 54 above). In any event, the applicant ’ s former husband had continued to issue threats against her life and well-being and, therefore, it cannot be said that the said pattern of violence has come to an end (see paragraphs 59-69 above).", "113. In the specific context of this case, it follows that the applicant ’ s complaints have been introduced within the six-month time-limit required by Article 35 § 1 of the Convention. The Court therefore dismisses the Government ’ s preliminary objection in this regard.", "B. Failure to exhaust domestic remedies", "114. The Government further contended that the applicant had failed to exhaust domestic remedies since she and her mother had withdrawn their complaints many times and had caused the termination of the criminal proceedings against the applicant. They maintained that the applicant had also not availed herself of the protection afforded by Law no. 4320 and that she had prevented the public prosecutor from applying to the family court, in that she had withdrawn her complaints. They submitted further that the applicant could have availed herself of the administrative and civil law remedies whose effectiveness had been recognised by the Court in previous cases (citing Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII). Finally, relying on the Court ’ s judgments in Ahmet Sadık v. Greece (15 November 1996, § 34, Reports 1996-V) and Cardot v. France (19 March 1991, § 30, Series A no. 200), the Government claimed that the applicant had failed to raise, even in substance, her complaints of discrimination before the national authorities and that, therefore, these complaints should be declared inadmissible.", "115. The applicant claimed that she had exhausted all available remedies in domestic law. She argued that the domestic remedies had proven to be ineffective given the failure of the authorities to protect her mother ’ s life and to prevent her husband from inflicting ill-treatment on her and her mother. As regards the Government ’ s reliance on Law no. 4320, to the effect that she had not availed herself of the remedies therein, the applicant noted that the said law had come into force on 14 January 1998, whereas a significant part of the events at issue had taken place prior to that date. Prior to the entry into force of Law no. 4320, there was no mechanism for protection against domestic violence. In any event, despite her numerous criminal complaints to the Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of the applicant and her mother.", "116. The Court observes that the main question with regard to the question of exhaustion of domestic remedies is whether the applicants have failed to make use of available remedies in domestic law, particularly those provided by Law no. 4320, and whether the domestic authorities were required to pursue the criminal proceedings against the applicant ’ s husband despite the withdrawal of complaints by the victims. These questions are inextricably linked to the question of the effectiveness of the domestic remedies in providing sufficient safeguards for the applicant and her mother against domestic violence. Accordingly, the Court joins these questions to the merits and will examine them under Articles 2, 3 and 14 of the Convention (see, among other authorities, Şemsi Önen v. Turkey, no. 22876/93, § 77, 14 May 2002).", "117. In view of the above, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "118. The applicant complained that the authorities had failed to safeguard the right to life of her mother, who had been killed by her husband, in violation of Article 2 § 1 of the Convention, the relevant part of which provides:", "“Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...”", "A. The parties ’ submissions", "1. The applicant", "119. The applicant asserted at the outset that domestic violence was tolerated by the authorities and society and that the perpetrators of domestic violence enjoyed impunity. In this connection, she pointed out that, despite their numerous criminal complaints to the Diyarbakır Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of herself and her mother. Conversely, on a number of occasions, the authorities had tried to persuade the applicant and her mother to abandon their complaints against H.O. The domestic authorities had remained totally passive in the face of death threats issued by H.O. and had left her and her mother to the mercy of their aggressor.", "120. The applicant pointed out that, by a petition dated 27 February 2002, her mother had applied to the Chief Public Prosecutor ’ s Office and had informed the authorities of the death threats issued by H.O. However, the public prosecutor had done nothing to protect the life of the deceased. In the applicant ’ s opinion, the fact that the authorities had not taken her mother ’ s complaint seriously was a clear indication that domestic violence was tolerated by society and the national authorities.", "121. The applicant also claimed that, although H.O. had been convicted of murder, the punishment imposed on him was not a deterrent and was considerably less than the normal sentence imposed for murder. The imposition of a lenient sentence had resulted from the fact that, in his defence submissions before the Assize Court, the accused had claimed to have killed her mother in order to protect his honour. It was the general practice of the criminal courts in Turkey to mitigate sentences in cases of “honour crimes”. In cases concerning “honour crimes”, the criminal courts imposed a very lenient punishment or no punishment at all on the perpetrators of such crimes.", "2. The Government", "122. The Government stressed that the local authorities had provided immediate and tangible follow-up to the complaints lodged by the applicant and her mother. In this connection, subsequent to the filing of their complaints, the authorities had registered the complaints, conducted medical examinations, heard witnesses, conducted a survey of the scenes of the incidents and transmitted the complaints to the competent legal authorities. When necessary and depending on the gravity of the incident, the aggressor had been remanded in custody and had been convicted by the criminal courts. These proceedings had been carried out within the shortest time possible. The authorities had displayed diligence and were sensitive to the complaints, and no negligence had been shown.", "123. However, by withdrawing their complaints, the applicant and her mother had prevented the authorities from pursuing criminal proceedings against H.O. and had thus contributed to the impunity enjoyed by the aggressor. In this regard, it did not appear from the case file that the applicant and her mother had withdrawn their complaints as a result of any pressure exerted on them either by H.O. or the public prosecutor in charge of the investigation. The pursuit of criminal proceedings against the aggressor was dependent on the complaints lodged or pursued by the applicant, since the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more, within the meaning of Articles 456 § 4, 457 and 460 of the Criminal Code. Furthermore, in most cases the criminal courts had not convicted H.O. because the evidence against him was insufficient. Accordingly, the authorities could not be expected to separate the applicant and her husband and convict the latter while they were living together as a family, as this would amount to a breach of their rights under Article 8 of the Convention.", "124. As regards the petition filed by the applicant ’ s mother on 27 February 2002, the Government claimed that the content of this petition was no different to the previous ones and was of a general nature. There was no tangible fact or specific indication that her life was indeed in danger. In the petition the mother had failed to request any protection at all but she had merely requested a speedy examination of her complaint and the punishment of the applicant ’ s husband. Nonetheless, subsequent to the receipt of the petition dated 27 February 2002, the authorities had registered the complaint and had held a hearing on 27 May 2002, which had been followed by other hearings. Finally, following the killing of the applicant ’ s mother by H.O., the latter had been convicted and had received a heavy punishment.", "3. Interights, the third-party intervener", "125. Referring to international practice, Interights submitted that where the national authorities failed to act with due diligence to prevent violence against women, including violence by private actors, or to investigate, prosecute and punish such violence, the State might be responsible for such acts. The jus cogens nature of the right to freedom from torture and the right to life required exemplary diligence on the part of the State with respect to investigation and prosecution of these acts.", "126. In the context of domestic violence, victims were often intimidated or threatened into either not reporting the crime or withdrawing complaints. However, the responsibility to ensure accountability and guard against impunity lay with the State, not with the victim. International practice recognised that a broad range of interested persons, not just the victim, should be able to report and initiate an investigation into domestic violence. Further, international practice increasingly suggested that where there was sufficient evidence and it was considered in the public interest, prosecution of perpetrators of domestic violence should continue even when a victim withdrew her complaint. These developments indicated a trend away from requiring victim participation towards placing the responsibility for effective prosecution squarely on the State.", "127. While a decision not to prosecute in a particular case would not necessarily be in breach of due diligence obligations, a law or practice which automatically paralysed a domestic violence investigation or prosecution where a victim withdrew her complaint would be. In respect of these obligations and with reference to the Fatma Yıldırım v. Austria decision of the CEDAW Committee (cited in the relevant international materials section above ), it was submitted that the State had not only to ensure an appropriate legislative framework, but also to ensure effective implementation and enforcement practice.", "B. The Court ’ s assessment", "1. Alleged failure to protect the applicant ’ s mother ’ s life", "( a) Relevant principles", "128. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007 ).", "129. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention (see Osman, cited above, § 116).", "130. In the opinion of the Court, where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Furthermore, having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case ( ibid.).", "( b) Application of the above principles to the present case", "( i) Scope of the case", "131. On the above understanding, the Court will ascertain whether the national authorities have fulfilled their positive obligation to take preventive operational measures to protect the applicant ’ s mother ’ s right to life. In this connection, it must establish whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of the applicant ’ s mother from criminal acts by H.O. As it appears from the parties ’ submissions, a crucial question in the instant case is whether the local authorities displayed due diligence to prevent violence against the applicant and her mother, in particular by pursuing criminal or other appropriate preventive measures against H.O. despite the withdrawal of complaints by the victims.", "132. However, before embarking upon these issues, the Court must stress that the issue of domestic violence, which can take various forms ranging from physical to psychological violence or verbal abuse, cannot be confined to the circumstances of the present case. It is a general problem which concerns all member States and which does not always surface since it often takes place within personal relationships or closed circuits and it is not only women who are affected. The Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often casualties of the phenomenon, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case", "( ii) Whether the local authorities could have foreseen a lethal attack from H.O.", "133. Turning to the circumstances of the case, the Court observes that the applicant and her husband, H.O., had a problematic relationship from the very beginning. As a result of disagreements, H.O. resorted to violence against the applicant and the applicant ’ s mother therefore intervened in their relationship in order to protect her daughter. She thus became a target for H.O., who blamed her for being the cause of their problems (see paragraph 28 above). In this connection, the Court considers it important to highlight some events and the authorities ’ reaction.", "(i) On 10 April 1995 H.O. and A.O. beat up the applicant and her mother, causing severe physical injuries, and threatened to kill them. Although the applicant and her mother initially filed a criminal complaint about this event, the criminal proceedings against H.O. and A.O. were terminated because the victims withdrew their complaints (see paragraphs 9-11 above).", "(ii) On 11 April 1996 H.O. again beat the applicant, causing life-threatening injuries. H.O. was remanded in custody and a criminal prosecution was commenced against him for aggravated bodily harm. However, following the release of H.O., the applicant withdrew her complaint and the charges against H.O. were dropped (see paragraphs 13-19 above).", "(iii) On 5 February 1998 H.O. assaulted the applicant and her mother using a knife. All three were severely injured and the public prosecutor decided not to prosecute anyone on the ground that there was insufficient evidence (see paragraphs 20 and 21 above).", "(iv) On 4 March 1998 H.O. ran his car into the applicant and her mother. Both victims suffered severe injuries, and the medical reports indicated that the applicant was unfit for work for seven days and that her mother ’ s injuries were life-threatening. Subsequent to this incident, the victims asked the Chief Public Prosecutor ’ s Office to take protective measures in view of the death threats issued by H.O., and the applicant initiated divorce proceedings. The police investigation into the victims ’ allegations of death threats concluded that both parties had threatened each other and that the applicant ’ s mother had made such allegations in order to separate her daughter from H.O. for the purpose of revenge, and had also “wasted” the security forces ’ time. Criminal proceedings were instituted against H.O. for issuing death threats and attempted murder, but following H.O. ’ s release from custody (see paragraph 31 above) the applicant and her mother again withdrew their complaints. This time, although the prosecuting authorities dropped the charges against H.O. for issuing death threats and hitting the applicant, the Diyarbakır Assize Court convicted him for causing injuries to the mother and sentenced him to three months ’ imprisonment, which was later commuted to a fine (see paragraphs 23-36 above).", "(v) On 29 October 2001 H.O. stabbed the applicant seven times following her visit to her mother. H.O. surrendered to the police claiming that he had attacked his wife in the course of a fight caused by his mother-in-law ’ s interference with their marriage. After taking H.O. ’ s statements the police officers released him. However, the applicant ’ s mother applied to the Chief Public Prosecutor ’ s Office seeking the detention of H.O., and also claimed that she and her daughter had had to withdraw their complaints in the past because of death threats and pressure by H.O. As a result, H.O. was convicted of knife assault and sentenced to a fine (see paragraphs 37-44 above).", "(vi) On 14 November 2001 H.O. threatened the applicant but the prosecuting authorities did not press charges for lack of concrete evidence (see paragraphs 45 and 46 above).", "(vii) On 19 November 2001 the applicant ’ s mother filed a petition with the local public prosecutor ’ s office, complaining about the ongoing death threats and harassment by H.O., who had been carrying weapons. Again, the police took statements from H.O. and released him, but the public prosecutor pressed charges against him for making death threats (see paragraphs 47 ‑ 49 above ).", "(viii) Later, on 27 February 2002, the applicant ’ s mother applied to the public prosecutor ’ s office, informing him that H.O. ’ s threats had intensified and that their lives were in immediate danger. She therefore asked the police to take action against H.O. The police took statements from H.O. and the Diyarbakır Magistrate ’ s Court questioned him about the allegations only after the killing of the applicant ’ s mother. H.O. denied the allegations and claimed that he did not wish his wife to visit her mother, who was living an immoral life (see paragraphs 51-52 above).", "134. In view of the above events, it appears that there was an escalating violence against the applicant and her mother by H.O. The crimes committed by H.O. were sufficiently serious to warrant preventive measures and there was a continuing threat to the health and safety of the victims. When examining the history of the relationship, it was obvious that the perpetrator had a record of domestic violence and there was therefore a significant risk of further violence.", "135. Furthermore, the victims ’ situations were also known to the authorities and the mother had submitted a petition to the Diyarbakır Chief Public Prosecutor ’ s Office, stating that her life was in immediate danger and requesting the police to take action against H.O. However, the authorities ’ reaction to the applicant ’ s mother ’ s request was limited to taking statements from H.O. about the mother ’ s allegations. Approximately two weeks after this request, on 11 March 2002, he killed the applicant ’ s mother (see paragraph 54 above ).", "136. Having regard to the foregoing, the Court finds that the local authorities could have foreseen a lethal attack by H.O. While the Court cannot conclude with certainty that matters would have turned out differently and that the killing would not have occurred if the authorities had acted otherwise, it reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State (see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002 ). Therefore, the Court will next examine to what extent the authorities took measures to prevent the killing of the applicant ’ s mother.", "( iii) Whether the authorities displayed due diligence to prevent the killing of the applicant ’ s mother", "137. The Government claimed that each time the prosecuting authorities commenced criminal proceedings against H.O., they had to terminate those proceedings, in accordance with the domestic law, because the applicant and her mother withdrew their complaints. In their opinion, any further interference by the authorities would have amounted to a breach of the victims ’ Article 8 rights. The applicant explained that she and her mother had had to withdraw their complaints because of death threats and pressure exerted by H.O.", "138. The Court notes at the outset that there seems to be no general consensus among States Parties regarding the pursuance of the criminal prosecution against perpetrators of domestic violence when the victim withdraws her complaints (see paragraphs 87 and 88 above). Nevertheless, there appears to be an acknowledgement of the duty on the part of the authorities to strike a balance between a victim ’ s Article 2, Article 3 or Article 8 rights in deciding on a course of action. In this connection, having examined the practices in the member States (see paragraph 89 above), the Court observes that there are certain factors that can be taken into account in deciding to pursue the prosecution:", "– the seriousness of the offence;", "– whether the victim ’ s injuries are physical or psychological;", "– if the defendant used a weapon;", "– if the defendant has made any threats since the attack;", "– if the defendant planned the attack;", "– the effect (including psychological) on any children living in the household;", "– the chances of the defendant offending again;", "– the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved;", "– the current state of the victim ’ s relationship with the defendant and the effect on that relationship of continuing with the prosecution against the victim ’ s wishes;", "– the history of the relationship, particularly if there had been any other violence in the past; and", "– the defendant ’ s criminal history, particularly any previous violence.", "139. It can be inferred from this practice that the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the public interest, even if victims withdraw their complaints.", "140. As regards the Government ’ s argument that any attempt by the authorities to separate the applicant and her husband would have amounted to a breach of their right to family life, and bearing in mind that under Turkish law there is no requirement to pursue the prosecution in cases where the victim withdraws her complaint and did not suffer injuries which renders her unfit for work for ten or more days, the Court will now examine whether the local authorities struck a proper balance between the victim ’ s Article 2 and Article 8 rights.", "141. In this connection, the Court notes that H.O. resorted to violence from the very beginning of his relationship with the applicant. On many instances both the applicant and her mother suffered physical injuries and were subjected to psychological pressure, given the anguish and fear. For some assaults H.O. used lethal weapons, such as a knife or a shotgun, and he constantly issued death threats against the applicant and her mother. Having regard to the circumstances of the killing of the applicant ’ s mother, it may also be stated that H.O. had planned the attack, since he had been carrying a knife and a gun and had been wandering around the victim ’ s house on occasions prior to the attack (see paragraphs 47 and 54 above).", "142. The applicant ’ s mother became a target as a result of her perceived involvement in the couple ’ s relationship, and the couple ’ s children can also be considered as victims on account of the psychological effects of the ongoing violence in the family home. As noted above, in the instant case, further violence was not only possible but even foreseeable, given the violent behaviour and criminal record of H.O., his continuing threat to the health and safety of the victims and the history of violence in the relationship (see paragraphs 10, 13, 23, 37, 45, 47 and 51 above).", "143. In the Court ’ s opinion, it does not appear that the local authorities sufficiently considered the above factors when repeatedly deciding to discontinue the criminal proceedings against H.O. Instead, they seem to have given exclusive weight to the need to refrain from interfering with what they perceived to be a “family matter” (see paragraph 123 above). Moreover, there is no indication that the authorities considered the motives behind the withdrawal of the complaints. This is despite the applicant ’ s mother ’ s indication to the Diyarbakır Public Prosecutor that she and her daughter had withdrawn their complaints because of the death threats issued and pressure exerted on them by H.O. (see paragraph 39 above). It is also striking that the victims withdrew their complaints when H.O. was at liberty or following his release from custody (see paragraphs 9-12, 17-19, 31 and 35 above).", "144. As regards the Government ’ s argument that any further interference by the national authorities would have amounted to a breach of the victims ’ rights under Article 8 of the Convention, the Court notes its ruling in a similar case of domestic violence (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 83, 12 June 2008), where it held that the authorities ’ view that no assistance was required as the dispute concerned a “private matter” was incompatible with their positive obligations to secure the enjoyment of the applicants ’ rights. Moreover, the Court reiterates that, in some instances, the national authorities ’ interference with the private or family life of the individuals might be necessary in order to protect the health and rights of others or to prevent commission of criminal acts (see K.A. and A.D. v. Belgium, nos. 42758/98 and 45558/99, § 81, 17 February 2005). The seriousness of the risk to the applicant ’ s mother rendered such intervention by the authorities necessary in the present case.", "145. However, the Court regrets to note that the criminal investigations in the instant case were strictly dependent on the pursuance of complaints by the applicant and her mother on account of the domestic - law provisions in force at the relevant time; namely Articles 456 § 4, 457 and 460 of the now defunct Criminal Code, which prevented the prosecuting authorities from pursuing the criminal investigations because the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more (see paragraph 70 above). It observes that the application of the above- mentioned provisions and the cumulative failure of the domestic authorities to pursue criminal proceedings against H.O. deprived the applicant ’ s mother of the protection of her life and safety. In other words, the legislative framework then in force, particularly the minimum ten days ’ sickness unfitness requirement, fell short of the requirements inherent in the State ’ s positive obligations to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for the victims. The Court thus considers that, bearing in mind the seriousness of the crimes committed by H.O. in the past, the prosecuting authorities should have been able to pursue the proceedings as a matter of public interest, regardless of the victims ’ withdrawal of complaints (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraphs 80-82 above).", "146. The legislative framework preventing effective protection for victims of domestic violence aside, the Court must also consider whether the local authorities displayed due diligence to protect the right to life of the applicant ’ s mother in other respects.", "147. In this connection, the Court notes that despite the deceased ’ s complaint that H.O. had been harassing her, invading her privacy by wandering around her property and carrying knives and guns (see paragraph 47 above), the police and prosecuting authorities failed either to place H.O. in detention or to take other appropriate action in respect of the allegation that he had a shotgun and had made violent threats with it (see Kontrová, cited above, § 53). While the Government argued that there was no tangible evidence that the applicant ’ s mother ’ s life was in imminent danger, the Court observes that it is not in fact apparent that the authorities assessed the threat posed by H.O. and concluded that his detention was a disproportionate step in the circumstances; rather the authorities failed to address the issues at all. In any event, the Court would underline that in domestic violence cases perpetrators ’ rights cannot supersede victims ’ human rights to life and to physical and mental integrity (see the Fatma Yıldırım v. Austria and A.T. v. Hungary decisions of the CEDAW Committee, both cited above, §§ 12.1.5 and 9.3 respectively).", "148. Furthermore, in the light of the State ’ s positive obligation to take preventive operational measures to protect an individual whose life is at risk, it might have been expected that the authorities, faced with a suspect known to have a criminal record of perpetrating violent attacks, would take special measures consonant with the gravity of the situation with a view to protecting the applicant ’ s mother. To that end, the local public prosecutor or the judge at the Diyarbakır Magistrate ’ s Court could have ordered on his/her initiative one or more of the protective measures enumerated under sections 1 and 2 of Law no. 4320 (see paragraph 70 above). They could also have issued an injunction with the effect of banning H.O. from contacting, communicating with or approaching the applicant ’ s mother or entering defined areas (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraph 82 above). On the contrary, in response to the applicant ’ s mother ’ s repeated requests for protection, the police and the Diyarbakır Magistrate ’ s Court merely took statements from H.O. and released him (see paragraphs 47-52 above). While the authorities remained passive for almost two weeks apart from taking statements, H.O. shot dead the applicant ’ s mother.", "149. In these circumstances, the Court concludes that the national authorities cannot be considered to have displayed due diligence. They therefore failed in their positive obligation to protect the right to life of the applicant ’ s mother within the meaning of Article 2 of the Convention.", "2. The effectiveness of the criminal investigation into the killing of the applicant ’ s mother", "150. The Court reiterates that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that an efficient and independent judicial system should be set in place by which the cause of a murder can be established and the guilty parties punished (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 -I ). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002-II ). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see Yaşa v. Turkey, 2 September 1998, §§ 102 ‑ 04, Reports 1998-VI, and Çakıcı v. Turkey [GC], no. 2 3657/94, §§ 80-87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395, ECHR 2001-VII).", "151. The Court notes that a comprehensive investigation has indeed been carried out by the authorities into the circumstances surrounding the killing of the applicant ’ s mother. However, although H.O. was tried and convicted of murder and illegal possession of a firearm by the Diyarbakır Assize Court, the proceedings are still pending before the Court of Cassation (see paragraphs 57 and 58 above). Accordingly, the criminal proceedings in question, which have already lasted more than six years, cannot be described as a prompt response by the authorities in investigating an intentional killing where the perpetrator had already confessed to the crime.", "3. Conclusion", "152. In the light of the foregoing, the Court considers that the above-mentioned failures rendered recourse to criminal and civil remedies equally ineffective in the circumstances. It accordingly dismisses the Government ’ s preliminary objection (see paragraph 114 above) based on non-exhaustion of these remedies.", "153. Moreover, the Court concludes that the criminal - law system, as applied in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of the unlawful acts committed by H.O. The obstacles resulting from the legislation and failure to use the means available undermined the deterrent effect of the judicial system in place and the role it was required to play in preventing a violation of the applicant ’ s mother ’ s right to life as enshrined in Article 2 of the Convention. The Court reiterates in this connection that, once the situation has been brought to their attention, the national authorities cannot rely on the victim ’ s attitude for their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim (see Osman, cited above, § 116). There has therefore been a violation of Article 2 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "154. The applicant complained that she had been subjected to violence, injury and death threats several times but that the authorities were negligent towards her situation, which caused her pain and fear in violation of Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties ’ submissions", "155. The applicant alleged that the injuries and anguish she had suffered as a result of the violence inflicted upon her by her husband had amounted to torture within the meaning of Article 3 of the Convention. Despite the ongoing violence and her repeated requests for help, however, the authorities had failed to protect her from her husband. It was as though the violence had been inflicted under State supervision. The insensitivity and tolerance shown by the authorities in the face of domestic violence had made her feel debased, hopeless and vulnerable.", "156. The Government argued that the applicant ’ s withdrawal of complaints and her failure to cooperate with the authorities had prevented the prosecuting authorities from pursuing the criminal proceedings against her husband. They further claimed that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women with the cooperation of public institutions and non-governmental organisations (NGOs). In this respect, the applicant could have petitioned the Directorate of Social Services and Child Protection Agency for admission to one of the guest houses. The addresses of these guest houses were secret and they were protected by the authorities.", "157. Interights maintained that States were required to take reasonable steps to act immediately to stop ill-treatment, whether by public or private actors, of which they have known or ought to have known. Given the opaque nature of domestic violence and the particular vulnerability of women who are too often frightened to report such violence, it is submitted that a heightened degree of vigilance is required of the State.", "B. The Court ’ s assessment", "1. Applicable principles", "158. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello - Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C ).", "159. As regards the question whether the State could be held responsible, under Article 3, for the ill-treatment inflicted on persons by non-state actors, the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997 ‑ III ). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI ).", "2. Application of the above principles to the case", "160. The Court considers that the applicant may be considered to fall within the group of “vulnerable individuals” entitled to State protection (see A. v. the United Kingdom, cited above, § 22). In this connection, it notes the violence suffered by the applicant in the past, the threats issued by H.O. following his release from prison and her fear of further violence as well as her social background, namely the vulnerable situation of women in south-east Turkey.", "161. The Court observes also that the violence suffered by the applicant, in the form of physical injuries and psychological pressure, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.", "162. Therefore, the Court must next determine whether the national authorities have taken all reasonable measures to prevent the recurrence of violent attacks against the applicant ’ s physical integrity.", "163. In carrying out this scrutiny, and bearing in mind that the Court provides final authoritative interpretation of the rights and freedoms defined in Section I of the Convention, the Court will consider whether the national authorities have sufficiently taken into account the principles flowing from its judgments on similar issues, even when they concern other States.", "164. Furthermore, in interpreting the provisions of the Convention and the scope of the State ’ s obligations in specific cases (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85 and 86, ECHR 2008) the Court will also look for any consensus and common values emerging from the practices of European States and specialised international instruments, such as the CEDAW, as well as giving heed to the evolution of norms and principles in international law through other developments such as the Belém do Pará Convention, which specifically sets out States ’ duties relating to the eradication of gender-based violence.", "165. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S., cited above, § 82). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007).", "166. Turning to its examination of the facts, the Court notes that the local authorities, namely the police and public prosecutors, did not remain totally passive. After each incident involving violence, the applicant was taken for medical examination and criminal proceedings were instituted against her husband. The police and prosecuting authorities questioned H.O. in relation to his criminal acts, placed him in detention on two occasions, indicted him for issuing death threats and inflicting actual bodily harm and, subsequent to his conviction for stabbing the applicant seven times, sentenced him to pay a fine (see paragraphs 13, 24 and 44 above).", "167. However, none of these measures were sufficient to stop H.O. from perpetrating further violence. In this respect, the Government blamed the applicant for withdrawing her complaints and failing to cooperate with the authorities, which prevented the latter from continuing the criminal proceedings against H.O., pursuant to the domestic law provisions requiring the active involvement of the victim (see paragraph 70 above).", "168. The Court reiterates its opinion in respect of the complaint under Article 2 of the Convention, namely that the legislative framework should have enabled the prosecuting authorities to pursue the criminal investigations against H.O. despite the withdrawal of complaints by the applicant on the basis that the violence committed by H.O. was sufficiently serious to warrant prosecution and that there was a constant threat to the applicant ’ s physical integrity (see paragraphs 137-48 above).", "169. However, it cannot be said that the local authorities displayed the required diligence to prevent the recurrence of violent attacks against the applicant, since the applicant ’ s husband perpetrated them without hindrance and with impunity to the detriment of the rights recognised by the Convention (see, mutatis mutandis, Maria da Penha v. Brazil, Case 12.051, 16 April 2001, Report No. 54/01, Inter-Am. Ct. H.R., Annual Report 2000, OEA/Ser.L/V.II.111 Doc. 20 rev. (2000), §§ 42-44). By way of example, the Court notes that, following the first major incident (see paragraphs 9 and 10 above ), H.O. again beat the applicant severely, causing her injuries which were sufficient to endanger her life, but he was released pending trial “considering the nature of the offence and the fact that the applicant had regained full health”. The proceedings were ultimately discontinued because the applicant withdrew her complaints (see paragraphs 13 and 19 above). Again, although H.O. assaulted the applicant and her mother using a knife and caused them severe injuries, the prosecuting authorities terminated the proceedings without conducting any meaningful investigation (see paragraphs 20 and 21 above). Likewise, H.O. ran his car into the applicant and her mother, this time causing injuries to the former and life-threatening injuries to the latter. He spent only twenty-five days in prison and received a fine for inflicting serious injuries on the applicant ’ s mother (see paragraphs 23-36 above). Finally, the Court was particularly struck by the Diyarbakır Magistrate ’ s Court ’ s decision to impose merely a small fine, which could be paid by instalments, on H.O. as punishment for stabbing the applicant seven times (see paragraphs 37 and 44 above ).", "170. In the light of the foregoing, the Court considers that the response to the conduct of the applicant ’ s former husband was manifestly inadequate to the gravity of the offences in question (see, mutatis mutandis, Ali and Ayşe Duran v. Turkey, no. 42942/02, § 54, 8 April 2008). It therefore observes that the judicial decisions in this case reveal a lack of efficacy and a certain degree of tolerance, and had no noticeable preventive or deterrent effect on the conduct of H.O.", "171. As regards the Government ’ s assertion that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women, the Court notes that until 14 January 1998 – the date on which Law no. 4320 entered into force – Turkish law did not provide for specific administrative and policing measures designed to protect vulnerable persons against domestic violence. Even after that date, it does not appear that the domestic authorities effectively applied the measures and sanctions provided by that Law with a view to protecting the applicant against her husband. Taking into account the overall amount of violence perpetrated by H.O., the public prosecutor ’ s office ought to have applied on its own motion the measures contained in Law no. 4320, without expecting a specific request to be made by the applicant for the implementation of that Law.", "172. This being said, even assuming that the applicant had been admitted to one of the guest houses, as suggested by the Government, the Court notes that this would only be a temporary solution. Furthermore, it has not been suggested that there was any official arrangement to provide for the security of the victims staying in those houses.", "173. Finally, the Court notes with grave concern that the violence suffered by the applicant had not come to an end and that the authorities had continued to display inaction. In this connection, the Court points out that, immediately after his release from prison, H.O. again issued threats against the physical integrity of the applicant (see paragraph 59 above). Despite the applicant ’ s petition of 15 April 2008 requesting the prosecuting authorities to take measures for her protection, nothing was done until after the Court requested the Government to provide information about the measures that have been taken by their authorities. Following this request, on the instructions of the Ministry of Justice, the Diyarbakır Public Prosecutor questioned H.O. about the death threats issued by him and took statements from the applicant ’ s current boyfriend (see paragraphs 60-67 above).", "174. The applicant ’ s legal representative again informed the Court that the applicant ’ s life was in immediate danger, given the authorities ’ continuous failure to take sufficient measures to protect her client (see paragraph 68 above). It appears that following the transmission of this complaint and the Court ’ s request for an explanation in this respect, the local authorities have now put in place specific measures to ensure the protection of the applicant (see paragraph 69 above).", "175. Having regard to the overall ineffectiveness of the remedies suggested by the Government in respect of the complaints under Article 3, the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies.", "176. The Court concludes that there has been a violation of Article 3 of the Convention as a result of the State authorities ’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant ’ s personal integrity by her husband.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLES 2 AND 3", "177. The applicant complained under Article 14 of the Convention, read in conjunction with Articles 2 and 3, that she and her mother had been discriminated against on the basis of their gender.", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "1. The applicant", "178. The applicant alleged that the domestic law of the respondent State was discriminatory and insufficient to protect women, since a woman ’ s life was treated as inferior in the name of family unity. The former Civil Code, which was in force at the relevant time, contained numerous provisions distinguishing between men and women, such as the husband being the head of the family, his wishes taking precedence as the representative of the family union. The then Criminal Code also treated women as second-class citizens. A woman was viewed primarily as the property of society and of the male within the family. The most important indicator of this was that sexual offences were included in the section entitled “Crimes Relating to General Morality and Family Order”, whereas in fact sexual offences against women are direct attacks on a woman ’ s personal rights and freedoms. It was because of this perception that the Criminal Code imposed lighter sentences on persons who had murdered their wives for reasons of family honour. The fact that H.O. received a sentence of fifteen years is a consequence of that classification in the Criminal Code.", "179. Despite the reforms carried out by the Government in the areas of the Civil Code and Criminal Code in 2002 and 2004 respectively, domestic violence inflicted by men is still tolerated and impunity is granted to the aggressors by judicial and administrative bodies. The applicant and her mother had been victims of violations of Articles 2, 3, 6 and 13 of the Convention merely because of the fact that they were women. In this connection, the applicant drew the Court ’ s attention to the improbability of any men being a victim of similar violations.", "2. The Government", "180. The Government averred that there was no gender discrimination in the instant case, since the violence in question was mutual. Furthermore, it cannot be claimed that there was institutionalised discrimination resulting from the criminal or family laws or from judicial and administrative practice. Nor could it be argued that the domestic law contained any formal and explicit distinction between men and women. It had not been proven that the domestic authorities had not protected the right to life of the applicant because she was a woman.", "181. The Government further noted that subsequent to the reforms carried out in 2002 and 2004, namely revision of certain provisions of the Civil Code and the adoption of a new Criminal Code, and the entry into force of Law no. 4320, Turkish law provided for sufficient guarantees, meeting international standards, for the protection of women against domestic violence. The Government concluded that this complaint should be declared inadmissible for failure to exhaust domestic remedies or as being manifestly ill-founded since these allegations had never been brought to the attention of the domestic authorities and, in any event, were devoid of substance.", "3. Interights, the third-party intervener", "182. Interights submitted that the failure of the State to protect against domestic violence would be tantamount to failing in its obligation to provide equal protection of the law based on sex. They further noted that there was increasing recognition internationally – both within the United Nations and Inter-American systems – that violence against women was a form of unlawful discrimination.", "B. The Court ’ s assessment", "1. The relevant principles", "183. In its recent ruling in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, 13 November 2007, §§ 175-80, ECHR 2007 ‑ IV ), the Court laid down the following principles on the issue of discrimination:", "“175. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). ... The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see Hugh Jordan [ v. the United Kingdom, no. 24746/94 ], § 154 [, 4 May 2001 ], and Hoogendijk [ v. the Netherlands (dec.), no. 58461/00, 6 January 2005 ] ), and that discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami [ v. Malta, no. 17209/02 ], § 76 [, ECHR 2006- VIII] ).", "...", "177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III, and Timishev [ v. Russia, nos. 55762/00 and 55974/00], § 57 [, ECHR 2005-XII] ).", "178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others ( [ v. Bulgaria [GC], nos. 43577/98 and 43579/98 ], § 147 [, ECHR 2005-VII] ) that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.", "179. The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation – see Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003 ‑ V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002-IV). In Nachova and Others ( cited above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case, in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services.", "180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory ( see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation ( see Hoogendijk, cited above, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations.", "Thus, in Hoogendijk the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.”", "2. Application of the above principles to the facts of the present case", "( a ) The meaning of discrimination in the context of domestic violence", "184. The Court notes at the outset that when it considers the object and purpose of the Convention provisions, it also takes into account the international-law background to the legal question before it. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty (see Saadi v. the United Kingdom [GC], no. 13229/03, § 63, ECHR 2008, cited in Demir and Baykara, cited above, § 76).", "185. In this connection, when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case-law (see paragraph 183 above), the Court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women.", "186. In that context, the CEDAW defines discrimination against women under Article 1 as", "“... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”", "187. The CEDAW Committee has reiterated that violence against women, including domestic violence, is a form of discrimination against women (see paragraph 74 above).", "188. The United Nations Commission on Human Rights expressly recognised the nexus between gender-based violence and discrimination by stressing in resolution 2003/45 that “all forms of violence against women occur within the context of de jure and de facto discrimination against women and the lower status accorded to women in society and are exacerbated by the obstacles women often face in seeking remedies from the State.”", "189. Furthermore, the Belém do Pará Convention, which is so far the only regional multilateral human rights treaty to deal solely with violence against women, describes the right of every woman to be free from violence as encompassing, among others, the right to be free from all forms of discrimination.", "190. Finally, the Inter-American Commission also characterised violence against women as a form of discrimination owing to the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint (see Maria da Penha v. Brazil, cited above, § 80).", "191. It transpires from the above-mentioned rules and decisions that the State ’ s failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional.", "( b ) The approach to domestic violence in Turkey", "192. The Court observes that although the Turkish law then in force did not make explicit distinction between men and women in the enjoyment of rights and freedoms, it needed to be brought into line with international standards in respect of the status of women in a democratic and pluralistic society. Like the CEDAW Committee (see the Concluding Comments on the combined fourth and fifth periodic report of Turkey CEDAW/C/TUR/4 ‑ 5 and Corr.1, 15 February 2005, §§ 12-21), the Court welcomes the reforms carried out by the Government, particularly the adoption of Law no. 4320 which provides for specific measures for protection against domestic violence. It thus appears that the alleged discrimination at issue was not based on the legislation per se but rather resulted from the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence and judicial passivity in providing effective protection to victims. The Court notes that the Turkish Government have already recognised these difficulties in practice when discussing the issue before the CEDAW Committee ( ibid. ).", "193. In that regard, the Court notes that the applicant produced reports and statistics prepared by two leading NGOs, the Diyarbakır Bar Association and Amnesty International, with a view to demonstrating discrimination against women (see paragraphs 94-97 and 99-104 above). Bearing in mind that the findings and conclusions reached in these reports have not been challenged by the Government at any stage of the proceedings, the Court will consider them together with its own findings in the instant case (see Hoogendijk v. the Netherlands (dec.), no. 54861/00, 6 January 2005, and Zarb Adami v. Malta, no. 17209/02, §§ 77-78, ECHR 2006-VIII ).", "194. Having examined these reports, the Court finds that the highest number of reported victims of domestic violence is in Diyarbakır, where the applicant lived at the relevant time, and that the victims were all women who suffered mostly physical violence. The great majority of these women were of Kurdish origin, illiterate or of a low level of education and generally without any independent source of income (see paragraph 98 above).", "195. Furthermore, there appear to be serious problems in the implementation of Law no. 4320, which was relied on by the Government as one of the remedies for women facing domestic violence. The research conducted by the above- mentioned organisations indicates that when victims report domestic violence to police stations, police officers do not investigate their complaints but seek to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers consider the problem as a “family matter with which they cannot interfere” (see paragraphs 92, 96 and 102 above).", "196. It also transpires from these reports that there are unreasonable delays in issuing injunctions by the courts, under Law no. 4320, because the courts treat them as a form of divorce action and not as an urgent action. Delays are also frequent when it comes to serving injunctions on the aggressors, given the negative attitude of the police officers (see paragraphs 91-93, 95 and 101 above). Moreover, the perpetrators of domestic violence do not seem to receive dissuasive punishments, because the courts mitigate sentences on the grounds of custom, tradition or honour (see paragraphs 103 and 106 above).", "197. As a result of these problems, the above- mentioned reports suggest that domestic violence is tolerated by the authorities and that the remedies indicated by the Government do not function effectively. Similar findings and concerns were expressed by the CEDAW Committee when it noted “the persistence of violence against women, including domestic violence, in Turkey ” and called upon the respondent State to intensify its efforts to prevent and combat violence against women. It further underlined the need to fully implement and carefully monitor the effectiveness of Law no. 4320 on the protection of the family, and of related policies in order to prevent violence against women, to provide protection and support services to the victims, and punish and rehabilitate offenders (see the Concluding Comments, § 28).", "198. In the light of the foregoing, the Court considers that the applicant has been able to show, supported by unchallenged statistical information, the existence of a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence.", "( c ) Whether the applicant and her mother have been discriminated against on account of the authorities ’ failure to provide equal protection of law", "199. The Court has established that the criminal ‑ law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of unlawful acts by H.O. against the personal integrity of the applicant and her mother and thus violated their rights under Articles 2 and 3 of the Convention.", "200. Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence (see, in particular, section 9 of the CEDAW Committee ’ s General Recommendation No. 19, cited at paragraph 74 above).", "201. Taking into account the ineffectiveness of domestic remedies in providing equal protection of law to the applicant and her mother in the enjoyment of their rights guaranteed by Articles 2 and 3 of the Convention, the Court holds that there existed special circumstances which absolved the applicant from her obligation to exhaust domestic remedies. It therefore dismisses the Government ’ s objection on non-exhaustion in respect of the complaint under Article 14 of the Convention.", "202. In view of the above, the Court concludes that there has been a violation of Article 14 of the Convention, read in conjunction with Articles 2 and 3, in the instant case.", "V. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION", "203. Relying on Articles 6 and 13 of the Convention, the applicant complained that the criminal proceedings brought against H.O. were ineffective and had failed to provide sufficient protection for her and her mother.", "204. The Government contested that argument.", "205. Having regard to the violations found under Articles 2, 3 and 14 of the Convention (see paragraphs 153, 17 6 and 202 above), the Court does not find it necessary to examine the same facts also in the context of Articles 6 and 13.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "206. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "207. The applicant claimed 70,000 Turkish liras (TRL) (approximately 35,000 euros (EUR)) in respect of pecuniary damage resulting from the death of her mother and TRL 250,000 (approximately EUR 125,000) for non ‑ pecuniary damage. She explained that subsequent to the killing of her mother she had been deprived of any economic support from her. The killing of her mother and ongoing violence perpetrated by her former husband had caused her stress and anguish, as well as irreparable damage to her psychological well-being and self-esteem.", "208. The Government submitted that the amounts claimed were not justified in the circumstances of the case. They claimed, in the alternative, that the amounts were excessive and that any award to be made under this head should not lead to unjust enrichment.", "209. As regards the applicant ’ s claim for pecuniary damage, the Court notes that while the applicant has demonstrated that on a number of occasions she had sought shelter at her mother ’ s home, it has not been proven that she was in any way financially dependent on her. However, this does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention (see Aksoy v. Turkey, 18 December 1996, § 113, Reports 1996-VI, where the pecuniary claims made by the applicant prior to his death in respect of loss of earnings and medical expenses arising out of detention and torture were taken into account by the Court in making an award to the applicant ’ s father, who had continued the application). In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant ’ s mother. The Court is not convinced that the applicant ’ s mother incurred any losses before her death. Thus, the Court does not find it appropriate in the circumstances of this case to make any award to the applicant in respect of pecuniary damage.", "210. On the other hand, as regards the non-pecuniary damage, the Court notes that the applicant has undoubtedly suffered anguish and distress on account of the killing of her mother and the authorities ’ failure to undertake sufficient measures to prevent the domestic violence perpetrated by her husband and to give him deterrent punishment. Ruling on an equitable basis, the Court awards the applicant EUR 30,000 in respect of the damage sustained by her as a result of violations of Articles 2, 3 and 14 of the Convention.", "B. Costs and expenses", "211. The applicant also claimed TRL 15,500 (approximately EUR 7,750) for the costs and expenses incurred before the Court. This included fees and costs incurred in respect of the preparation of the case (38 hours ’ legal work) and attendance at the hearing before the Court in Strasbourg as well as other expenses, such as telephone, fax, translation or stationary.", "212. The Government submitted that in the absence of any supporting documents the applicant ’ s claim under this head should be rejected.", "213. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,500 for costs and expenses for the proceedings before the Court, less EUR 1,494 received by way of legal aid from the Council of Europe.", "C. Default interest", "214. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1972 and lives in Diyarbakır.", "8. The applicant ’ s mother married A.O. in a religious ceremony. In 1990 the applicant and H.O., A.O. ’ s son, started a relationship and began living together. They officially married on 12 November 1995. They had three children, in 1993, 1994 and 1996. The applicant and H.O. had heated arguments from the outset of their relationship. The facts set out below were not disputed by the Government.", "A. The first assault by H.O. and A.O. against the applicant and her mother", "9. On 10 April 1995 the applicant and her mother filed a complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. and A.O had been asking them for money, and had beaten them and threatened to kill them. They also alleged that H.O. and his father wanted to bring other men home.", "10. On the same day, the applicant and her mother were examined by a doctor. The applicant ’ s medical report noted bruises on her body, an ecchymosis and swelling on her left eyebrow and fingernail scratches on the neck area. The medical report on the applicant ’ s mother also noted bruises and swellings on her body. On 20 April 1995 definitive reports were issued, which confirmed the findings of the first report and stated that the injuries in question were sufficient to render both the applicant and her mother unfit to work for five days.", "11. On 25 April 1995 the public prosecutor lodged indictments against H.O. and A.O. for death threats and actual bodily harm. On 15 June 1995 the Diyarbakır First Magistrate ’ s Court discontinued the assault case, as the applicant and her mother had withdrawn their complaints and had thereby removed the basis for the proceedings under Article 456 § 4 of the Criminal Code.", "12. On 11 September 1995 the Diyarbakır Second Magistrate ’ s Court also acquitted the defendants of making death threats on account of the lack of evidence, and again discontinued the assault case, noting that it had been previously heard by the Diyarbakır First Magistrate ’ s Court.", "B. The second assault by H.O. against the applicant", "13. On 11 April 1996, during an argument, H.O. beat the applicant very badly. The medical report drawn up on that occasion recorded surface bleeding on the applicant ’ s right eye, bleeding on her right ear, an ecchymosis on her left shoulder and back pain. The report concluded that the applicant ’ s injuries were sufficient to endanger her life. On the same day, at the request of the public prosecutor and by a decision of a single judge, H.O. was remanded in custody.", "14. On 12 April 1996 the public prosecutor filed a bill of indictment with the Diyarbakır Criminal Court, accusing H.O. of aggravated bodily harm under Articles 456 § 2 and 457 § 1 of the Criminal Code.", "15. On 15 April 1996 H.O. filed a petition with the Presidency of the First Magistrate ’ s Court, requesting his release pending trial. He explained that during an argument with his wife he had become angry and had slapped his wife two or three times. Then his mother-in-law, who worked at a hospital, had obtained a medical report for his wife and that report had led to his detention for no reason. He stated that he did not want to lose his family and business and that he regretted beating his wife.", "16. On 16 April 1996 the Second Magistrate ’ s Court dismissed H.O. ’ s request for release pending trial and decided that his pre-trial detention should be continued.", "17. At the hearing on 14 May 1996, the applicant repeated her complaint. The public prosecutor requested that H.O. be released pending trial, considering the nature of the offence and the fact that the applicant had regained full health. Consequently, the court released H.O.", "18. At a hearing of 13 June 1996, the applicant withdrew her complaint, stating that she and her husband had made their peace.", "19. On 18 July 1996 the court found that the offence fell under Article 456 § 4 of the Criminal Code, for which the applicant ’ s complaint was required in order to pursue the proceedings. It accordingly discontinued the case on the ground that the applicant had withdrawn her complaint.", "C. The third assault by H.O. against the applicant and her mother", "20. On 5 February 1998 the applicant, her mother, her sister and H.O. had a fight, in the course of which H.O. pulled a knife on the applicant. H.O., the applicant and her mother sustained injuries. The medical reports certified injuries which rendered them unfit to work for seven, three and five days respectively.", "21. On 6 March 1998 the public prosecutor decided not to prosecute anyone in respect of this incident. He concluded that there was insufficient evidence to prosecute H.O. in connection with the knife assault, and that the other offences such as battery and damage to property could be the subject of civil lawsuits. There was thus no public interest in pursuing the case.", "22. The applicant went to stay with her mother.", "D. The fourth assault by H.O. against the applicant and her mother: threats and assault (using a car) leading to initiation of divorce proceedings", "23. On 4 March 1998 H.O. ran a car into the applicant and her mother. The applicant ’ s mother was found to be suffering from life - threatening injuries. At the police station, H.O. maintained that the incident had been an accident. He had only wished to give the applicant and her mother a lift, which they had refused before they continued walking. They had then thrown themselves in front of the car. The applicant ’ s mother alleged that H.O. had told them to get into his car and that he would kill them if they refused. Since they did not want to get into the car and had started running away, H.O. had driven his car into the applicant, who had fallen. While the applicant ’ s mother tried to help her daughter, H.O. reversed and then drove forward, this time into the mother. The applicant ’ s mother regained consciousness in hospital. In her statements to the police the applicant confirmed her mother ’ s statements and alleged that her husband had tried to kill them with his car.", "24. On 5 March 1998 a single judge at the Diyarbakır Magistrate ’ s Court remanded H.O. in custody.", "25. On 19 March 1998 the public prosecutor initiated criminal proceedings against H.O. in the Diyarbakır Third Criminal Court for making death threats and inflicting grievous bodily harm. On the same day the Forensic Medicine Institute submitted a medical report which noted grazes on the applicant ’ s knees. The report concluded that the applicant ’ s injuries rendered her unfit to work for five days.", "26. On 20 March 1998 the applicant brought divorce proceedings against H.O. on the grounds that they had intense disagreements, that he was evading his responsibilities as a husband and a father, that he was mistreating her ( as proved by medical reports ), and that he was bringing other women to their home. The applicant submits that she later dropped the divorce case due to threats and pressure from her husband.", "27. On 2 April 1998 the applicant and her mother filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, asking for protective measures from the authorities subsequent to the death threats issued by H.O. and his father.", "28. On 2 and 3 April 1998 police officers took statements from the applicant, her mother, her brother and the latter ’ s wife as well as H.O. and his father. The applicant and her mother stated that H.O. had attempted to kill them with his car and that he had threatened to kill them if the applicant did not return to H.O. They noted that the applicant had already commenced divorce proceedings and that she did not want to return to live with H.O. The applicant ’ s brother and his wife alleged that the applicant was discouraged by her mother from going back to her husband and that they knew nothing about the threats issued by H.O. and his father. H.O. contended that his only intention was to bring his family together, but that his mother-in-law was preventing this. He also alleged that he had gone to the applicant ’ s brother and family elders for help, but to no avail. He maintained that he had never threatened the applicant or her mother and that their allegations were slanderous. H.O. ’ s father maintained that the applicant ’ s mother wanted her daughter to divorce H.O. and to marry somebody else.", "29. In a report dated 3 April 1998, the Director of the Law and Order Department of the Diyarbakır Security Directorate informed the Chief Public Prosecutor ’ s Office of the outcome of the investigation into the allegations made by the applicant and her mother. He concluded that the applicant had left her husband and gone to live with her mother. H.O. ’ s repeated requests for the return of his wife had been turned down by the applicant ’ s mother and the latter had insulted H.O. and made allegations that H.O. had issued death threats against her. H.O. had spent twenty - five days in prison for running a car into his mother - in-law and, following his release, had asked a number of mediators to convince his wife to return home. However, the mother did not allow the applicant to go back to H.O. Both parties had issued threats against each other. Furthermore, the mother had wished to separate her daughter from H.O. in order to take revenge on her ex-husband, had constantly made slanderous allegations and had also “wasted” the security forces ’ time.", "30. On 14 April 1998 the Diyarbakır Chief Public Prosecutor indicted H.O. and his father A.O. and charged them with issuing death threats against the applicant and her mother, contrary to Article 188 § 1 of the Criminal Code.", "31. On 30 April 1998 the Diyarbakır Criminal Court released H.O. pending trial. It further declared that it had no jurisdiction over the case and sent the file to the Diyarbakır Assize Court.", "32. On 11 May 1998 the Assize Court classified the offence as attempted murder. During the hearing of 9 July 1998, H.O. repeated that the incident had been an accident; the car door was open, and had accidentally hit the complainants when he moved the car. The applicant and her mother confirmed H.O. ’ s statement and maintained that they no longer wished to continue the proceedings.", "33. On 23 June 1998 the Diyarbakır Assize Court acquitted H.O. and his father of the charges of issuing death threats, for lack of sufficient evidence. The court noted that the accused had denied the allegations and the complainants had withdrawn their complaints. The applicant again resumed living with H.O.", "34. On 9 July 1998 the applicant ’ s mother was given another medical examination, which found that her injuries were not life-threatening but were sufficient to render her unfit for work for twenty - five days.", "35. At the hearing of 8 October 1998 the applicant and her mother withdrew their complaints. They stated that the car door had been open and that H.O. had accidentally hit them. When questioned about their complaints against H.O., the applicant and her mother stated that they had had a fight with H.O. and that they had made those allegations in anger.", "36. On 17 November 1998 the Diyarbakır Assize Court concluded that the case should be discontinued in respect of the offence against the applicant, as she had withdrawn her complaint. However, it decided that, although the applicant ’ s mother had also withdrawn her complaint, H.O. should still be convicted of that offence, since the injuries were more serious. Subsequently, the court sentenced H.O. to three months ’ imprisonment and a fine; the sentence of imprisonment was later commuted to a fine.", "E. The fifth assault by H.O. against the applicant : causing grievous bodily harm", "37. On 29 October 2001 the applicant went to visit her mother. Later that day H.O. telephoned and asked the applicant to return home. The applicant, worried that her husband would again be violent towards her, said to her mother “this man is going to tear me to pieces!” The applicant ’ s mother encouraged the applicant to return home with the children. Three-quarters of an hour later one of the children went back, saying that his father had stabbed and killed his mother. The applicant ’ s mother rushed to the applicant ’ s house. She saw that the applicant was lying on the floor bleeding. With the help of neighbours, she put the applicant into a taxi and took her to the Diyarbakır State Hospital. The hospital authorities told her that the applicant ’ s condition was serious and transferred her to the Dicle University Hospital, which was better equipped. The medical report on the applicant noted seven knife injuries on different parts of her body. However, the injuries were not classified as life-threatening.", "38. At about 11.30 p.m. on the same day, H.O. handed himself in at a police station. The police confiscated the knife which he had used during the incident. H.O. maintained that his wife and children were still not at home when he came back at 6 p.m. He had telephoned them and asked them to come back. On their return, he asked the applicant, “Why are you wandering outside? Why haven ’ t you cooked anything for me?” The applicant replied, “We ate at my mother ’ s”, and brought him a plate of fruit. They continued arguing. He told her, “Why are you going to your mother so often? Don ’ t go there so much, stay at home and look after the children!” The argument escalated. At some point, the applicant attacked him with a fork. They started fighting, during which he lost control, grabbed the fruit knife and stabbed her; he did not remember how many times. He claimed that his wife was bigger than him, so he had to respond when she attacked him. He added that his wife was not a bad person and that they had lived together peacefully until two years previously. However, they started fighting when the applicant ’ s mother began interfering with their marriage. He stated that he regretted what he had done. H.O. was released after his statement had been taken.", "39. On 31 October 2001 the applicant ’ s mother ’ s lawyer petitioned the Diyarbakır Public Prosecutor ’ s Office. In her petition, she stated that the applicant ’ s mother had told her that H.O. had beaten her daughter very badly about five years earlier, after which he was arrested and detained. However, he was released at the first hearing. She maintained that her client and the applicant had been obliged to withdraw their complaints due to continuing death threats and pressure from H.O. She further stated that there was hearsay about H.O. being involved in trafficking women. Finally, she referred to the incident of 4 March 1998 (see paragraph 23 above), arguing that, following such a serious incident, H.O. ’ s release was morally damaging and requested that he be detained on remand.", "40. On 2 November 2001 the applicant ’ s lawyer filed an objection with the Chief Public Prosecutor ’ s Office against the medical report of the Dicle Medical Faculty Hospital, which had concluded that the applicant ’ s injuries were not life-threatening. The lawyer requested a new medical examination.", "41. On 9 November 2001 the applicant filed a petition with the Diyarbakır Chief Public Prosecutor ’ s Office, complaining that she had been stabbed many times by H.O. subsequent to an argument with him. She asked the public prosecutor to send her to the Forensic Institute for a new medical examination.", "42. On 8 November 2001 the applicant underwent a new medical examination at the Forensic Institute in Diyarbakır on the instructions of the public prosecutor. The forensic medical doctor noted the presence of wounds caused by a knife on the left - hand wrist (3 cm long), on the left hip (5 cm deep), another 2 cm-deep wound on the left hip and a wound just above the left knee. He opined that these injuries were not life-threatening but would render the applicant unfit for work for seven days.", "43. On 12 December 2001 the public prosecutor filed a bill of indictment with the Diyarbakır Magistrate ’ s Court, charging H.O. with knife assault under Articles 456 § 4 and 457 § 1 of the Criminal Code.", "44. By a criminal decree of 23 May 2002, the Diyarbakır Second Magistrate ’ s Court imposed a fine of 839,957,040 Turkish liras (TRL) on H.O for the knife assault on the applicant. It decided that he could pay this fine in eight instalments.", "F. The sixth incident whereby H.O. threatened the applicant", "45. On 14 November 2001 the applicant lodged a criminal complaint with the Diyarbakır Public Prosecutor ’ s Office, alleging that H.O. had been threatening her.", "46. On 11 March 2002 the public prosecutor decided that there was no concrete evidence to prosecute H.O. apart from the allegations made by the applicant.", "G. The applicant ’ s mother filed a complaint with the public prosecutor ’ s office alleging death threats issued by H.O. and A.O.", "47. On 19 November 2001 the applicant ’ s mother filed a complaint with the public prosecutor. In her petition, she stated that H.O., A.O. and their relatives had been consistently threatening her and her daughter. In particular, H.O. told her, “I am going to kill you, your children and all of your family!” He was also harassing her and invading her privacy by wandering around her property carrying knives and guns. She maintained that H.O. was to be held liable should an incident occur involving her and her family. She also referred to the events of 29 October 2001, when the applicant was stabbed by him (see paragraph 37 above). In response to this petition, on 22 November 2002, the public prosecutor wrote a letter to the Security Directorate in Diyarbakır and asked them to take statements from the complainant and H.O. and to submit an investigation report to his office.", "48. In the meantime, on 14 December 2001 the applicant again initiated divorce proceedings in the Diyarbakır Civil Court.", "49. On 23 December 2001 the police took statements from H.O. in relation to the applicant ’ s mother ’ s allegations. He denied the allegations against him and claimed that his mother-in-law, who had been interfering with his marriage and influencing his wife to lead an immoral life, had issued threats against him. The police took further statements from the applicant ’ s mother on 5 January 2002. She claimed that H.O. had been coming to her doorstep every day, showing a knife or shotgun and threatening to kill her, her daughter and her grandchildren.", "50. On 10 January 2002 H.O. was charged under Article 191 § 1 of the Criminal Code with making death threats.", "51. On 27 February 2002 the applicant ’ s mother submitted a further petition to the Diyarbakır Public Prosecutor ’ s Office. She maintained that H.O. ’ s threats had intensified. H.O., together with his friends, had been harassing her, threatening her and swearing at her on the telephone. She stated that her life was in immediate danger and requested that the police tap her telephone and take action against H.O. On the same day, the public prosecutor instructed the Directorate of Turkish Telecom in Diyarbakır to submit to his office a list of all the numbers which would call the applicant ’ s mother ’ s telephone line over the following month. In the absence of any response, the public prosecutor repeated his request on 3 April 2002.", "52. On 16 April 2002 the Diyarbakır Magistrate ’ s Court questioned H.O. in relation to his knife assault on his mother-in-law. He repeated the statement he had made to the police, adding that he did not wish his wife to visit her mother, as the mother had been pursuing an immoral life.", "H. The killing of the applicant ’ s mother by H.O.", "53. The applicant had been living with her mother since the incident of 29 October 2001.", "54. On an unspecified date the applicant ’ s mother made arrangements with a removal company to move her furniture to İzmir. H.O. learned of this and allegedly said, “Wherever you go, I will find and kill you!”. Despite the threats, on 11 March 2002 the furniture was loaded onto the removal company ’ s pick-up truck. The pick-up truck made two trips between the company ’ s transfer centre and the house. On its third trip, the applicant ’ s mother asked the driver whether she could drive with him to the transfer centre. She sat on the front seat, next to the driver. On their way, a taxi pulled up in front of the truck and started signalling. The pick-up driver, thinking that the taxi driver was going to ask for an address, stopped. H.O. got out of the taxi. He opened the front door where the applicant ’ s mother was sitting, shouted something like, “Where are you taking the furniture?” and shot her. The applicant ’ s mother died instantly.", "I. The criminal proceedings against H.O.", "55. On 13 March 2002 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court, accusing H.O. of intentional murder under Article 449 § 1 of the Criminal Code.", "56. In his statements to the police, the public prosecutor and the court, H.O. claimed that he had killed the applicant ’ s mother because she had induced his wife to lead an immoral life, like her own, and had encouraged his wife to leave him, taking their children with her. He further alleged that on the day of the incident, when he asked the deceased where she was taking the furniture and where his wife was, the deceased had replied “F... off, I will take away your wife, and sell [her]”. He stated that he had lost his temper and had shot her for the sake of his honour and children.", "57. In a final judgment dated 26 March 2008, the Diyarbakır Assize Court convicted H.O. of murder and illegal possession of a firearm. It sentenced him to life imprisonment. However, taking into account the fact that the accused had committed the offence as a result of provocation by the deceased and his good conduct during the trial, the court mitigated the original sentence, changing it to fifteen years and ten months ’ imprisonment and a fine of 180 Turkish liras (TRY). In view of the time spent by the convict in pre-trial detention and the fact that the judgment would be examined on appeal, the court ordered the release of H.O.", "58. The appeal proceedings are still pending before the Court of Cassation.", "J. Recent developments following the release of H.O.", "59. In a petition dated 15 April 2008, the applicant filed a criminal complaint with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir, for submission to the Diyarbakır Chief Public Prosecutor ’ s Office, and asked the authorities to take measures to protect her life. She noted that her ex ‑ husband [1], H.O., had been released from prison and that in early April he had gone to see her boyfriend M.M., who worked at a construction site in Diyarbakır, and had asked him about her whereabouts. Since M.M. refused to tell him her address, H.O. threatened him and told him that he would kill him and the applicant. The applicant claimed that H.O. had already killed her mother and that he would not hesitate to kill her. She had been changing her address constantly so that H.O. could not find her. Finally, she asked the prosecuting authorities to keep her address, indicated on the petition, and her boyfriend ’ s name confidential and to hold H.O. responsible if anything untoward happened to her or her relatives.", "60. On 14 May 2008 the applicant ’ s representative informed the Court that the applicant ’ s husband had been released from prison and that he had again started issuing threats against the applicant. She complained that no measures had been taken despite the applicant ’ s request. She therefore asked the Court to request the Government to provide sufficient protection.", "61. In a letter dated 16 May 2008, the Registry transmitted the applicant ’ s request to the Government for comments and invited them to inform the Court of the measures to be taken by their authorities.", "62. On 26 May 2008 the Director of the International Law and Relations Department attached to the Ministry of Justice faxed a letter to the Diyarbakır Chief Public Prosecutor ’ s Office in relation to the applicant ’ s complaints to the European Court of Human Rights. He informed the Chief Public Prosecutor ’ s Office of the applicant ’ s pending application before the Court and asked them to provide information on the current state of execution of H.O. ’ s sentence, the state of proceedings with regard to the applicant ’ s criminal complaint filed with the Kemalpaşa Chief Public Prosecutor ’ s Office in İzmir and the measures taken to protect the applicant ’ s life.", "63. On the same day, a public prosecutor from the Diyarbakır Chief Public Prosecutor ’ s Office wrote to the Diyarbakır Governor ’ s Office and asked him to take measures for the protection of the applicant.", "64. By a letter of 28 May 2008 from the Diyarbakır Chief Public Prosecutor ’ s Office to the Şehitler Central Police Directorate in Diyarbakır, the Public Prosecutor (A.E.) asked the police to summon H.O. to his office in relation to an investigation.", "65. On 29 May 2008 A.E. questioned H.O. in relation to the criminal complaint filed by the applicant. H.O. denied the allegation that he had issued threats against the applicant and claimed that she had made such allegations in order to disturb him following his release from prison. He maintained that he did not feel any enmity towards the applicant and that he had devoted himself to his family and children.", "66. On 3 June 2008 A.E. took statements from the applicant ’ s boyfriend, M.M. The latter stated that H.O. had called him and asked him for the applicant ’ s address, and had told him that he would kill her. M.M. did not meet H.O. Nor did he file a criminal complaint against H.O. He had, however, called the applicant and informed her about the threats issued by H.O.", "67. In a letter dated 20 June 2008, the Government informed the Court that the applicant ’ s husband had not yet served his sentence but that he had been released pending the appeal proceedings in order to avoid exceeding the permissible limit of pre-trial detention. They also stated that the local governor ’ s office and the Chief Public Prosecutor ’ s Office had been informed about the applicant ’ s complaint and that they had been instructed to take precautions for the protection of the applicant.", "68. Finally, on 14 November 2008 the applicant ’ s legal representative informed the Court that his client ’ s life was in immediate danger since the authorities had still not taken any measures to protect her from her former husband. The Registry of the Court transmitted this letter on the same day to the Government, inviting them to provide information about the measures they had taken to protect the applicant.", "69. On 21 November 2008 the Government informed the Court that the police authorities had taken specific measures to protect the applicant from her former husband. In particular, the photograph and fingerprints of the applicant ’ s husband had been distributed to police stations in the region so that they could arrest him if he appeared near the applicant ’ s place of residence. The police questioned the applicant in relation to the allegations. She stated that she had not been threatened by her husband over the past month and a half." ]

[ "II. RELEVANT LAW AND PRACTICE", "A. Domestic law and practice", "70. The relevant domestic law provisions relied on by the judicial authorities in the instant case are set out below.", "1. The Criminal Code", "Article 188", "“ Whoever by use of force or threats compels another person to do or not to do something or to obtain the latter ’ s permission to do something ... will be sentenced to between six months ’ and one year ’ s imprisonment, and a major fine of between one thousand and three thousand liras ...”", "Article 191 § 1", "“Whoever, apart from the situations set out in law, threatens another person with severe and unjust damage will be sentenced to six months ’ imprisonment.”", "Article 449", "“If the act of homicide is:", "( a ) committed against a wife, husband, sister or brother, adoptive mother, adopted child, stepmother, stepfather, stepchild, father-in-law, mother-in-law, son-in-law, or daughter -in-law ... the offender will be sentenced to life imprisonment ...”", "Article 456 § § 1, 2 and 4", "“ Whoever torments another person physically or damages his or her welfare or causes cerebral damage, without intending murder, will be sentenced to between six months ’ and one year ’ s imprisonment.", "Where the act constitutes a danger to the victim ’ s life or causes constant weakness in one of the organs or senses, or permanent difficulty in speech or permanent injuries to the face, or physical or mental illness for twenty or more days, or prevents [the victim] from continuing his regular work for the same number of days, the offender will be sentenced to between two and five years ’ imprisonment.", "...", "If the act did not cause any illness or did not prevent [the victim] from continuing his regular work or these situations did not last for more than ten days, the offender will be sentenced to between two and six months ’ imprisonment or to a heavy fine of twelve thousand to one hundred and fifty thousand liras, provided that the injured person complains ...”", "Article 457", "“If the acts mentioned in Article 456 are committed against the persons cited in Article 449 or if the act is committed by a hidden or visible weapon or harmful chemical, the punishment shall be increased by one - third to a half of the main sentence.”", "Article 460", "“In situations mentioned under Articles 456 and 459, where commencement of the prosecution depends on the lodging of a complaint [by the victim], if the complainant waives his/her claims before the pronouncement of the final judgment the public prosecution shall be terminated.”", "2. The Family Protection Act (Law no. 4320 of 14 January 1998)", "Section 1", "“If a spouse or a child or another family member living under the same roof is subjected to domestic violence and if the magistrate ’ s court dealing with civil matters is notified of the fact by that person or by the Chief Public Prosecutor ’ s Office, the judge, taking account of the nature of the incident, may on his or her own initiative order one or more of the following measures or other similar measures as he or she deems appropriate. The offending spouse may be ordered:", "(a) not to engage in violent or threatening behaviour against the other spouse or the children (or other family members living under the same roof);", "(b) to leave the shared home and relinquish it to the other spouse and the children, if any, and not to approach the home in which the other spouse and the children are living, or their workplaces;", "(c) not to damage the property of the other spouse (or of the children or other family members living under the same roof);", "(d) not to disturb the other spouse or the children (or other family members living under the same roof) through the use of communication devices;", "(e) to surrender any weapons or similar instruments to law-enforcement officials;", "(f) not to arrive at the shared home when under the influence of alcohol or other intoxicating substances, or not to use such substances in the shared home.", "The above ‑ mentioned measures shall be applied for a period not exceeding six months. In the order, the offending spouse shall be warned that in the event of failure to comply with the measures imposed, he or she will be arrested and sentenced to a term of imprisonment. The judge may order interim maintenance payments, taking account of the victim ’ s standard of living.", "Applications made under section 1 shall not be subject to court fees. ”", "Section 2", "“ The court shall transmit a copy of the protection order to the Chief Public Prosecutor ’ s Office. The Chief Public Prosecutor ’ s Office shall monitor implementation of the order by means of the law-enforcement agencies.", "In the event of failure to comply with the protection order, the law-enforcement agency shall conduct an investigation on its own initiative, without the victim being required to lodge a complaint, and shall transmit the documents to the Chief Public Prosecutor ’ s Office without delay.", "The Chief Public Prosecutor ’ s Office shall bring a public prosecution in the magistrate ’ s court against a spouse who fails to comply with a protection order. The location and expeditious holding of the hearing in the case shall be subject to the provisions of Law no. 3005 on the procedure governing in flagrante delicto cases.", "Even if the act in question constitutes a separate offence, a spouse who fails to comply with a protection order shall also be sentenced to three to six months ’ imprisonment. ”", "3. Implementing regulations for the Family Protection Act, dated 1 March 2008", "71. These regulations, which were drawn up to govern the implementation of Law no. 4320, set out the measures to be taken in respect of the family members perpetrating violence and the procedures and principles governing the application of those measures, in order to protect family members subjected to domestic violence.", "B. Relevant international and comparative - law materials", "1. The United Nations ’ position with regard to domestic violence and discrimination against women", "72. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly and ratified by Turkey on 19 January 1986.", "73. The CEDAW defines discrimination against women as “ ... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” As regards the States ’ obligations, Article 2 of the CEDAW provides, in so far as relevant, the following:", "“States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:", "...", "(e) to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise;", "(f) to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;", "... ”", "74. The Committee on the Elimination of All Forms of Discrimination Against Women (hereinafter “the CEDAW Committee”) has found that “gender-based violence is a form of discrimination that seriously inhibits women ’ s ability to enjoy rights and freedoms on a basis of equality with men” and is thus prohibited under Article 1 of the CEDAW. Within the general category of gender-based violence, the CEDAW Committee includes violence by “private act” [2] and “family violence” [3]. Consequently, gender-based violence triggers duties in States. General Recommendation No. 19 sets out a catalogue of such duties. They include a duty on States to “take all legal and other measures that are necessary to provide effective protection of women against gender-based violence ” [4], “ including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence” [5]. In its Concluding Comments on the combined fourth and fifth periodic report of Turkey (hereinafter “ the Concluding Comments”), the CEDAW Committee reiterated that violence against women, including domestic violence, is a form of discrimination (see UN doc. CEDAW/C/TUR/4-5 and Corr.1, 15 February 2005, § 28).", "75. Furthermore, in its explanations of General Recommendation No. 19, the CEDAW Committee considered the following:", "“... 6. The Convention in Article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.", "7. Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of Article 1 of the Convention.", "Comments on specific Articles of the Convention", "...", "Articles 2 (f), 5 and 10 (c)", "11. Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.”", "76. In the case of A.T. v. Hungary (decision of 26 January 2005), where the applicant had alleged that her common-law husband and father of her two children had been physically abusing and threatening her from 1998 onwards, the CEDAW Committee directed Hungary to take measures “to guarantee the physical and mental integrity of the applicant and her family”, as well as to ensure that she was provided with a safe place of residence to live with her children, and that she received child support, legal assistance and compensation in proportion to the harm sustained and the violation of her rights. The Committee also made several general recommendations to Hungary on improving the protection of women against domestic violence, such as establishing effective investigative, legal and judicial processes, and increasing treatment and support resources.", "77. In the case of Fatma Yıldırım v. Austria (decision of 1 October 2007), which concerned the killing of Mrs Yıldırım by her husband, the CEDAW Committee found that the State Party had breached its due diligence obligation to protect Fatma Yıldırım. It therefore concluded that the State Party had violated its obligations under Article 2 (a) and (c) to (f), and Article 3 of the CEDAW read in conjunction with Article 1 of the CEDAW and General Recommendation No. 19 of the CEDAW Committee and the corresponding rights of the deceased Fatma Yıldırım to life and to physical and mental integrity.", "78. The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4 (c), urges States to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons”.", "79. In his third report, of 20 January 2006, to the Commission on Human Rights of the United Nations Economic and Social Council (E/CN.4/2006/61), the special rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”.", "2. The Council of Europe", "80. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention.", "81. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’ s rights are protected during proceedings.", "82. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.", "3. The Inter-American System", "83. In Velazquez-Rodriguez v. Honduras, the Inter-American Court of Human Rights stated:", "“An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.” [6]", "84. The legal basis for the ultimate attribution of responsibility to a State for private acts relies on State failure to comply with the duty to ensure human rights protection, as set out in Article 1 § 1 of the American Convention on Human Rights [7]. The Inter-American Court ’ s case-law reflects this principle by repeatedly holding States internationally responsible on account of their lack of due diligence to prevent human rights violations, to investigate and sanction perpetrators or to provide appropriate reparations to their families.", "85. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women 1994 ( the Belém do Pará Convention) [8] sets out States ’ duties relating to the eradication of gender - based violence. It is the only multilateral human rights treaty to deal solely with violence against women.", "86. The Inter-American Commission adopts the Inter-American Court of Human Right ’ s approach to the attribution of State responsibility for the acts and omissions of private individuals. In the case of Maria Da Penha v. Brazil [9], the Commission found that the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint warranted a finding of State responsibility under the American Convention on Human Rights and the Belém do Pará Convention. Furthermore, Brazil had violated the rights of the applicant and failed to carry out its duty ( inter alia, under Article 7 of the Belém do Pará Convention, obliging States to condemn all forms of violence against women), as a result of its failure to act and its tolerance of the violence inflicted. Specifically, the Commission held that:", "“... tolerance by the State organs is not limited to this case; rather, it is a pattern. The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women.", "Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfil the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices. That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts.” [10]", "4. Comparative- law materials", "87. In eleven member States of the Council of Europe, namely in Albania, Austria, Bosnia and Herzegovina, Estonia, Greece, Italy, Poland, Portugal, San Marino, Spain and Switzerland, the authorities are required to continue criminal proceedings despite the victim ’ s withdrawal of complaint in cases of domestic violence.", "88. In twenty - seven member States, namely in Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, England and Wales, Finland, “ the former Yugoslav Republic of Macedonia ”, France, Georgia, Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Moldova, the Netherlands, the Russian Federation, Serbia, Slovakia, Sweden, Turkey and Ukraine, the authorities have a margin of discretion in deciding whether to pursue criminal proceedings against perpetrators of domestic violence. A significant number of legal systems make a distinction between crimes which are privately prosecutable (and for which the victim ’ s complaint is a prerequisite) and those which are publicly prosecutable (usually more serious offences for which prosecution is considered to be in the public interest).", "89. It appears from the legislation and practice of the above-mentioned twenty - seven countries that the decision on whether to proceed where the victim withdraws his/her complaint lies within the discretion of the prosecuting authorities, which primarily take into account the public interest in continuing criminal proceedings. In some jurisdictions, such as England and Wales, in deciding whether to pursue criminal proceedings against the perpetrators of domestic violence the prosecuting authorities (Crown Prosecution Service) are required to consider certain factors, including: the seriousness of the offence; whether the victim ’ s injuries are physical or psychological; if the defendant used a weapon; if the defendant has made any threats since the attack; if the defendant planned the attack; the effect (including psychological) on any children living in the household; the chances of the defendant offending again; the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; the current state of the victim ’ s relationship with the defendant; the effect on that relationship of continuing with the prosecution against the victim ’ s wishes; the history of the relationship, particularly if there was any other violence in the past; and the defendant ’ s criminal history, particularly any previous violence. Direct reference is made to the need to strike a balance between the victim ’ s and any children ’ s Article 2 and Article 8 rights in deciding on a course of action.", "90. Romania seems to be the only State which bases the continuance of criminal proceedings entirely, and in all circumstances, on the wishes/complaints of the victim.", "C. Reports concerning domestic violence and the situation of women in Turkey", "1. The opinion of the Purple Roof Women ’ s Shelter Foundation (Mor Çatı Kadın Sığınağı Vakfı – “the Mor Çatı Foundation ” ) on the implementation of Law no. 4320, dated 7 July 2007", "91. According to this report, Law no. 4320 (see paragraph 70 above) is not yet being fully implemented. In recent years there has been an increase in “protection orders” or injunctions issued by family courts. However, some courts, in response to applications made to them by women in mortal danger, are still setting hearings two or even three months ahead. Under these circumstances, judges and prosecutors treat an action under Law no. 4320 as if it were a form of divorce action, whereas the point of the Law is to take urgent action on behalf of women who are seeking to protect their own lives. Once the injunction has been issued, women are confronted with a number of problems with its implementation.", "92. In the two years before the report was released approximately 900 women applied to the Mor Çatı Foundation and made great efforts to use Law no. 4320, but of this number only 120 succeeded. The Mor Çatı Foundation has identified serious problems with the implementation of Law no. 4320. In particular, it was observed that domestic violence is still treated with tolerance at police stations, and that some police officers try to act as arbitrators, or take the side of the male, or suggest that the woman drop her complaint. There are also serious problems in serving the injunction issued by a court under Law no. 4320 on the husband. In the case of a number of women wishing to work with the Mor Çatı Foundation, injunctions were not implemented because their husbands were police officers or had friendly relations with officers at the police station in question.", "93. Furthermore, there are unreasonable delays in issuing injunctions by the courts. This results from the attitude of the courts in treating domestic violence complaints as a form of divorce action. It is considered that behind such delays lies a suspicion that women might be making such applications when they have not suffered violence. The allegations that women abuse Law no. 4320 are not correct. Since the economic burden of the home lies almost 100% with men, it would be impossible for women to request implementation of Law no. 4320 unless they were confronted with mortal danger. Finally, the injunctions at issue are generally narrow in scope or are not extended by the courts.", "2. Research report prepared by the Women ’ s Rights Information and Implementation Centre of the Diyarbakır Bar Association (KA ‑ MER) on the Implementation of Law no. 4320, dated 25 November 2005", "94. According to this report, a culture of violence has developed in Turkey and violence is tolerated in many areas of life. A survey of legal actions at a magistrate ’ s court dealing with civil matters ( sulh hukuk mahkemesi ) and three civil courts ( asliye hukuk mahkemesi ) in Diyarbakır identified 183 actions brought under Law no. 4320 from the date on which the Law entered into force in 1998 until September 2005. In 104 of these cases, the court ordered various measures, while in the remaining 79 actions the court held that there were no grounds for making an order, or dismissed the action, or ruled that it lacked jurisdiction.", "95. Despite the importance of the problem of domestic violence, very few applications have been made under the said Law, because either the public is not generally aware of it or the level of confidence in the security forces is very low in the region. The most important problems were caused by the delay in issuing injunctions and the authorities ’ failure to monitor the implementation of injunctions.", "96. Moreover, the negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this Law. Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend to regard the problem as a private family matter into which the police are reluctant to interfere.", "97. This report makes recommendations to improve the implementation of Law no. 4320 and to enhance the protection of victims of domestic violence.", "3. Diyarbakır KA-MER Emergency Helpline statistics for the period 1 August 1997 to 30 June 2007", "98. This statistical information report was prepared following interviews conducted with 2,484 women. It appears that all of the complainants were subjected to psychological violence and approximately 60% were subjected to physical violence. The highest number of victims is in the 20-30 age group (43%). 57% of these women are married. The majority of victims are illiterate or of a low level of education. 78% of the women are of Kurdish origin. 91% of the victims who called the emergency helpline are from Diyarbakır. 85% of the victims have no independent source of income.", "4. Amnesty International ’ s 2004 report entitled “Turkey: women confronting family violence”", "99. According to this report, statistical information about the extent of violence against women in Turkey is limited and unreliable. Nonetheless, it appears that a culture of domestic violence has placed women in double jeopardy, both as victims of violence and because they are denied effective access to justice. Women from vulnerable groups, such as those from low-income families or who are fleeing conflict or natural disasters, are particularly at risk. In this connection, it was found that crimes against women in south - east Turkey have gone largely unpunished.", "100. It was noted that women ’ s rights defenders struggle to combat community attitudes, which are tolerant of violence against women and are frequently shared by judges, senior government officials and opinion leaders in society. Even after legislative reforms have removed the legal authorisation for discriminatory treatment, attitudes that pressure women to conform to certain codes of behaviour restrict women ’ s life choices.", "101. The report states that at every level of the criminal justice system the authorities fail to respond promptly or rigorously to women ’ s complaints of rape, sexual assault or other violence within the family. The police are reluctant to prevent and investigate family violence, including the violent deaths of women. Prosecutors refuse to open investigations into cases involving domestic violence or to order protective measures for women at risk from their family or community. The police and courts do not ensure that men, who are served with court orders, including protection orders, comply with them. They accord them undue leniency in sentencing, on the grounds of “provocation” by their victim and on the flimsiest of evidence.", "102. There are many barriers facing women who need access to justice and protection from violence. Police officers often believe that their duty is to encourage women to return home and “make peace” and fail to investigate the women ’ s complaints. Many women, particularly in rural areas, are unable to make formal complaints, because leaving their neighbourhoods subjects them to intense scrutiny, criticism and, in some cases, violence.", "103. Furthermore, although some courts appear to have begun implementing the reforms, the discretion accorded to the courts continues to accord the perpetrators of domestic violence unwarranted leniency. Sentences in such cases are still frequently reduced at the discretion of the judges, who continue to take into account the “severe provocation” of the offence to custom, tradition or honour.", "104. Finally, this report makes a number of recommendations to the Turkish government and to community and religious authorities with a view to addressing the problem of domestic violence.", "5. Report on Honour Crimes, prepared by the Diyarbakır Bar Association ’ s Justice For All Project and the Women ’ s Rights Information and Implementation Centre", "105. This report was prepared in order to look into the judicial dimensions of the phenomenon of so-called “honour crimes”. A survey was carried out of judgments in cases before the Diyarbakır assize courts and children ’ s courts. The purpose of the survey was to identify the proportion of such unlawful killings referred to the courts, the judiciary ’ s attitude to them, the defendants ’ lines of defence in these cases, the role of social structure ( that is, family councils and custom) and the reasons for the murders. To that end, cases in the Diyarbakır assize courts and children ’ s courts between 1999 and 2005 were examined. In these seven years, 59 cases were identified in which a judgment was given. In these cases, there were 71 victims/persons killed, and 81 people were tried as defendants.", "106. According to the researchers, in cases where the victim/person killed was male, it was observed that defendants claimed, in their defence, that the victim/person killed had raped, sexually assaulted, or abducted a relative of the defendant, or had attempted to draw a relative of the defendant into prostitution. In cases where the victim/person killed was a woman, defendants alleged, in their defence, that the victim/person killed had been talking to other men, had taken up prostitution, or had committed adultery. In 46 of the judgments, mitigating provisions concerning unjustified provocation were applied. In cases of 61 convictions, the provisions of Article 59 of the Turkish Criminal Code concerning discretionary mitigation were applied.", "THE LAW", "I. ADMISSIBILITY", "107. The Government contested the admissibility of the application on two grounds.", "A. Failure to observe the six-month rule under Article 35 § 1 of the Convention", "108. The Government submitted that the applicant had failed to observe the six-month time-limit in respect of the events which had taken place before 2001. They argued that the events which had taken place between 1995 and 2001 should be considered as out of time. If the applicant was not satisfied with the decisions given by the domestic authorities subsequent to the events which had taken place during the above- mentioned period, she should have submitted her application to the Commission or, following the entry into force of Protocol No. 11, to the Court within six months of each decision.", "109. The applicant claimed that she had lodged her application within six months of the impugned events. In her opinion the events should be taken as a whole and should not be examined separately.", "110. The Court reiterates that the purpose of the six-month rule under Article 35 § 1 of the Convention is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (see Kenar v. Turkey (dec.), no. 67215/01, 1 December 2005). According to its well-established case-law, where no domestic remedy is available the six-month period runs from the date of the act complained of.", "111. In that regard, the Court notes that from 10 April 1995 the applicant and her mother had been victims of multiple assaults and threats by H.O. against their physical integrity. These acts of violence had resulted in the death of the applicant ’ s mother and caused the applicant intense suffering and anguish. While there were intervals between the impugned events, the Court considers that the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events.", "112. This being so, the Court notes that the applicant has submitted her application within six months of the killing of her mother by H.O., which event may be considered as the time that she became aware of the ineffectiveness of the remedies in domestic law, as a result of the authorities ’ failure to stop H.O. committing further violence. Given that these circumstances do not disclose any indication of a delay on the part of the applicant in introducing her application once it became apparent that no redress for her complaints was forthcoming, the Court considers that the relevant date for the purposes of the six-month time-limit should not be considered to be a date earlier than at least 13 March 2002 (see paragraph 54 above). In any event, the applicant ’ s former husband had continued to issue threats against her life and well-being and, therefore, it cannot be said that the said pattern of violence has come to an end (see paragraphs 59-69 above).", "113. In the specific context of this case, it follows that the applicant ’ s complaints have been introduced within the six-month time-limit required by Article 35 § 1 of the Convention. The Court therefore dismisses the Government ’ s preliminary objection in this regard.", "B. Failure to exhaust domestic remedies", "114. The Government further contended that the applicant had failed to exhaust domestic remedies since she and her mother had withdrawn their complaints many times and had caused the termination of the criminal proceedings against the applicant. They maintained that the applicant had also not availed herself of the protection afforded by Law no. 4320 and that she had prevented the public prosecutor from applying to the family court, in that she had withdrawn her complaints. They submitted further that the applicant could have availed herself of the administrative and civil law remedies whose effectiveness had been recognised by the Court in previous cases (citing Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII). Finally, relying on the Court ’ s judgments in Ahmet Sadık v. Greece (15 November 1996, § 34, Reports 1996-V) and Cardot v. France (19 March 1991, § 30, Series A no. 200), the Government claimed that the applicant had failed to raise, even in substance, her complaints of discrimination before the national authorities and that, therefore, these complaints should be declared inadmissible.", "115. The applicant claimed that she had exhausted all available remedies in domestic law. She argued that the domestic remedies had proven to be ineffective given the failure of the authorities to protect her mother ’ s life and to prevent her husband from inflicting ill-treatment on her and her mother. As regards the Government ’ s reliance on Law no. 4320, to the effect that she had not availed herself of the remedies therein, the applicant noted that the said law had come into force on 14 January 1998, whereas a significant part of the events at issue had taken place prior to that date. Prior to the entry into force of Law no. 4320, there was no mechanism for protection against domestic violence. In any event, despite her numerous criminal complaints to the Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of the applicant and her mother.", "116. The Court observes that the main question with regard to the question of exhaustion of domestic remedies is whether the applicants have failed to make use of available remedies in domestic law, particularly those provided by Law no. 4320, and whether the domestic authorities were required to pursue the criminal proceedings against the applicant ’ s husband despite the withdrawal of complaints by the victims. These questions are inextricably linked to the question of the effectiveness of the domestic remedies in providing sufficient safeguards for the applicant and her mother against domestic violence. Accordingly, the Court joins these questions to the merits and will examine them under Articles 2, 3 and 14 of the Convention (see, among other authorities, Şemsi Önen v. Turkey, no. 22876/93, § 77, 14 May 2002).", "117. In view of the above, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "118. The applicant complained that the authorities had failed to safeguard the right to life of her mother, who had been killed by her husband, in violation of Article 2 § 1 of the Convention, the relevant part of which provides:", "“Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...”", "A. The parties ’ submissions", "1. The applicant", "119. The applicant asserted at the outset that domestic violence was tolerated by the authorities and society and that the perpetrators of domestic violence enjoyed impunity. In this connection, she pointed out that, despite their numerous criminal complaints to the Diyarbakır Chief Public Prosecutor ’ s Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of herself and her mother. Conversely, on a number of occasions, the authorities had tried to persuade the applicant and her mother to abandon their complaints against H.O. The domestic authorities had remained totally passive in the face of death threats issued by H.O. and had left her and her mother to the mercy of their aggressor.", "120. The applicant pointed out that, by a petition dated 27 February 2002, her mother had applied to the Chief Public Prosecutor ’ s Office and had informed the authorities of the death threats issued by H.O. However, the public prosecutor had done nothing to protect the life of the deceased. In the applicant ’ s opinion, the fact that the authorities had not taken her mother ’ s complaint seriously was a clear indication that domestic violence was tolerated by society and the national authorities.", "121. The applicant also claimed that, although H.O. had been convicted of murder, the punishment imposed on him was not a deterrent and was considerably less than the normal sentence imposed for murder. The imposition of a lenient sentence had resulted from the fact that, in his defence submissions before the Assize Court, the accused had claimed to have killed her mother in order to protect his honour. It was the general practice of the criminal courts in Turkey to mitigate sentences in cases of “honour crimes”. In cases concerning “honour crimes”, the criminal courts imposed a very lenient punishment or no punishment at all on the perpetrators of such crimes.", "2. The Government", "122. The Government stressed that the local authorities had provided immediate and tangible follow-up to the complaints lodged by the applicant and her mother. In this connection, subsequent to the filing of their complaints, the authorities had registered the complaints, conducted medical examinations, heard witnesses, conducted a survey of the scenes of the incidents and transmitted the complaints to the competent legal authorities. When necessary and depending on the gravity of the incident, the aggressor had been remanded in custody and had been convicted by the criminal courts. These proceedings had been carried out within the shortest time possible. The authorities had displayed diligence and were sensitive to the complaints, and no negligence had been shown.", "123. However, by withdrawing their complaints, the applicant and her mother had prevented the authorities from pursuing criminal proceedings against H.O. and had thus contributed to the impunity enjoyed by the aggressor. In this regard, it did not appear from the case file that the applicant and her mother had withdrawn their complaints as a result of any pressure exerted on them either by H.O. or the public prosecutor in charge of the investigation. The pursuit of criminal proceedings against the aggressor was dependent on the complaints lodged or pursued by the applicant, since the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more, within the meaning of Articles 456 § 4, 457 and 460 of the Criminal Code. Furthermore, in most cases the criminal courts had not convicted H.O. because the evidence against him was insufficient. Accordingly, the authorities could not be expected to separate the applicant and her husband and convict the latter while they were living together as a family, as this would amount to a breach of their rights under Article 8 of the Convention.", "124. As regards the petition filed by the applicant ’ s mother on 27 February 2002, the Government claimed that the content of this petition was no different to the previous ones and was of a general nature. There was no tangible fact or specific indication that her life was indeed in danger. In the petition the mother had failed to request any protection at all but she had merely requested a speedy examination of her complaint and the punishment of the applicant ’ s husband. Nonetheless, subsequent to the receipt of the petition dated 27 February 2002, the authorities had registered the complaint and had held a hearing on 27 May 2002, which had been followed by other hearings. Finally, following the killing of the applicant ’ s mother by H.O., the latter had been convicted and had received a heavy punishment.", "3. Interights, the third-party intervener", "125. Referring to international practice, Interights submitted that where the national authorities failed to act with due diligence to prevent violence against women, including violence by private actors, or to investigate, prosecute and punish such violence, the State might be responsible for such acts. The jus cogens nature of the right to freedom from torture and the right to life required exemplary diligence on the part of the State with respect to investigation and prosecution of these acts.", "126. In the context of domestic violence, victims were often intimidated or threatened into either not reporting the crime or withdrawing complaints. However, the responsibility to ensure accountability and guard against impunity lay with the State, not with the victim. International practice recognised that a broad range of interested persons, not just the victim, should be able to report and initiate an investigation into domestic violence. Further, international practice increasingly suggested that where there was sufficient evidence and it was considered in the public interest, prosecution of perpetrators of domestic violence should continue even when a victim withdrew her complaint. These developments indicated a trend away from requiring victim participation towards placing the responsibility for effective prosecution squarely on the State.", "127. While a decision not to prosecute in a particular case would not necessarily be in breach of due diligence obligations, a law or practice which automatically paralysed a domestic violence investigation or prosecution where a victim withdrew her complaint would be. In respect of these obligations and with reference to the Fatma Yıldırım v. Austria decision of the CEDAW Committee (cited in the relevant international materials section above ), it was submitted that the State had not only to ensure an appropriate legislative framework, but also to ensure effective implementation and enforcement practice.", "B. The Court ’ s assessment", "1. Alleged failure to protect the applicant ’ s mother ’ s life", "( a) Relevant principles", "128. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007 ).", "129. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention (see Osman, cited above, § 116).", "130. In the opinion of the Court, where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Furthermore, having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case ( ibid.).", "( b) Application of the above principles to the present case", "( i) Scope of the case", "131. On the above understanding, the Court will ascertain whether the national authorities have fulfilled their positive obligation to take preventive operational measures to protect the applicant ’ s mother ’ s right to life. In this connection, it must establish whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of the applicant ’ s mother from criminal acts by H.O. As it appears from the parties ’ submissions, a crucial question in the instant case is whether the local authorities displayed due diligence to prevent violence against the applicant and her mother, in particular by pursuing criminal or other appropriate preventive measures against H.O. despite the withdrawal of complaints by the victims.", "132. However, before embarking upon these issues, the Court must stress that the issue of domestic violence, which can take various forms ranging from physical to psychological violence or verbal abuse, cannot be confined to the circumstances of the present case. It is a general problem which concerns all member States and which does not always surface since it often takes place within personal relationships or closed circuits and it is not only women who are affected. The Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often casualties of the phenomenon, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case", "( ii) Whether the local authorities could have foreseen a lethal attack from H.O.", "133. Turning to the circumstances of the case, the Court observes that the applicant and her husband, H.O., had a problematic relationship from the very beginning. As a result of disagreements, H.O. resorted to violence against the applicant and the applicant ’ s mother therefore intervened in their relationship in order to protect her daughter. She thus became a target for H.O., who blamed her for being the cause of their problems (see paragraph 28 above). In this connection, the Court considers it important to highlight some events and the authorities ’ reaction.", "(i) On 10 April 1995 H.O. and A.O. beat up the applicant and her mother, causing severe physical injuries, and threatened to kill them. Although the applicant and her mother initially filed a criminal complaint about this event, the criminal proceedings against H.O. and A.O. were terminated because the victims withdrew their complaints (see paragraphs 9-11 above).", "(ii) On 11 April 1996 H.O. again beat the applicant, causing life-threatening injuries. H.O. was remanded in custody and a criminal prosecution was commenced against him for aggravated bodily harm. However, following the release of H.O., the applicant withdrew her complaint and the charges against H.O. were dropped (see paragraphs 13-19 above).", "(iii) On 5 February 1998 H.O. assaulted the applicant and her mother using a knife. All three were severely injured and the public prosecutor decided not to prosecute anyone on the ground that there was insufficient evidence (see paragraphs 20 and 21 above).", "(iv) On 4 March 1998 H.O. ran his car into the applicant and her mother. Both victims suffered severe injuries, and the medical reports indicated that the applicant was unfit for work for seven days and that her mother ’ s injuries were life-threatening. Subsequent to this incident, the victims asked the Chief Public Prosecutor ’ s Office to take protective measures in view of the death threats issued by H.O., and the applicant initiated divorce proceedings. The police investigation into the victims ’ allegations of death threats concluded that both parties had threatened each other and that the applicant ’ s mother had made such allegations in order to separate her daughter from H.O. for the purpose of revenge, and had also “wasted” the security forces ’ time. Criminal proceedings were instituted against H.O. for issuing death threats and attempted murder, but following H.O. ’ s release from custody (see paragraph 31 above) the applicant and her mother again withdrew their complaints. This time, although the prosecuting authorities dropped the charges against H.O. for issuing death threats and hitting the applicant, the Diyarbakır Assize Court convicted him for causing injuries to the mother and sentenced him to three months ’ imprisonment, which was later commuted to a fine (see paragraphs 23-36 above).", "(v) On 29 October 2001 H.O. stabbed the applicant seven times following her visit to her mother. H.O. surrendered to the police claiming that he had attacked his wife in the course of a fight caused by his mother-in-law ’ s interference with their marriage. After taking H.O. ’ s statements the police officers released him. However, the applicant ’ s mother applied to the Chief Public Prosecutor ’ s Office seeking the detention of H.O., and also claimed that she and her daughter had had to withdraw their complaints in the past because of death threats and pressure by H.O. As a result, H.O. was convicted of knife assault and sentenced to a fine (see paragraphs 37-44 above).", "(vi) On 14 November 2001 H.O. threatened the applicant but the prosecuting authorities did not press charges for lack of concrete evidence (see paragraphs 45 and 46 above).", "(vii) On 19 November 2001 the applicant ’ s mother filed a petition with the local public prosecutor ’ s office, complaining about the ongoing death threats and harassment by H.O., who had been carrying weapons. Again, the police took statements from H.O. and released him, but the public prosecutor pressed charges against him for making death threats (see paragraphs 47 ‑ 49 above ).", "(viii) Later, on 27 February 2002, the applicant ’ s mother applied to the public prosecutor ’ s office, informing him that H.O. ’ s threats had intensified and that their lives were in immediate danger. She therefore asked the police to take action against H.O. The police took statements from H.O. and the Diyarbakır Magistrate ’ s Court questioned him about the allegations only after the killing of the applicant ’ s mother. H.O. denied the allegations and claimed that he did not wish his wife to visit her mother, who was living an immoral life (see paragraphs 51-52 above).", "134. In view of the above events, it appears that there was an escalating violence against the applicant and her mother by H.O. The crimes committed by H.O. were sufficiently serious to warrant preventive measures and there was a continuing threat to the health and safety of the victims. When examining the history of the relationship, it was obvious that the perpetrator had a record of domestic violence and there was therefore a significant risk of further violence.", "135. Furthermore, the victims ’ situations were also known to the authorities and the mother had submitted a petition to the Diyarbakır Chief Public Prosecutor ’ s Office, stating that her life was in immediate danger and requesting the police to take action against H.O. However, the authorities ’ reaction to the applicant ’ s mother ’ s request was limited to taking statements from H.O. about the mother ’ s allegations. Approximately two weeks after this request, on 11 March 2002, he killed the applicant ’ s mother (see paragraph 54 above ).", "136. Having regard to the foregoing, the Court finds that the local authorities could have foreseen a lethal attack by H.O. While the Court cannot conclude with certainty that matters would have turned out differently and that the killing would not have occurred if the authorities had acted otherwise, it reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State (see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002 ). Therefore, the Court will next examine to what extent the authorities took measures to prevent the killing of the applicant ’ s mother.", "( iii) Whether the authorities displayed due diligence to prevent the killing of the applicant ’ s mother", "137. The Government claimed that each time the prosecuting authorities commenced criminal proceedings against H.O., they had to terminate those proceedings, in accordance with the domestic law, because the applicant and her mother withdrew their complaints. In their opinion, any further interference by the authorities would have amounted to a breach of the victims ’ Article 8 rights. The applicant explained that she and her mother had had to withdraw their complaints because of death threats and pressure exerted by H.O.", "138. The Court notes at the outset that there seems to be no general consensus among States Parties regarding the pursuance of the criminal prosecution against perpetrators of domestic violence when the victim withdraws her complaints (see paragraphs 87 and 88 above). Nevertheless, there appears to be an acknowledgement of the duty on the part of the authorities to strike a balance between a victim ’ s Article 2, Article 3 or Article 8 rights in deciding on a course of action. In this connection, having examined the practices in the member States (see paragraph 89 above), the Court observes that there are certain factors that can be taken into account in deciding to pursue the prosecution:", "– the seriousness of the offence;", "– whether the victim ’ s injuries are physical or psychological;", "– if the defendant used a weapon;", "– if the defendant has made any threats since the attack;", "– if the defendant planned the attack;", "– the effect (including psychological) on any children living in the household;", "– the chances of the defendant offending again;", "– the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved;", "– the current state of the victim ’ s relationship with the defendant and the effect on that relationship of continuing with the prosecution against the victim ’ s wishes;", "– the history of the relationship, particularly if there had been any other violence in the past; and", "– the defendant ’ s criminal history, particularly any previous violence.", "139. It can be inferred from this practice that the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the public interest, even if victims withdraw their complaints.", "140. As regards the Government ’ s argument that any attempt by the authorities to separate the applicant and her husband would have amounted to a breach of their right to family life, and bearing in mind that under Turkish law there is no requirement to pursue the prosecution in cases where the victim withdraws her complaint and did not suffer injuries which renders her unfit for work for ten or more days, the Court will now examine whether the local authorities struck a proper balance between the victim ’ s Article 2 and Article 8 rights.", "141. In this connection, the Court notes that H.O. resorted to violence from the very beginning of his relationship with the applicant. On many instances both the applicant and her mother suffered physical injuries and were subjected to psychological pressure, given the anguish and fear. For some assaults H.O. used lethal weapons, such as a knife or a shotgun, and he constantly issued death threats against the applicant and her mother. Having regard to the circumstances of the killing of the applicant ’ s mother, it may also be stated that H.O. had planned the attack, since he had been carrying a knife and a gun and had been wandering around the victim ’ s house on occasions prior to the attack (see paragraphs 47 and 54 above).", "142. The applicant ’ s mother became a target as a result of her perceived involvement in the couple ’ s relationship, and the couple ’ s children can also be considered as victims on account of the psychological effects of the ongoing violence in the family home. As noted above, in the instant case, further violence was not only possible but even foreseeable, given the violent behaviour and criminal record of H.O., his continuing threat to the health and safety of the victims and the history of violence in the relationship (see paragraphs 10, 13, 23, 37, 45, 47 and 51 above).", "143. In the Court ’ s opinion, it does not appear that the local authorities sufficiently considered the above factors when repeatedly deciding to discontinue the criminal proceedings against H.O. Instead, they seem to have given exclusive weight to the need to refrain from interfering with what they perceived to be a “family matter” (see paragraph 123 above). Moreover, there is no indication that the authorities considered the motives behind the withdrawal of the complaints. This is despite the applicant ’ s mother ’ s indication to the Diyarbakır Public Prosecutor that she and her daughter had withdrawn their complaints because of the death threats issued and pressure exerted on them by H.O. (see paragraph 39 above). It is also striking that the victims withdrew their complaints when H.O. was at liberty or following his release from custody (see paragraphs 9-12, 17-19, 31 and 35 above).", "144. As regards the Government ’ s argument that any further interference by the national authorities would have amounted to a breach of the victims ’ rights under Article 8 of the Convention, the Court notes its ruling in a similar case of domestic violence (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 83, 12 June 2008), where it held that the authorities ’ view that no assistance was required as the dispute concerned a “private matter” was incompatible with their positive obligations to secure the enjoyment of the applicants ’ rights. Moreover, the Court reiterates that, in some instances, the national authorities ’ interference with the private or family life of the individuals might be necessary in order to protect the health and rights of others or to prevent commission of criminal acts (see K.A. and A.D. v. Belgium, nos. 42758/98 and 45558/99, § 81, 17 February 2005). The seriousness of the risk to the applicant ’ s mother rendered such intervention by the authorities necessary in the present case.", "145. However, the Court regrets to note that the criminal investigations in the instant case were strictly dependent on the pursuance of complaints by the applicant and her mother on account of the domestic - law provisions in force at the relevant time; namely Articles 456 § 4, 457 and 460 of the now defunct Criminal Code, which prevented the prosecuting authorities from pursuing the criminal investigations because the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more (see paragraph 70 above). It observes that the application of the above- mentioned provisions and the cumulative failure of the domestic authorities to pursue criminal proceedings against H.O. deprived the applicant ’ s mother of the protection of her life and safety. In other words, the legislative framework then in force, particularly the minimum ten days ’ sickness unfitness requirement, fell short of the requirements inherent in the State ’ s positive obligations to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for the victims. The Court thus considers that, bearing in mind the seriousness of the crimes committed by H.O. in the past, the prosecuting authorities should have been able to pursue the proceedings as a matter of public interest, regardless of the victims ’ withdrawal of complaints (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraphs 80-82 above).", "146. The legislative framework preventing effective protection for victims of domestic violence aside, the Court must also consider whether the local authorities displayed due diligence to protect the right to life of the applicant ’ s mother in other respects.", "147. In this connection, the Court notes that despite the deceased ’ s complaint that H.O. had been harassing her, invading her privacy by wandering around her property and carrying knives and guns (see paragraph 47 above), the police and prosecuting authorities failed either to place H.O. in detention or to take other appropriate action in respect of the allegation that he had a shotgun and had made violent threats with it (see Kontrová, cited above, § 53). While the Government argued that there was no tangible evidence that the applicant ’ s mother ’ s life was in imminent danger, the Court observes that it is not in fact apparent that the authorities assessed the threat posed by H.O. and concluded that his detention was a disproportionate step in the circumstances; rather the authorities failed to address the issues at all. In any event, the Court would underline that in domestic violence cases perpetrators ’ rights cannot supersede victims ’ human rights to life and to physical and mental integrity (see the Fatma Yıldırım v. Austria and A.T. v. Hungary decisions of the CEDAW Committee, both cited above, §§ 12.1.5 and 9.3 respectively).", "148. Furthermore, in the light of the State ’ s positive obligation to take preventive operational measures to protect an individual whose life is at risk, it might have been expected that the authorities, faced with a suspect known to have a criminal record of perpetrating violent attacks, would take special measures consonant with the gravity of the situation with a view to protecting the applicant ’ s mother. To that end, the local public prosecutor or the judge at the Diyarbakır Magistrate ’ s Court could have ordered on his/her initiative one or more of the protective measures enumerated under sections 1 and 2 of Law no. 4320 (see paragraph 70 above). They could also have issued an injunction with the effect of banning H.O. from contacting, communicating with or approaching the applicant ’ s mother or entering defined areas (see, in this respect, Recommendation Rec(2002)5 of the Committee of the Ministers, paragraph 82 above). On the contrary, in response to the applicant ’ s mother ’ s repeated requests for protection, the police and the Diyarbakır Magistrate ’ s Court merely took statements from H.O. and released him (see paragraphs 47-52 above). While the authorities remained passive for almost two weeks apart from taking statements, H.O. shot dead the applicant ’ s mother.", "149. In these circumstances, the Court concludes that the national authorities cannot be considered to have displayed due diligence. They therefore failed in their positive obligation to protect the right to life of the applicant ’ s mother within the meaning of Article 2 of the Convention.", "2. The effectiveness of the criminal investigation into the killing of the applicant ’ s mother", "150. The Court reiterates that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that an efficient and independent judicial system should be set in place by which the cause of a murder can be established and the guilty parties punished (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 -I ). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002-II ). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see Yaşa v. Turkey, 2 September 1998, §§ 102 ‑ 04, Reports 1998-VI, and Çakıcı v. Turkey [GC], no. 2 3657/94, §§ 80-87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395, ECHR 2001-VII).", "151. The Court notes that a comprehensive investigation has indeed been carried out by the authorities into the circumstances surrounding the killing of the applicant ’ s mother. However, although H.O. was tried and convicted of murder and illegal possession of a firearm by the Diyarbakır Assize Court, the proceedings are still pending before the Court of Cassation (see paragraphs 57 and 58 above). Accordingly, the criminal proceedings in question, which have already lasted more than six years, cannot be described as a prompt response by the authorities in investigating an intentional killing where the perpetrator had already confessed to the crime.", "3. Conclusion", "152. In the light of the foregoing, the Court considers that the above-mentioned failures rendered recourse to criminal and civil remedies equally ineffective in the circumstances. It accordingly dismisses the Government ’ s preliminary objection (see paragraph 114 above) based on non-exhaustion of these remedies.", "153. Moreover, the Court concludes that the criminal - law system, as applied in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of the unlawful acts committed by H.O. The obstacles resulting from the legislation and failure to use the means available undermined the deterrent effect of the judicial system in place and the role it was required to play in preventing a violation of the applicant ’ s mother ’ s right to life as enshrined in Article 2 of the Convention. The Court reiterates in this connection that, once the situation has been brought to their attention, the national authorities cannot rely on the victim ’ s attitude for their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim (see Osman, cited above, § 116). There has therefore been a violation of Article 2 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "154. The applicant complained that she had been subjected to violence, injury and death threats several times but that the authorities were negligent towards her situation, which caused her pain and fear in violation of Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties ’ submissions", "155. The applicant alleged that the injuries and anguish she had suffered as a result of the violence inflicted upon her by her husband had amounted to torture within the meaning of Article 3 of the Convention. Despite the ongoing violence and her repeated requests for help, however, the authorities had failed to protect her from her husband. It was as though the violence had been inflicted under State supervision. The insensitivity and tolerance shown by the authorities in the face of domestic violence had made her feel debased, hopeless and vulnerable.", "156. The Government argued that the applicant ’ s withdrawal of complaints and her failure to cooperate with the authorities had prevented the prosecuting authorities from pursuing the criminal proceedings against her husband. They further claimed that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women with the cooperation of public institutions and non-governmental organisations (NGOs). In this respect, the applicant could have petitioned the Directorate of Social Services and Child Protection Agency for admission to one of the guest houses. The addresses of these guest houses were secret and they were protected by the authorities.", "157. Interights maintained that States were required to take reasonable steps to act immediately to stop ill-treatment, whether by public or private actors, of which they have known or ought to have known. Given the opaque nature of domestic violence and the particular vulnerability of women who are too often frightened to report such violence, it is submitted that a heightened degree of vigilance is required of the State.", "B. The Court ’ s assessment", "1. Applicable principles", "158. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello - Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C ).", "159. As regards the question whether the State could be held responsible, under Article 3, for the ill-treatment inflicted on persons by non-state actors, the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997 ‑ III ). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI ).", "2. Application of the above principles to the case", "160. The Court considers that the applicant may be considered to fall within the group of “vulnerable individuals” entitled to State protection (see A. v. the United Kingdom, cited above, § 22). In this connection, it notes the violence suffered by the applicant in the past, the threats issued by H.O. following his release from prison and her fear of further violence as well as her social background, namely the vulnerable situation of women in south-east Turkey.", "161. The Court observes also that the violence suffered by the applicant, in the form of physical injuries and psychological pressure, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.", "162. Therefore, the Court must next determine whether the national authorities have taken all reasonable measures to prevent the recurrence of violent attacks against the applicant ’ s physical integrity.", "163. In carrying out this scrutiny, and bearing in mind that the Court provides final authoritative interpretation of the rights and freedoms defined in Section I of the Convention, the Court will consider whether the national authorities have sufficiently taken into account the principles flowing from its judgments on similar issues, even when they concern other States.", "164. Furthermore, in interpreting the provisions of the Convention and the scope of the State ’ s obligations in specific cases (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85 and 86, ECHR 2008) the Court will also look for any consensus and common values emerging from the practices of European States and specialised international instruments, such as the CEDAW, as well as giving heed to the evolution of norms and principles in international law through other developments such as the Belém do Pará Convention, which specifically sets out States ’ duties relating to the eradication of gender-based violence.", "165. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S., cited above, § 82). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007).", "166. Turning to its examination of the facts, the Court notes that the local authorities, namely the police and public prosecutors, did not remain totally passive. After each incident involving violence, the applicant was taken for medical examination and criminal proceedings were instituted against her husband. The police and prosecuting authorities questioned H.O. in relation to his criminal acts, placed him in detention on two occasions, indicted him for issuing death threats and inflicting actual bodily harm and, subsequent to his conviction for stabbing the applicant seven times, sentenced him to pay a fine (see paragraphs 13, 24 and 44 above).", "167. However, none of these measures were sufficient to stop H.O. from perpetrating further violence. In this respect, the Government blamed the applicant for withdrawing her complaints and failing to cooperate with the authorities, which prevented the latter from continuing the criminal proceedings against H.O., pursuant to the domestic law provisions requiring the active involvement of the victim (see paragraph 70 above).", "168. The Court reiterates its opinion in respect of the complaint under Article 2 of the Convention, namely that the legislative framework should have enabled the prosecuting authorities to pursue the criminal investigations against H.O. despite the withdrawal of complaints by the applicant on the basis that the violence committed by H.O. was sufficiently serious to warrant prosecution and that there was a constant threat to the applicant ’ s physical integrity (see paragraphs 137-48 above).", "169. However, it cannot be said that the local authorities displayed the required diligence to prevent the recurrence of violent attacks against the applicant, since the applicant ’ s husband perpetrated them without hindrance and with impunity to the detriment of the rights recognised by the Convention (see, mutatis mutandis, Maria da Penha v. Brazil, Case 12.051, 16 April 2001, Report No. 54/01, Inter-Am. Ct. H.R., Annual Report 2000, OEA/Ser.L/V.II.111 Doc. 20 rev. (2000), §§ 42-44). By way of example, the Court notes that, following the first major incident (see paragraphs 9 and 10 above ), H.O. again beat the applicant severely, causing her injuries which were sufficient to endanger her life, but he was released pending trial “considering the nature of the offence and the fact that the applicant had regained full health”. The proceedings were ultimately discontinued because the applicant withdrew her complaints (see paragraphs 13 and 19 above). Again, although H.O. assaulted the applicant and her mother using a knife and caused them severe injuries, the prosecuting authorities terminated the proceedings without conducting any meaningful investigation (see paragraphs 20 and 21 above). Likewise, H.O. ran his car into the applicant and her mother, this time causing injuries to the former and life-threatening injuries to the latter. He spent only twenty-five days in prison and received a fine for inflicting serious injuries on the applicant ’ s mother (see paragraphs 23-36 above). Finally, the Court was particularly struck by the Diyarbakır Magistrate ’ s Court ’ s decision to impose merely a small fine, which could be paid by instalments, on H.O. as punishment for stabbing the applicant seven times (see paragraphs 37 and 44 above ).", "170. In the light of the foregoing, the Court considers that the response to the conduct of the applicant ’ s former husband was manifestly inadequate to the gravity of the offences in question (see, mutatis mutandis, Ali and Ayşe Duran v. Turkey, no. 42942/02, § 54, 8 April 2008). It therefore observes that the judicial decisions in this case reveal a lack of efficacy and a certain degree of tolerance, and had no noticeable preventive or deterrent effect on the conduct of H.O.", "171. As regards the Government ’ s assertion that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women, the Court notes that until 14 January 1998 – the date on which Law no. 4320 entered into force – Turkish law did not provide for specific administrative and policing measures designed to protect vulnerable persons against domestic violence. Even after that date, it does not appear that the domestic authorities effectively applied the measures and sanctions provided by that Law with a view to protecting the applicant against her husband. Taking into account the overall amount of violence perpetrated by H.O., the public prosecutor ’ s office ought to have applied on its own motion the measures contained in Law no. 4320, without expecting a specific request to be made by the applicant for the implementation of that Law.", "172. This being said, even assuming that the applicant had been admitted to one of the guest houses, as suggested by the Government, the Court notes that this would only be a temporary solution. Furthermore, it has not been suggested that there was any official arrangement to provide for the security of the victims staying in those houses.", "173. Finally, the Court notes with grave concern that the violence suffered by the applicant had not come to an end and that the authorities had continued to display inaction. In this connection, the Court points out that, immediately after his release from prison, H.O. again issued threats against the physical integrity of the applicant (see paragraph 59 above). Despite the applicant ’ s petition of 15 April 2008 requesting the prosecuting authorities to take measures for her protection, nothing was done until after the Court requested the Government to provide information about the measures that have been taken by their authorities. Following this request, on the instructions of the Ministry of Justice, the Diyarbakır Public Prosecutor questioned H.O. about the death threats issued by him and took statements from the applicant ’ s current boyfriend (see paragraphs 60-67 above).", "174. The applicant ’ s legal representative again informed the Court that the applicant ’ s life was in immediate danger, given the authorities ’ continuous failure to take sufficient measures to protect her client (see paragraph 68 above). It appears that following the transmission of this complaint and the Court ’ s request for an explanation in this respect, the local authorities have now put in place specific measures to ensure the protection of the applicant (see paragraph 69 above).", "175. Having regard to the overall ineffectiveness of the remedies suggested by the Government in respect of the complaints under Article 3, the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies.", "176. The Court concludes that there has been a violation of Article 3 of the Convention as a result of the State authorities ’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant ’ s personal integrity by her husband.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLES 2 AND 3", "177. The applicant complained under Article 14 of the Convention, read in conjunction with Articles 2 and 3, that she and her mother had been discriminated against on the basis of their gender.", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "1. The applicant", "178. The applicant alleged that the domestic law of the respondent State was discriminatory and insufficient to protect women, since a woman ’ s life was treated as inferior in the name of family unity. The former Civil Code, which was in force at the relevant time, contained numerous provisions distinguishing between men and women, such as the husband being the head of the family, his wishes taking precedence as the representative of the family union. The then Criminal Code also treated women as second-class citizens. A woman was viewed primarily as the property of society and of the male within the family. The most important indicator of this was that sexual offences were included in the section entitled “Crimes Relating to General Morality and Family Order”, whereas in fact sexual offences against women are direct attacks on a woman ’ s personal rights and freedoms. It was because of this perception that the Criminal Code imposed lighter sentences on persons who had murdered their wives for reasons of family honour. The fact that H.O. received a sentence of fifteen years is a consequence of that classification in the Criminal Code.", "179. Despite the reforms carried out by the Government in the areas of the Civil Code and Criminal Code in 2002 and 2004 respectively, domestic violence inflicted by men is still tolerated and impunity is granted to the aggressors by judicial and administrative bodies. The applicant and her mother had been victims of violations of Articles 2, 3, 6 and 13 of the Convention merely because of the fact that they were women. In this connection, the applicant drew the Court ’ s attention to the improbability of any men being a victim of similar violations.", "2. The Government", "180. The Government averred that there was no gender discrimination in the instant case, since the violence in question was mutual. Furthermore, it cannot be claimed that there was institutionalised discrimination resulting from the criminal or family laws or from judicial and administrative practice. Nor could it be argued that the domestic law contained any formal and explicit distinction between men and women. It had not been proven that the domestic authorities had not protected the right to life of the applicant because she was a woman.", "181. The Government further noted that subsequent to the reforms carried out in 2002 and 2004, namely revision of certain provisions of the Civil Code and the adoption of a new Criminal Code, and the entry into force of Law no. 4320, Turkish law provided for sufficient guarantees, meeting international standards, for the protection of women against domestic violence. The Government concluded that this complaint should be declared inadmissible for failure to exhaust domestic remedies or as being manifestly ill-founded since these allegations had never been brought to the attention of the domestic authorities and, in any event, were devoid of substance.", "3. Interights, the third-party intervener", "182. Interights submitted that the failure of the State to protect against domestic violence would be tantamount to failing in its obligation to provide equal protection of the law based on sex. They further noted that there was increasing recognition internationally – both within the United Nations and Inter-American systems – that violence against women was a form of unlawful discrimination.", "B. The Court ’ s assessment", "1. The relevant principles", "183. In its recent ruling in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, 13 November 2007, §§ 175-80, ECHR 2007 ‑ IV ), the Court laid down the following principles on the issue of discrimination:", "“175. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). ... The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see Hugh Jordan [ v. the United Kingdom, no. 24746/94 ], § 154 [, 4 May 2001 ], and Hoogendijk [ v. the Netherlands (dec.), no. 58461/00, 6 January 2005 ] ), and that discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami [ v. Malta, no. 17209/02 ], § 76 [, ECHR 2006- VIII] ).", "...", "177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III, and Timishev [ v. Russia, nos. 55762/00 and 55974/00], § 57 [, ECHR 2005-XII] ).", "178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others ( [ v. Bulgaria [GC], nos. 43577/98 and 43579/98 ], § 147 [, ECHR 2005-VII] ) that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.", "179. The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation – see Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003 ‑ V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002-IV). In Nachova and Others ( cited above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case, in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services.", "180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory ( see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation ( see Hoogendijk, cited above, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations.", "Thus, in Hoogendijk the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.”", "2. Application of the above principles to the facts of the present case", "( a ) The meaning of discrimination in the context of domestic violence", "184. The Court notes at the outset that when it considers the object and purpose of the Convention provisions, it also takes into account the international-law background to the legal question before it. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty (see Saadi v. the United Kingdom [GC], no. 13229/03, § 63, ECHR 2008, cited in Demir and Baykara, cited above, § 76).", "185. In this connection, when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case-law (see paragraph 183 above), the Court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women.", "186. In that context, the CEDAW defines discrimination against women under Article 1 as", "“... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”", "187. The CEDAW Committee has reiterated that violence against women, including domestic violence, is a form of discrimination against women (see paragraph 74 above).", "188. The United Nations Commission on Human Rights expressly recognised the nexus between gender-based violence and discrimination by stressing in resolution 2003/45 that “all forms of violence against women occur within the context of de jure and de facto discrimination against women and the lower status accorded to women in society and are exacerbated by the obstacles women often face in seeking remedies from the State.”", "189. Furthermore, the Belém do Pará Convention, which is so far the only regional multilateral human rights treaty to deal solely with violence against women, describes the right of every woman to be free from violence as encompassing, among others, the right to be free from all forms of discrimination.", "190. Finally, the Inter-American Commission also characterised violence against women as a form of discrimination owing to the State ’ s failure to exercise due diligence to prevent and investigate a domestic violence complaint (see Maria da Penha v. Brazil, cited above, § 80).", "191. It transpires from the above-mentioned rules and decisions that the State ’ s failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional.", "( b ) The approach to domestic violence in Turkey", "192. The Court observes that although the Turkish law then in force did not make explicit distinction between men and women in the enjoyment of rights and freedoms, it needed to be brought into line with international standards in respect of the status of women in a democratic and pluralistic society. Like the CEDAW Committee (see the Concluding Comments on the combined fourth and fifth periodic report of Turkey CEDAW/C/TUR/4 ‑ 5 and Corr.1, 15 February 2005, §§ 12-21), the Court welcomes the reforms carried out by the Government, particularly the adoption of Law no. 4320 which provides for specific measures for protection against domestic violence. It thus appears that the alleged discrimination at issue was not based on the legislation per se but rather resulted from the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence and judicial passivity in providing effective protection to victims. The Court notes that the Turkish Government have already recognised these difficulties in practice when discussing the issue before the CEDAW Committee ( ibid. ).", "193. In that regard, the Court notes that the applicant produced reports and statistics prepared by two leading NGOs, the Diyarbakır Bar Association and Amnesty International, with a view to demonstrating discrimination against women (see paragraphs 94-97 and 99-104 above). Bearing in mind that the findings and conclusions reached in these reports have not been challenged by the Government at any stage of the proceedings, the Court will consider them together with its own findings in the instant case (see Hoogendijk v. the Netherlands (dec.), no. 54861/00, 6 January 2005, and Zarb Adami v. Malta, no. 17209/02, §§ 77-78, ECHR 2006-VIII ).", "194. Having examined these reports, the Court finds that the highest number of reported victims of domestic violence is in Diyarbakır, where the applicant lived at the relevant time, and that the victims were all women who suffered mostly physical violence. The great majority of these women were of Kurdish origin, illiterate or of a low level of education and generally without any independent source of income (see paragraph 98 above).", "195. Furthermore, there appear to be serious problems in the implementation of Law no. 4320, which was relied on by the Government as one of the remedies for women facing domestic violence. The research conducted by the above- mentioned organisations indicates that when victims report domestic violence to police stations, police officers do not investigate their complaints but seek to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers consider the problem as a “family matter with which they cannot interfere” (see paragraphs 92, 96 and 102 above).", "196. It also transpires from these reports that there are unreasonable delays in issuing injunctions by the courts, under Law no. 4320, because the courts treat them as a form of divorce action and not as an urgent action. Delays are also frequent when it comes to serving injunctions on the aggressors, given the negative attitude of the police officers (see paragraphs 91-93, 95 and 101 above). Moreover, the perpetrators of domestic violence do not seem to receive dissuasive punishments, because the courts mitigate sentences on the grounds of custom, tradition or honour (see paragraphs 103 and 106 above).", "197. As a result of these problems, the above- mentioned reports suggest that domestic violence is tolerated by the authorities and that the remedies indicated by the Government do not function effectively. Similar findings and concerns were expressed by the CEDAW Committee when it noted “the persistence of violence against women, including domestic violence, in Turkey ” and called upon the respondent State to intensify its efforts to prevent and combat violence against women. It further underlined the need to fully implement and carefully monitor the effectiveness of Law no. 4320 on the protection of the family, and of related policies in order to prevent violence against women, to provide protection and support services to the victims, and punish and rehabilitate offenders (see the Concluding Comments, § 28).", "198. In the light of the foregoing, the Court considers that the applicant has been able to show, supported by unchallenged statistical information, the existence of a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence.", "( c ) Whether the applicant and her mother have been discriminated against on account of the authorities ’ failure to provide equal protection of law", "199. The Court has established that the criminal ‑ law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of unlawful acts by H.O. against the personal integrity of the applicant and her mother and thus violated their rights under Articles 2 and 3 of the Convention.", "200. Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence (see, in particular, section 9 of the CEDAW Committee ’ s General Recommendation No. 19, cited at paragraph 74 above).", "201. Taking into account the ineffectiveness of domestic remedies in providing equal protection of law to the applicant and her mother in the enjoyment of their rights guaranteed by Articles 2 and 3 of the Convention, the Court holds that there existed special circumstances which absolved the applicant from her obligation to exhaust domestic remedies. It therefore dismisses the Government ’ s objection on non-exhaustion in respect of the complaint under Article 14 of the Convention.", "202. In view of the above, the Court concludes that there has been a violation of Article 14 of the Convention, read in conjunction with Articles 2 and 3, in the instant case.", "V. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION", "203. Relying on Articles 6 and 13 of the Convention, the applicant complained that the criminal proceedings brought against H.O. were ineffective and had failed to provide sufficient protection for her and her mother.", "204. The Government contested that argument.", "205. Having regard to the violations found under Articles 2, 3 and 14 of the Convention (see paragraphs 153, 17 6 and 202 above), the Court does not find it necessary to examine the same facts also in the context of Articles 6 and 13.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "206. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "207. The applicant claimed 70,000 Turkish liras (TRL) (approximately 35,000 euros (EUR)) in respect of pecuniary damage resulting from the death of her mother and TRL 250,000 (approximately EUR 125,000) for non ‑ pecuniary damage. She explained that subsequent to the killing of her mother she had been deprived of any economic support from her. The killing of her mother and ongoing violence perpetrated by her former husband had caused her stress and anguish, as well as irreparable damage to her psychological well-being and self-esteem.", "208. The Government submitted that the amounts claimed were not justified in the circumstances of the case. They claimed, in the alternative, that the amounts were excessive and that any award to be made under this head should not lead to unjust enrichment.", "209. As regards the applicant ’ s claim for pecuniary damage, the Court notes that while the applicant has demonstrated that on a number of occasions she had sought shelter at her mother ’ s home, it has not been proven that she was in any way financially dependent on her. However, this does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention (see Aksoy v. Turkey, 18 December 1996, § 113, Reports 1996-VI, where the pecuniary claims made by the applicant prior to his death in respect of loss of earnings and medical expenses arising out of detention and torture were taken into account by the Court in making an award to the applicant ’ s father, who had continued the application). In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant ’ s mother. The Court is not convinced that the applicant ’ s mother incurred any losses before her death. Thus, the Court does not find it appropriate in the circumstances of this case to make any award to the applicant in respect of pecuniary damage.", "210. On the other hand, as regards the non-pecuniary damage, the Court notes that the applicant has undoubtedly suffered anguish and distress on account of the killing of her mother and the authorities ’ failure to undertake sufficient measures to prevent the domestic violence perpetrated by her husband and to give him deterrent punishment. Ruling on an equitable basis, the Court awards the applicant EUR 30,000 in respect of the damage sustained by her as a result of violations of Articles 2, 3 and 14 of the Convention.", "B. Costs and expenses", "211. The applicant also claimed TRL 15,500 (approximately EUR 7,750) for the costs and expenses incurred before the Court. This included fees and costs incurred in respect of the preparation of the case (38 hours ’ legal work) and attendance at the hearing before the Court in Strasbourg as well as other expenses, such as telephone, fax, translation or stationary.", "212. The Government submitted that in the absence of any supporting documents the applicant ’ s claim under this head should be rejected.", "213. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,500 for costs and expenses for the proceedings before the Court, less EUR 1,494 received by way of legal aid from the Council of Europe.", "C. Default interest", "214. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1968 and lives in Colognola ai Colli, in the province of Verona.", "7. The facts of the case, as submitted by the parties, can be summarised as follows.", "A. Background to the case", "8. The applicant ’ s relationship with J.C.N., a Kenyan national, began in 2003. They had two children, P. and A., who were born in August 2006 and March 2008 respectively.", "9. The applicant submitted that her relationship with J.C.N. deteriorated rapidly. In 2008 they undertook relationship therapy, which was interrupted because J.C.N. was suffering from depression. He also took no interest in the business he had set up with the applicant in 2006.", "10. According to the domestic court ’ s judgments, on 16 November 2008 J.C.N. hit the applicant several times and threatened her with a knife and a pair of scissors during a violent argument concerning the relationship that she had begun with a common friend. J.C.N. locked the applicant in the flat and took the keys in order to prevent her from leaving. Their children were asleep in the flat and one of them, awakened by the screaming, witnessed part of the aggression.", "11. The carabinieri, called by the neighbours, intervened at the couple ’ s home. The applicant was taken to hospital in a state of shock. She was diagnosed with, inter alia, concussion, injuries to the head and several bruises all over her body.", "B. Criminal proceedings against the applicant ’ s former partner", "12. J.C.N. was arrested and detained. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. He subsequently asked the authorities in charge of the preliminary investigation to adopt the summary procedure ( giudizio abbreviato ) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”).", "13. On 2 April 2009 J.C.N. was found guilty and sentenced to four years and eight months ’ detention.", "14. The applicant did not join the criminal proceedings as a civil party.", "15. On 11 December 2009 the Verona Court of Appeal reduced the sentence to three years and four months ’ detention.", "16. By a decision issued on 7 October 2010 the Court of Cassation dismissed an appeal lodged by J.C.N.", "C. Execution of the sentence", "17. On 6 October 2009 J.C.N. applied to the Venice Court of Appeal seeking to serve the remainder of his sentence under house arrest at a reception centre located in the municipality where the applicant was living (Colognola ai Colli).", "18. On 3 November 2009 the Venice Court of Appeal dismissed J.C.N. ’ s application, referring, inter alia, to the proximity of the facility indicated (2 km) to the applicant ’ s home, the psychological condition of J.C.N. and the risk that he might try to contact the applicant.", "19. On 1 June 2010 J.C.N. lodged another application for house arrest, indicating a reception centre (“Don Nicola”) located in Soave, a different municipality of the province of Verona, about 15 km from the applicant ’ s home. The centre was managed by a non - profit -making organisation called Sulle Orme.", "20. The Venice Court of Appeal ordered an inspection of the facility indicated by J.C.N. in order to assess its suitability to host him. The inspection was carried out by the carabinieri, who highlighted that the facility in question had already hosted persons whose prison sentence had been replaced by house arrest, without any complications having arisen. They further stressed that they carried out regular surveillance of the persons hosted by the centre. They consequently concluded that the facility was suitable to host the applicant ’ s former partner.", "21. On 18 June 2010 the Venice Court of Appeal granted J.C.N. ’ s request.", "22. On 24 September 2010 the Venice Court of Appeal granted J.C.N. permission to work outside the reception centre during the grape - harvest season.", "23. On 2 August 2011 J.C.N. finished serving his sentence and was released. He decided to continue residing at the reception centre.", "D. Proceedings before the Venice Juvenile Court", "24. On 24 April 2009 the applicant lodged an application with the Venice Juvenile Court seeking sole custody of her children and the forfeiture of her former partner ’ s parental rights.", "25. On 15 May 2009 the applicant was granted sole custody of her children. In February 2010, after having heard both the applicant and her former partner, the Venice Juvenile Court ordered the forfeiture of J.C.N. ’ s parental rights and prohibited any form of contact between him and the children. The court stressed that J.C.N. could apply for the restoration of his parental rights once he had served his sentence and followed a path aimed at acquiring the parental skills he had been shown to be lacking.", "26. In January 2012 J.C.N. applied to the Venice Juvenile Court seeking the restoration of his parental rights and the suspension of his financial obligation towards his children. No information was submitted to the Court about the outcome of the application.", "E. Situation of the applicant following the assault", "27. The applicant claimed that following the violence suffered at the hands of her former partner, she lived in a state of constant anguish and fear of a recurrence of the violence against her and her children. She underwent psychological support therapy, as did her son P., who had witnessed the violence.", "28. On an unspecified date the applicant turned for help to an association ( Associazione scaligera vittime di reato – ASAV ) that specialised in providing material, psychological and legal assistance to victims of crime.", "29. The applicant visited her former partner five times during his imprisonment, which lasted from 18 November 2008 to 18 June 2010.", "30. From the material submitted by the applicant, it appears that after J.C.N. was released he and the applicant resumed contact in the form of an exchange of emails." ]

[ "II. RELEVANT INTERNATIONAL MATERIAL", "31. A summary of the relevant international material concerning protection from domestic violence and discrimination against women has been made in the case of Opuz v. Turkey ( no. 33401/02, §§ 72-86, ECHR 2009).", "32. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention.", "33. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women, such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence were able to institute proceedings, make provisions to ensure that criminal proceedings could be instituted by the public prosecutor, and encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest. Member States should also ensure, where necessary, that measures were taken to protect victims effectively against threats and possible acts of revenge, and take specific measures to ensure that children ’ s rights were protected during proceedings.", "34. With regard to domestic violence, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas. They should also penalise all breaches of the measures imposed on the perpetrator and establish a compulsory protocol so that the police, medical and social services followed the same procedure.", "35. In its General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/2010/47/GC.2), the Committee on the Elimination of Discrimination against Women found that “States parties have a due diligence obligation to prevent, investigate, prosecute and punish ... acts of gender based violence”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "36. Citing Article 3 of the Convention alone and in conjunction with Article 14 of the Convention, the applicant complained of the inaction of the Italian authorities, which had failed to protect and support her after the violence she had suffered. She claimed that those omissions and the inadequacy of the domestic legislative framework in combating domestic violence proved that she had been discriminated against on the basis of her gender.", "37. The Articles referred to provide as follows :", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "38. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "39. The applicant submitted that after the serious incident of violence in November 2008, the authorities had failed to assist and support her and to protect her from any repetition of such violence.", "40. The applicant argued that the violence she had suffered at the hands of her former partner had had a traumatic effect on her, causing her strong psychological distress from which she had not yet recovered. She had been unable to continue living in the same flat where the violence had occurred and had moved to a different floor of the same building. She had experienced difficulty sleeping and she and her son P. had undergone psychological support therapy.", "41. The applicant further contended that the authorities had not informed her about the status of the criminal proceedings against J.C.N. In particular, she had not been informed when he had been granted house arrest. She claimed to have become aware of that when her former partner called her using the phone of a common friend. The applicant also criticised the conduct of the carabinieri who, when asked for explanations about the house arrest granted to J.C.N., had limited themselves to reassuring her about the suitability and safety of the chosen facility.", "42. Furthermore, the applicant submitted that at the beginning of his detention J.C.N. had sent several letters to her which she had perceived as threatening. Such conduct had ceased once his lawyer had been informed.", "43. The applicant also claimed that while serving his sentence, her former partner had not followed any psychological recovery programme and that he continued to constitute a threat to her life and the lives of her children.", "44. The applicant also argued that the proximity to her home of the facility hosting J.C.N. while he was under house arrest had contributed to an increase in her anguish and her fear that he might attack her again. She pointed out that his previous application for house arrest had been dismissed on the grounds, inter alia, of the proximity of the facility indicated to her home.", "45. In this context the applicant claimed that on 25 June 2010 she had been intimidated by the manager of the reception centre, “Don Nicola ”, who had made indirect reference to his power to influence the proceedings concerning parental rights in order to prevent her from selling the company she co-owned with her former partner.", "46. Moreover, the applicant pointed out that she had been contacted by a worker of the centre to set up a telephone conversation between J.C.N. and his son P. for the birthday of the latter on 2 August 2010. In her view, both of those episodes served to cast doubt on the choice of the reception centre in question. Lastly, she complained that after J.C.N. had finished serving his sentence, he had continued to reside at the same facility and had resumed contact with her in the form of an email exchange, which she perceived as inappropriate.", "47. The applicant pointed out that in the light of the above she was in a position of vulnerability and that the authorities had failed to assist and support her, having omitted to put in place adequate measures to protect her from a repeat attack by J.C.N. She highlighted that children and other vulnerable individuals, in particular, were entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity.", "48. The applicant maintained that the violence she had suffered and the consequent psychological distress had attained a sufficient level of severity to be considered as ill-treatment within the scope of Article 3 of the Convention.", "(b) The Government", "49. On the merits of the case the Government submitted that the authorities had taken all reasonable measures to punish the perpetrator of the violence, to protect and support the applicant from the risk of violence and to prevent such violence from recurring.", "50. The Government remarked that J.C.N. had been arrested and remanded in custody immediately after the attack on the applicant. The criminal proceedings thereafter had been conducted with due expedition and he had been sentenced to three years and four months ’ detention, a sentence proportionate to the crime with which he had been charged. The applicant ’ s former partner had served the majority of his sentence in a prison facility and only in June 2010 had been granted house arrest at a reception centre managed by an organisation called Sulle Orme.", "51. The Government pointed out that a person under house arrest was still considered to be in detention; he did not enjoy freedom of movement and any violation of the house arrest conditions (set up by the post-sentencing judge) constituted a further crime. Moreover, J.C.N. had been placed in a facility the suitability of which, in terms of both security and rehabilitation prospects, had been carefully assessed by the authorities involved, in line with the gravity of the crime he had committed.", "52. The Government argued that J.C.N. had participated in a programme of psychological support and rehabilitation organised by the Municipality of Soave and that the reports thereon had been positive.", "53. In relation to one of the episodes referred to by the applicant to prove the inadequacy of the chosen facility (see paragraph 46 above), the Government, while not contesting its truthfulness, highlighted that the applicant had failed to report it to the authorities, thus denying them the possibility to intervene. The Government did not take a stand on the other episode referred to by the applicant (see paragraph 45 above).", "54. As far as the contacts between the applicant and her former partner (following his release) were concerned, the Government submitted that if, as she claimed, the applicant had perceived such contacts as inappropriate or threatening, she had had at her disposal a specific protection against the crime of stalking. She had not availed herself of such a protection.", "55. Lastly, the Government stressed that in the Verona province there were several centres specialising in the support and assistance of victims of violent crimes and that the applicant could easily have had access to one of them.", "56. The Government concluded that the applicant had not submitted any valid arguments, facts or evidence corroborating the alleged lack of support and protection on the part of the authorities.", "2. The Court ’ s assessment", "(a) General principles", "57. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello ‑ Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C; Opuz v. Turkey, no. 33401/02, § 158, 9 June 2009; and Eremia v. The Republic of Moldova, no. 3564/11, § 48, 28 May 2013).", "58. The Court further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on the States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI; Opuz, cited above, § 159; and Eremia, cited above, § 48). This obligation should include effective protection of, inter alios, an identified individual or individuals from the criminal acts of a third party, as well as reasonable steps to prevent ill-treatment of which the authorities knew or ought to have known (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998 ‑ VIII; E. and Others v. the United Kingdom, no. 33218/96, § 88, 26 November 2002; and J.L. v. Latvia, no. 23893/06, § 64, 17 April 2012). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, cited above, § 22).", "59. It is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S. v. Bulgaria, no. 71127/01, § 82, 12 June 2008). At the same time, under Article 19 of the Convention and in accordance with the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007).", "(b) Application of these general principles in the present case", "(i) Whether the applicant was subjected to ill- treatment within the meaning of Article 3 of the Convention", "60. The Court considers that the applicant was a “vulnerable individual” having regard to the physical injuries she suffered on 16 November 2008 and her fear of further violence.", "61. The Court considers that such violence and the psychological consequences of it were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.", "62. In such circumstances, the Court finds that Article 3 of the Convention was applicable to the present case. It must therefore determine whether the authorities ’ actions in response to the applicant ’ s complaints complied with the requirements of that provision and whether the national authorities took all reasonable measures to prevent the recurrence of violent attacks against the applicant ’ s physical integrity.", "(ii) Whether the authorities complied with their positive obligations under Article 3 of the Convention", "63. The States ’ positive obligations under Article 3 of the Convention include, on the one hand, setting up a legislative framework aimed at preventing and punishing ill-treatment by private individuals and, on the other hand, when aware of an imminent risk of ill-treatment of an identified individual or when ill-treatment has already occurred, applying the relevant laws in practice, thus affording protection to the victims and punishing those responsible for ill-treatment ( see Eremia v. The Republic of Moldova, cited above, § 56).", "64. Turning to its examination of the facts, the Court notes that the authorities, namely the carabinieri, the public prosecutors and the domestic courts did not remain passive after the incident on 16 November 2008. The applicant ’ s former partner was immediately arrested and remanded in custody. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. The criminal proceedings were conducted with due expedition and he was sentenced to three years and four months ’ detention (see paragraphs 1 2 -1 6 above).", "65. The Court considers that in relation to the custody of the couple ’ s children, the response of the authorities was also effective. The applicant was granted sole custody and her former partner ’ s parental rights were forfeited (see paragraphs 2 4 -2 6 above).", "66. As far as the protection afforded to the applicant is concerned, the Court cannot but observe that the knowledge of the presence of her former partner at some 15 kilometers from her residence had a negative impact on the applicant.", "67. However, the Court observes that, before granting J.C.N. ’ s application for house arrest, the post-sentencing judge carefully assessed, with the help of the carabinieri, who provided a detailed report, the suitability of the facility chosen, in accordance with the gravity of the crime committed by J.C.N. The decision appears to have been taken after a careful assessment of the situation.", "68. The fact that a previous application for house arrest had been turned down on the basis, inter alia, of the proximity of the facility to the applicant ’ s home does not per se invalidate the authorities ’ decision in relation to the protection of the applicant. The court finds that in view of the fact that a different facility was indicated and that time had elapsed since the last application, it was not unreasonable for the judge to reach a different conclusion in relation to the danger of a repetition of the crime by J.C.N.", "69. The episodes relied on by the applicant to corroborate her claims (see paragraphs 46-47 above), which were not contested by the Government, were not attributable to the location of the chosen facility. Moreover, by not reporting those episodes, the applicant denied the authorities the opportunity to intervene. Specifically, the post-sentencing judge was in a position to evaluate their compatibility with J.C.N. remaining in the facility and the juvenile court was in a position to assess whether the prohibition on J.C.N. contacting his children had been infringed.", "70. In relation to the complaint that the applicant ’ s former partner had not undergone psychological therapy, the Court notes that, contrary to the applicant ’ s claim, the judgments of the domestic courts in the criminal proceedings against him had not ordered that any psychological therapy be followed (unlike in the case of A. v. Croatia, no. 55164/08, 14 October 2010).", "71. On the other hand, although the Venice Juvenile Court divested J.C.N. of his parental rights, it recommended that he receive psychological support therapy as a precondition to his requesting the restoration of such rights. The Court observes that the Government submitted proof that the applicant ’ s former partner had participated in such a psychological support programme aimed at appreciating and analysing the gravity of his conduct.", "72. In relation to the applicant ’ s claim that she had not been kept informed about the criminal proceedings against J .C.N., the Court notes that the Convention may not be interpreted as imposing a general obligation on States to inform the victim of ill-treatment about the criminal proceedings against the perpetrator, including about possible release on parole from prison or transfer to house arrest. Furthermore, the Court notes that under the applicable Italian law, such information has only to be provided to the victim of a crime who intervened as a civil party to the proceedings, and that the applicant chose not to do so.", "73. Furthermore, the Court cannot fail to observe that from a reading of the email exchange (submitted by the applicant) between the applicant and her former partner ( see paragraph 3 0 above), the relationship between them appeared to be relatively calm and harmonious. The applicant indicated, inter alia, her availability to meet her former partner and provided information on the well - being of their children. Her former partner appeared to accept the applicant ’ s new relationship.", "74. The Court also notes that no further threats or episodes of violence occurred either after the applicant ’ s former partner was granted house arrest or after he was released.", "75. Lastly, the Court finds that the remainder of the applicant ’ s complaints (see paragraphs 42-43 above) are unsubstantiated and unsupported by the material submitted.", "76. In the light of the above considerations, the Court concludes that the authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity.", "77. There has accordingly been no violation of Article 3 of the Convention. In view of that finding, the Court concludes for the same reasons that there has been no breach of Article 3 in conjunction with Article 14 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1968 and lives in Colognola ai Colli, in the province of Verona.", "7. The facts of the case, as submitted by the parties, can be summarised as follows.", "A. Background to the case", "8. The applicant ’ s relationship with J.C.N., a Kenyan national, began in 2003. They had two children, P. and A., who were born in August 2006 and March 2008 respectively.", "9. The applicant submitted that her relationship with J.C.N. deteriorated rapidly. In 2008 they undertook relationship therapy, which was interrupted because J.C.N. was suffering from depression. He also took no interest in the business he had set up with the applicant in 2006.", "10. According to the domestic court ’ s judgments, on 16 November 2008 J.C.N. hit the applicant several times and threatened her with a knife and a pair of scissors during a violent argument concerning the relationship that she had begun with a common friend. J.C.N. locked the applicant in the flat and took the keys in order to prevent her from leaving. Their children were asleep in the flat and one of them, awakened by the screaming, witnessed part of the aggression.", "11. The carabinieri, called by the neighbours, intervened at the couple ’ s home. The applicant was taken to hospital in a state of shock. She was diagnosed with, inter alia, concussion, injuries to the head and several bruises all over her body.", "B. Criminal proceedings against the applicant ’ s former partner", "12. J.C.N. was arrested and detained. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. He subsequently asked the authorities in charge of the preliminary investigation to adopt the summary procedure ( giudizio abbreviato ) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”).", "13. On 2 April 2009 J.C.N. was found guilty and sentenced to four years and eight months ’ detention.", "14. The applicant did not join the criminal proceedings as a civil party.", "15. On 11 December 2009 the Verona Court of Appeal reduced the sentence to three years and four months ’ detention.", "16. By a decision issued on 7 October 2010 the Court of Cassation dismissed an appeal lodged by J.C.N.", "C. Execution of the sentence", "17. On 6 October 2009 J.C.N. applied to the Venice Court of Appeal seeking to serve the remainder of his sentence under house arrest at a reception centre located in the municipality where the applicant was living (Colognola ai Colli).", "18. On 3 November 2009 the Venice Court of Appeal dismissed J.C.N. ’ s application, referring, inter alia, to the proximity of the facility indicated (2 km) to the applicant ’ s home, the psychological condition of J.C.N. and the risk that he might try to contact the applicant.", "19. On 1 June 2010 J.C.N. lodged another application for house arrest, indicating a reception centre (“Don Nicola”) located in Soave, a different municipality of the province of Verona, about 15 km from the applicant ’ s home. The centre was managed by a non - profit -making organisation called Sulle Orme.", "20. The Venice Court of Appeal ordered an inspection of the facility indicated by J.C.N. in order to assess its suitability to host him. The inspection was carried out by the carabinieri, who highlighted that the facility in question had already hosted persons whose prison sentence had been replaced by house arrest, without any complications having arisen. They further stressed that they carried out regular surveillance of the persons hosted by the centre. They consequently concluded that the facility was suitable to host the applicant ’ s former partner.", "21. On 18 June 2010 the Venice Court of Appeal granted J.C.N. ’ s request.", "22. On 24 September 2010 the Venice Court of Appeal granted J.C.N. permission to work outside the reception centre during the grape - harvest season.", "23. On 2 August 2011 J.C.N. finished serving his sentence and was released. He decided to continue residing at the reception centre.", "D. Proceedings before the Venice Juvenile Court", "24. On 24 April 2009 the applicant lodged an application with the Venice Juvenile Court seeking sole custody of her children and the forfeiture of her former partner ’ s parental rights.", "25. On 15 May 2009 the applicant was granted sole custody of her children. In February 2010, after having heard both the applicant and her former partner, the Venice Juvenile Court ordered the forfeiture of J.C.N. ’ s parental rights and prohibited any form of contact between him and the children. The court stressed that J.C.N. could apply for the restoration of his parental rights once he had served his sentence and followed a path aimed at acquiring the parental skills he had been shown to be lacking.", "26. In January 2012 J.C.N. applied to the Venice Juvenile Court seeking the restoration of his parental rights and the suspension of his financial obligation towards his children. No information was submitted to the Court about the outcome of the application.", "E. Situation of the applicant following the assault", "27. The applicant claimed that following the violence suffered at the hands of her former partner, she lived in a state of constant anguish and fear of a recurrence of the violence against her and her children. She underwent psychological support therapy, as did her son P., who had witnessed the violence.", "28. On an unspecified date the applicant turned for help to an association ( Associazione scaligera vittime di reato – ASAV ) that specialised in providing material, psychological and legal assistance to victims of crime.", "29. The applicant visited her former partner five times during his imprisonment, which lasted from 18 November 2008 to 18 June 2010.", "30. From the material submitted by the applicant, it appears that after J.C.N. was released he and the applicant resumed contact in the form of an exchange of emails." ]

[ "II. RELEVANT INTERNATIONAL MATERIAL", "31. A summary of the relevant international material concerning protection from domestic violence and discrimination against women has been made in the case of Opuz v. Turkey ( no. 33401/02, §§ 72-86, ECHR 2009).", "32. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention.", "33. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women, such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence were able to institute proceedings, make provisions to ensure that criminal proceedings could be instituted by the public prosecutor, and encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest. Member States should also ensure, where necessary, that measures were taken to protect victims effectively against threats and possible acts of revenge, and take specific measures to ensure that children ’ s rights were protected during proceedings.", "34. With regard to domestic violence, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas. They should also penalise all breaches of the measures imposed on the perpetrator and establish a compulsory protocol so that the police, medical and social services followed the same procedure.", "35. In its General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/2010/47/GC.2), the Committee on the Elimination of Discrimination against Women found that “States parties have a due diligence obligation to prevent, investigate, prosecute and punish ... acts of gender based violence”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "36. Citing Article 3 of the Convention alone and in conjunction with Article 14 of the Convention, the applicant complained of the inaction of the Italian authorities, which had failed to protect and support her after the violence she had suffered. She claimed that those omissions and the inadequacy of the domestic legislative framework in combating domestic violence proved that she had been discriminated against on the basis of her gender.", "37. The Articles referred to provide as follows :", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "38. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "39. The applicant submitted that after the serious incident of violence in November 2008, the authorities had failed to assist and support her and to protect her from any repetition of such violence.", "40. The applicant argued that the violence she had suffered at the hands of her former partner had had a traumatic effect on her, causing her strong psychological distress from which she had not yet recovered. She had been unable to continue living in the same flat where the violence had occurred and had moved to a different floor of the same building. She had experienced difficulty sleeping and she and her son P. had undergone psychological support therapy.", "41. The applicant further contended that the authorities had not informed her about the status of the criminal proceedings against J.C.N. In particular, she had not been informed when he had been granted house arrest. She claimed to have become aware of that when her former partner called her using the phone of a common friend. The applicant also criticised the conduct of the carabinieri who, when asked for explanations about the house arrest granted to J.C.N., had limited themselves to reassuring her about the suitability and safety of the chosen facility.", "42. Furthermore, the applicant submitted that at the beginning of his detention J.C.N. had sent several letters to her which she had perceived as threatening. Such conduct had ceased once his lawyer had been informed.", "43. The applicant also claimed that while serving his sentence, her former partner had not followed any psychological recovery programme and that he continued to constitute a threat to her life and the lives of her children.", "44. The applicant also argued that the proximity to her home of the facility hosting J.C.N. while he was under house arrest had contributed to an increase in her anguish and her fear that he might attack her again. She pointed out that his previous application for house arrest had been dismissed on the grounds, inter alia, of the proximity of the facility indicated to her home.", "45. In this context the applicant claimed that on 25 June 2010 she had been intimidated by the manager of the reception centre, “Don Nicola ”, who had made indirect reference to his power to influence the proceedings concerning parental rights in order to prevent her from selling the company she co-owned with her former partner.", "46. Moreover, the applicant pointed out that she had been contacted by a worker of the centre to set up a telephone conversation between J.C.N. and his son P. for the birthday of the latter on 2 August 2010. In her view, both of those episodes served to cast doubt on the choice of the reception centre in question. Lastly, she complained that after J.C.N. had finished serving his sentence, he had continued to reside at the same facility and had resumed contact with her in the form of an email exchange, which she perceived as inappropriate.", "47. The applicant pointed out that in the light of the above she was in a position of vulnerability and that the authorities had failed to assist and support her, having omitted to put in place adequate measures to protect her from a repeat attack by J.C.N. She highlighted that children and other vulnerable individuals, in particular, were entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity.", "48. The applicant maintained that the violence she had suffered and the consequent psychological distress had attained a sufficient level of severity to be considered as ill-treatment within the scope of Article 3 of the Convention.", "(b) The Government", "49. On the merits of the case the Government submitted that the authorities had taken all reasonable measures to punish the perpetrator of the violence, to protect and support the applicant from the risk of violence and to prevent such violence from recurring.", "50. The Government remarked that J.C.N. had been arrested and remanded in custody immediately after the attack on the applicant. The criminal proceedings thereafter had been conducted with due expedition and he had been sentenced to three years and four months ’ detention, a sentence proportionate to the crime with which he had been charged. The applicant ’ s former partner had served the majority of his sentence in a prison facility and only in June 2010 had been granted house arrest at a reception centre managed by an organisation called Sulle Orme.", "51. The Government pointed out that a person under house arrest was still considered to be in detention; he did not enjoy freedom of movement and any violation of the house arrest conditions (set up by the post-sentencing judge) constituted a further crime. Moreover, J.C.N. had been placed in a facility the suitability of which, in terms of both security and rehabilitation prospects, had been carefully assessed by the authorities involved, in line with the gravity of the crime he had committed.", "52. The Government argued that J.C.N. had participated in a programme of psychological support and rehabilitation organised by the Municipality of Soave and that the reports thereon had been positive.", "53. In relation to one of the episodes referred to by the applicant to prove the inadequacy of the chosen facility (see paragraph 46 above), the Government, while not contesting its truthfulness, highlighted that the applicant had failed to report it to the authorities, thus denying them the possibility to intervene. The Government did not take a stand on the other episode referred to by the applicant (see paragraph 45 above).", "54. As far as the contacts between the applicant and her former partner (following his release) were concerned, the Government submitted that if, as she claimed, the applicant had perceived such contacts as inappropriate or threatening, she had had at her disposal a specific protection against the crime of stalking. She had not availed herself of such a protection.", "55. Lastly, the Government stressed that in the Verona province there were several centres specialising in the support and assistance of victims of violent crimes and that the applicant could easily have had access to one of them.", "56. The Government concluded that the applicant had not submitted any valid arguments, facts or evidence corroborating the alleged lack of support and protection on the part of the authorities.", "2. The Court ’ s assessment", "(a) General principles", "57. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello ‑ Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C; Opuz v. Turkey, no. 33401/02, § 158, 9 June 2009; and Eremia v. The Republic of Moldova, no. 3564/11, § 48, 28 May 2013).", "58. The Court further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on the States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI; Opuz, cited above, § 159; and Eremia, cited above, § 48). This obligation should include effective protection of, inter alios, an identified individual or individuals from the criminal acts of a third party, as well as reasonable steps to prevent ill-treatment of which the authorities knew or ought to have known (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998 ‑ VIII; E. and Others v. the United Kingdom, no. 33218/96, § 88, 26 November 2002; and J.L. v. Latvia, no. 23893/06, § 64, 17 April 2012). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, cited above, § 22).", "59. It is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S. v. Bulgaria, no. 71127/01, § 82, 12 June 2008). At the same time, under Article 19 of the Convention and in accordance with the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007).", "(b) Application of these general principles in the present case", "(i) Whether the applicant was subjected to ill- treatment within the meaning of Article 3 of the Convention", "60. The Court considers that the applicant was a “vulnerable individual” having regard to the physical injuries she suffered on 16 November 2008 and her fear of further violence.", "61. The Court considers that such violence and the psychological consequences of it were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.", "62. In such circumstances, the Court finds that Article 3 of the Convention was applicable to the present case. It must therefore determine whether the authorities ’ actions in response to the applicant ’ s complaints complied with the requirements of that provision and whether the national authorities took all reasonable measures to prevent the recurrence of violent attacks against the applicant ’ s physical integrity.", "(ii) Whether the authorities complied with their positive obligations under Article 3 of the Convention", "63. The States ’ positive obligations under Article 3 of the Convention include, on the one hand, setting up a legislative framework aimed at preventing and punishing ill-treatment by private individuals and, on the other hand, when aware of an imminent risk of ill-treatment of an identified individual or when ill-treatment has already occurred, applying the relevant laws in practice, thus affording protection to the victims and punishing those responsible for ill-treatment ( see Eremia v. The Republic of Moldova, cited above, § 56).", "64. Turning to its examination of the facts, the Court notes that the authorities, namely the carabinieri, the public prosecutors and the domestic courts did not remain passive after the incident on 16 November 2008. The applicant ’ s former partner was immediately arrested and remanded in custody. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. The criminal proceedings were conducted with due expedition and he was sentenced to three years and four months ’ detention (see paragraphs 1 2 -1 6 above).", "65. The Court considers that in relation to the custody of the couple ’ s children, the response of the authorities was also effective. The applicant was granted sole custody and her former partner ’ s parental rights were forfeited (see paragraphs 2 4 -2 6 above).", "66. As far as the protection afforded to the applicant is concerned, the Court cannot but observe that the knowledge of the presence of her former partner at some 15 kilometers from her residence had a negative impact on the applicant.", "67. However, the Court observes that, before granting J.C.N. ’ s application for house arrest, the post-sentencing judge carefully assessed, with the help of the carabinieri, who provided a detailed report, the suitability of the facility chosen, in accordance with the gravity of the crime committed by J.C.N. The decision appears to have been taken after a careful assessment of the situation.", "68. The fact that a previous application for house arrest had been turned down on the basis, inter alia, of the proximity of the facility to the applicant ’ s home does not per se invalidate the authorities ’ decision in relation to the protection of the applicant. The court finds that in view of the fact that a different facility was indicated and that time had elapsed since the last application, it was not unreasonable for the judge to reach a different conclusion in relation to the danger of a repetition of the crime by J.C.N.", "69. The episodes relied on by the applicant to corroborate her claims (see paragraphs 46-47 above), which were not contested by the Government, were not attributable to the location of the chosen facility. Moreover, by not reporting those episodes, the applicant denied the authorities the opportunity to intervene. Specifically, the post-sentencing judge was in a position to evaluate their compatibility with J.C.N. remaining in the facility and the juvenile court was in a position to assess whether the prohibition on J.C.N. contacting his children had been infringed.", "70. In relation to the complaint that the applicant ’ s former partner had not undergone psychological therapy, the Court notes that, contrary to the applicant ’ s claim, the judgments of the domestic courts in the criminal proceedings against him had not ordered that any psychological therapy be followed (unlike in the case of A. v. Croatia, no. 55164/08, 14 October 2010).", "71. On the other hand, although the Venice Juvenile Court divested J.C.N. of his parental rights, it recommended that he receive psychological support therapy as a precondition to his requesting the restoration of such rights. The Court observes that the Government submitted proof that the applicant ’ s former partner had participated in such a psychological support programme aimed at appreciating and analysing the gravity of his conduct.", "72. In relation to the applicant ’ s claim that she had not been kept informed about the criminal proceedings against J .C.N., the Court notes that the Convention may not be interpreted as imposing a general obligation on States to inform the victim of ill-treatment about the criminal proceedings against the perpetrator, including about possible release on parole from prison or transfer to house arrest. Furthermore, the Court notes that under the applicable Italian law, such information has only to be provided to the victim of a crime who intervened as a civil party to the proceedings, and that the applicant chose not to do so.", "73. Furthermore, the Court cannot fail to observe that from a reading of the email exchange (submitted by the applicant) between the applicant and her former partner ( see paragraph 3 0 above), the relationship between them appeared to be relatively calm and harmonious. The applicant indicated, inter alia, her availability to meet her former partner and provided information on the well - being of their children. Her former partner appeared to accept the applicant ’ s new relationship.", "74. The Court also notes that no further threats or episodes of violence occurred either after the applicant ’ s former partner was granted house arrest or after he was released.", "75. Lastly, the Court finds that the remainder of the applicant ’ s complaints (see paragraphs 42-43 above) are unsubstantiated and unsupported by the material submitted.", "76. In the light of the above considerations, the Court concludes that the authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity.", "77. There has accordingly been no violation of Article 3 of the Convention. In view of that finding, the Court concludes for the same reasons that there has been no breach of Article 3 in conjunction with Article 14 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The facts of the case, as submitted by the applicants, may be summarised as follows.", "A. The background facts", "1. The first applicant, J.D.", "8. The applicant J.D. has lived with her adult, disabled daughter in a 3 bedroom property in the social rented sector since 1993. Her daughter has a type of brain damage associated with oxygen deprivation, severe physical and learning disabilities, is a permanent wheelchair user and is registered blind. J.D. cares for her daughter full time and their house was specifically designed to accommodate their needs including wide doors, an internal lift, a gradual slope at the front and rear to allow wheelchair access, ceiling hoists in the bathroom and bedroom, an accessible bathroom and a changing bed.", "9. In 2012 the Government introduced the Housing Benefit (Amendment) Regulations 2012 (see Relevant domestic law, below). As a result the applicant’s Housing Benefit was reduced by 14%, because she is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant’s Housing Benefit no longer meets the cost of her rent.", "10. The applicant applied for Discretionary Housing Payments (“DHP”) to meet the difference, which were awarded on a temporary basis. Her last award expired on 31 March 2017 and at the time of making her application she was awaiting a response to her most recent claim and had not been offered smaller accommodation which would meet her daughter’s needs.", "2. The second applicant, A", "11. The applicant A lives in a 3 bedroom house in the social rented sector with her son. She has lived there for more than 25 years. It appears that she was allocated a 3 bedroom house because of the shortage of 2 bedroom houses.", "12. In the past the applicant had a brief relationship with a man known as X who is considered extremely dangerous and has previously served a lengthy prison sentence for attempted murder. After his release from prison in 2002 X came to A’s home and violently attacked and raped her. Her son was conceived as a result of the rape. In 2012 X contacted A again and she was referred by the police to the “Sanctuary Scheme”. The scheme aims to protect those at risk from the most severe forms of domestic violence. As provided by the rules of her placement in the scheme, the applicant’s home was adapted to include the modification of the attic to render it a “panic room” where A and her son can retreat in the event of an attempted attack by X.", "13. The applicant receives Housing Benefit to rent her home. Following the change in legislation in 2012, the applicant’s Housing Benefit was reduced by 14%, because the applicant is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant’s Housing Benefit no longer meets the cost of her rent. The applicant has applied for DHPs to meet the difference, which have been awarded on a temporary basis.", "14. In early 2015, her application for DHP was refused by the local authority and she received a letter threatening her with eviction. The situation was brought to the attention of the Secretary of State who intervened on A’s behalf with the local authority, which reversed its decision to refuse her application for DHP. The Secretary of State informed the applicant that the refusal was the result of an ‘error in processing’ by the local authority where the fact that the applicant’s home had been specially adapted was not taken into account when the decision to refuse DHP was made.", "B. The Domestic proceedings", "1. The first applicant", "15. On 1 March 2013 the first applicant brought proceedings for judicial review. The Divisional Court gave its judgment on 30 July 2013. It considered that the relevant Regulations did discriminate against those who had a need to occupy accommodation with a greater number of bedrooms than they were entitled to because of their own disability or that of a family or household member. However, they considered that there was no “precise class of persons” who could be identified as affected by the measure, by reason of their disability. Moreover, such discrimination would only breach Article 14 taken together with Article 8 and/or Article 1 of Protocol No. 1 of the Convention, if it were “manifestly without reasonable foundation”, and that test was not satisfied in the case.", "16. The applicant together with four other claimants, appealed to the Court of Appeal, which gave its judgment on 21 February 2014. The Court of Appeal held that the Regulations discriminated against disabled people who had a need for additional accommodation as compared with comparable non-disabled people who do not have such a need. The Court of Appeal considered whether it should be classified as direct or indirect discrimination although in its view the type of discrimination was not material in light of the Strasbourg case-law. The Master of the Rolls (Lord Neuberger) giving the lead opinion concluded on this point:", "“47. In case the classification question is material, I shall content myself with saying that ... the discrimination in this case is one of indirect or Thlimennos discrimination. It is not necessary to distinguish between these two. As a matter of substance, Regulation B13 discriminates against disabled persons on the ground of disability ...”", "17. However, applying the test of “manifestly without reasonable foundation” the Court of Appeal found that the discrimination was justified for three reasons. First, because the applicant did not form a very limited class, and to include an imprecise class to whom the Regulations would not apply would introduce more complexity into the assessment and be administratively intensive and costly. Second, discretionary payments were suitable to deal with disability-related needs as they can be imposed for shorter periods and demanded more rigorous financial discipline from local authorities. Third, the Secretary of State was entitled to take the view that there were certain groups of persons whose needs for assistance with payment of their rent are better dealt with by discretionary payments rather than Housing Benefits.", "18. The applicant appealed to the Supreme Court. The proceedings were joined with that of the second applicant and a number of other claimants (see paragraphs 22-30 below).", "2. The second applicant", "19. The second applicant brought a claim for judicial review on the basis of gender discrimination on 24 May 2014; the High Court gave judgment on 29 January 2015. It concluded that the Regulations were prima facie discriminatory on grounds of gender but that the discrimination was justified. In its judgment, the High Court examined the system of Sanctuary Schemes, summarised as follows:", "“9. Sanctuary Schemes", "A Sanctuary Scheme provides for the adaption of a property to make it secure. In particular there may be a secured room or space. The safe room provides a place to which the person can retreat if violence occurs or they are in fear of attack whilst they call the police and wait for assistance. The address is ‘tagged’ on police computer systems to ensure a quick response to a 999 call or the activation of a panic button. Specialist, tailored support is also provided, and A has (what is termed) a \"complex package of multi-agency support\".", "10. These Schemes have been successfully established across the country since 2006. Even a brief explanation of their aims and scope are sufficient to demonstrate what a good idea they are. One of the obvious benefits is that victims of domestic violence and the like can remain in their own homes (if they want to) rather than being forced out by the fear of violence. Leaving their home as a result of domestic violence can have serious consequences for the stability of their lives. Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for the loss of a last settled home for 12-13% of homelessness acceptances in England; see the witness statement of [ P.N.] of Women’s Aid at [C4]. [the applicant’s representative] submitted that Sanctuary Schemes are a means of homelessness prevention. Whilst the work costs money, it avoids the expense and upheaval of re-housing and (as A’s case well illustrates) of losing the support network of friends and neighbours that takes years to build up and which is so important for the continued safety and general wellbeing of people in A’s position. It is these people who help provide her with the day to day friendship and sense of community that she needs.", "...", "16. None of that is particularly controversial. However, there is one further piece of evidence provided by the replies to these requests which was the subject of some argument. Local authorities were asked for the number of households in Sanctuary Schemes affected by the under-occupancy provisions. The answer was 120. The average gap in funding was £16.70 per week (above the average figure). Of that group of 120, the number receiving DHPs was 24 (or 20%). The Claimant relies upon that statistic to show that DHPs are not being provided to 80% of households in Sanctuary Schemes which are affected by these regulations and who should be receiving DHPs. The Defendant says that it proves nothing of the sort. [...] I observed during the course of argument that I would need to know more about the 80% before I could draw any conclusions from these figures. That remains my view. The statistic shows that DHPs are being paid to people in Sanctuary Schemes. Indeed that is A’s experience. What we do not know is why they are not being paid. It may be that it is because applications are being refused. Or it may be because claimants are bridging the gap in other ways.”", "20. The applicant appealed to the Court of Appeal who concluded on 27 January 2016 that the discrimination against the second applicant was not justified, and was unlawful. The case proceeded on the basis that Regulation B13 constituted “ prima facie discrimination on grounds of sex and disability” (see § 5). The primary question before the court was therefore whether that discrimination had been justified. The court set out the situation of the second applicant:", "“10. A has lived in a three bedroom house rented from the local council since 1989. In 1993-4 she had a brief, casual relationship with a man, X, who was subsequently convicted of attempted murder; he has been exceptionally violent to her. Whilst in prison he started to harass her and in 2002 he sought her out. A child was conceived as a result of his rape of her and was born in 2003. The child lives with her. The courts have refused contact between the son and X.", "11. In 2012, X contacted A again and made threats of violence to her. The police and other agencies took the threats seriously and under one of the schemes which are known as the \"Sanctuary Schemes\" her property was adapted. She is protected under that scheme with the support of the police. In consequence of the violence of X and the continued threats from him, she suffers from PTSD and has suicidal ideation.", "12. Sanctuary Schemes, which have been operating since 2006, provide for the adaptation of a house or flat to make it secure and for on-going security monitoring to enable people who have been subjected to violence, including what is often referred to a \"domestic violence\", to remain in their own home. There was powerful evidence before the judge from [P.N.], the Chief Executive of Women’s Aid, about the benefits and importance of Sanctuary Schemes.”", "In its conclusions under Article 14, the Court of Appeal commented:", "“ 47. A and those in a similar position to A, who have suffered from serious violence, require the kind of protection offered by the Sanctuary Schemes in order to mitigate the serious effects of such violence and the continued threats of such violence. It cannot seriously be disputed that A and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted \"safe\" room, are few in number and capable of easy recognition. There would be little prospect of abuse by including them within the defined categories in Regulation B13 and little need for monitoring. Moreover, with careful drafting, Regulation B13 could be amended to identify them as a discernible and certain class.", "...", "54. In these circumstances, whilst we saw great force in the Secretary of State’s arguments, which we subjected to serious scrutiny, we feel constrained not to accept them. We acknowledge in particular that DHPs are discretionary, but that that discretion has to be exercised lawfully and in accordance with the guidance issued by the Secretary of State. If they were to be withheld inappropriately, the decision would be subject to review. We acknowledge that the evidence shows that the DHPs would cover the full deficit in Housing Benefit. We acknowledge that, even though the fund for DHPs is capped and may in theory be insufficient, there is no clear evidence that it will be; on the contrary, so far it has been sufficient. Thus, the evidence is that A has received what she would have received had those in her position been brought within a defined class in Regulation B13; she has not been disadvantaged. But that was the position in Burnip, and the same justification was not accepted.", "55. Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach.", "56. In these circumstances, we have concluded that the appeal in A must be allowed on the ground that the Secretary of State has failed to show that his reasons amount to an objective and reasonable justification for the admitted discrimination in Regulation B13.”", "21. The Government appealed that decision and the second applicant’s case was joined with that of the first applicant and a number of others to be heard together, before the Supreme Court.", "3. The proceedings before the Supreme Court", "22. The Supreme Court gave its judgment on 9 November 2016. Both the applicants’ claims were dismissed. Lord Toulson gave the lead judgment, Lady Hale and Lord Carnwath dissented in the case concerning the second applicant.", "23. Lord Toulson first addressed the question whether the lower courts had applied the right test in asking whether the discriminatory treatment complained of was “manifestly without reasonable foundation”. Where the applicants had argued that in cases such as theirs involving disability or gender discrimination, weighty reasons for justification were required, he confirmed that the lower courts were correct to apply the test of “manifestly without reasonable foundation”. Lord Toulson clarified that:", "“32. The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber [of the European Court of Human Rights] in Stec (para 52). Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.”", "24. He then went on to consider whether the domestic courts had misapplied that test. He found that they had not. He said:", "“41. ...There was certainly a reasonable foundation for the Secretary of State’s decision not to create a blanket exception for anyone suffering from a disability within the meaning of the Equality Act (which covers anyone who has a physical or mental impairment that has a more than minimal long term effect on the ability to do normal daily activities) and to regard a DHP scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency.", "42. However, that is not the end of the matter, for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom...”", "25. He then went on to examine the situation of other claimants in the proceedings in light of the distinction he had identified. In examining the case of the first applicant, he concluded:", "“53. JD lives with [her] adult daughter, AD, who is severely disabled, in a specially constructed three-bedroom property. They have no objective need for that number of bedrooms. Because the property has been specially designed to meet [ADs] complex needs, there may be strong reasons for JD to receive state benefits to cover the full rent, but again it is not unreasonable for that to be considered under the DHP scheme.”", "26. In respect of the second applicant, he considered that whilst A had a strong case for staying where she needed to be, she had no need for a three ‑ bedroom property:", "“59. Notwithstanding my considerable sympathy for A and other women in her predicament, I would allow the Secretary of State’s appeal in A’s case. I add that for as long as A. and others in a similar situation are in need of the protection of Sanctuary Scheme housing, they must of course receive it; but that does not require the court to hold that A has a valid claim against the Secretary of State for unlawful sex discrimination.”", "27. He commented:", "“62... It was recognised from the time that [the Regulation (Reg B13)] was mooted that there will be some people who have a very powerful case for remaining where they are, on grounds of need unrelated to the size of the property. For reasons explained in the evidence (to which I have referred in para 40), it was decided not to try to deal with cases of personal need unrelated to the size of the property by general exemptions for particular categories but to take account of them through DHPs.", "...", "64. So while I agree that there would have been no insuperable practical difficulty in drafting an exemption from the size criteria for victims of gender violence who are in a sanctuary scheme and who need for that reason to stay where they are, deciding whether they really needed to stay in that particular property would at least in some cases require some form of evaluation. I leave aside the question debated in the evidence about whether some people in a sanctuary scheme might safely be able to make use of a spare room by taking in someone else such as a family member. Likewise I do not suppose that there would be insuperable practical difficulties in drafting exemptions to meet other categories of people who may justifiably claim to have a need to remain where they are for reasons unconnected with the size of the accommodation, but this would again require an evaluative process. ”", "28. He considered whether the state has a positive duty to provide effective protection to victims of gender-based violence but decided not to examine the question of whether there was a duty, because this would not mandate the means by which such protection is provided.", "29. Lady Hale, dissenting in respect of the second applicant’s case considered unfortunate that the cases had been joined underlining that the cases where it is clear that people need an extra room because of their disability, and the case of A are different:", "“72... A’s need is not for space but to stay where she is. The effect of the regulation is to deny her the benefit she needs in order to stay in the accommodation she needs. In my view this is unjustified discrimination against her on grounds of her sex. But the reasons are quite different from the reasons in the disability cases.", "...", "76. The state has provided Ms A with such a safe haven. It allocated her a three ‑ bedroom house when she did not need one. That was not her choice. It later fortified that house and put in place a detailed plan to keep her and her son safe. Reducing her Housing Benefit by reference to the number of bedrooms puts at risk her ability to stay there. Because of its special character, it will be difficult if not impossible for her to move elsewhere and that would certainly put the State to yet further expense. Given these very special circumstances, I am tempted to regard this as an interference with her and her son’s right to respect for their home. But in any event, denying her the benefit she needs in order to be able to stay there is discrimination in the sense described in Thlimmenos v Greece 31 EHRR 15: treating her like any other single parent with one child when in fact she ought to be treated differently.", "77. Indeed, the appellant does not seriously dispute that Ms A needs to stay where she is. The Secretary of State accepts that she needs to stay in a Sanctuary Scheme and probably in this very house. The justification suggested for the interference, or the discrimination, is the availability of discretionary housing payments to make up the shortfall in her rent. But if the discretionary housing payment scheme is not good enough to justify the discrimination against the [other] households, it is not good enough to justify the discrimination against Ms A’s household either. Its deficiencies were acknowledged in the Court of Appeal’s decision in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117, para 46. They are well-summed up by Mr Drabble QC [...]: it is discretionary, cash-limited and produces less certainty; it has a stricter means test; it offers different and less attractive routes of judicial challenge; it can be onerous to make applications; and it encourages short term, temporary and conditional awards. For a woman in a Sanctuary Scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.”", "30. In relation to the first applicant’s case she commented:", "“78.... In the second example, the disability is indeed a status for article 14 purposes, and I have found the case of JD and [her daughter] an extremely difficult one and have been tempted to dissent in their case too. But the distinction between them and the victims of the sex discrimination entailed in gender-based violence, is that the state has a positive obligation to provide effective protection against gender-based violence and for this small group of victims this is the only way to make that protection effective.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Social Security Contributions and Benefits Act 1992", "31. Housing Benefit is a means tested benefit provided under section 130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations. It is a financial payment available to claimants on low incomes who meet certain eligibility criteria. Its purpose is to help claimants with their rental costs whether they rent private or social housing. There is a prescribed mechanism for determining in each case the appropriate maximum Housing Benefit.", "32. Regulation B13 was introduced into the Housing Benefit Regulations 2006 (SI 2006/213) in 2012. The Regulation provides for adjustment of the eligible rent and “Appropriate maximum Housing Benefit” in the area of social sector housing. Where the number of bedrooms in a dwelling exceeds that to which a claimant is entitled under the relevant provisions, a deduction is calculated in the claimant’s entitlement to benefits. The deduction is:", "14 % where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and", "25 % where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.", "33. The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home:", "“(a) a couple (within the meaning of Part 7 of the Act);", "(b) a person who is not a child;", "(ba) a child who cannot share a bedroom;", "(c) two children of the same sex;", "(d) two children who are less than ten years old;", "(e) a child...", "The claimant is entitled to one additional bedroom in any case where -", "(a) a relevant person is a person who requires overnight care; or", "(b) a relevant person is a qualifying parent or carer.", "...", "(9) In this regulation ‘relevant person’ means -", "(a) the claimant;", "(b) the claimant’s partner;", "(c) a person (“P”) other than the claimant or the claimant’s partner who is jointly liable with the claimant or the claimant’s partner (or both) to make payments in respect of the dwelling occupied as the claimant’s home;", "(d) P’s partner.”", "B. Discretionary Housing Payments", "34. There is also a statutory scheme for enabling Discretionary Housing Payments (DHPs) to be made to persons who are entitled to Housing Benefit and/or some other benefits. According to the Discretionary Financial Assistance Regulations (set out in Statutory Instrument 2001/1167), a payment may be made for such period as the authority considers appropriate in the particular circumstances of the case, and the authority is required to give reasons for its decision.", "35. There is no statutory right of appeal, but such decisions are in principle subject to judicial review. The practice is for the Department of Work and Pensions to make an annual DHP grant to local authorities in respect of their anticipated expenditure.", "36. In 2013 the Government issued a DHP guidance manual and good practice guide to local authorities. It was summarised in an Appendix to the Supreme Court judgment in the present cases (see paragraph 22 above) as follows:", "“29. This document of April 2013 (the Discretionary Housing Payments Guidance Manual) (“the DHP Guidance Manual”) contains very full guidance as to the use of DHPs. It reminds authorities, at para 1.10, that their DHP funds are cash limited. It reviews the whole scheme. It canvasses the possibility of allowing applications in advance from persons affected by the [Housing Benefit], at paras 4.5-6, and making an award not limited in time to a disabled claimant likewise affected, at para 5.3. A “Good Practice Guide” is included in the DHP Guidance Manual. It contains a substantial discussion of the [Housing Benefit]. It states:", "“1.10 The Government has provided additional funding towards DHPs following the introduction of the benefit cap. This additional funding is intended to support those claimants affected by the benefit cap who, as a result of a number of complex challenges, cannot immediately move into work or more affordable accommodation.”", "Specific types of case are then enumerated, at para 1.11, and carefully discussed, and worked examples are given. I should note these passages:", "“2.5 For claimants living in specially adapted accommodation, it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into accommodation which needs to be adapted. We therefore recommend that local authorities identify people who fall into this group and invite a claim for DHPs.", "2.7 The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, [Local Authority]’s should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.”", "Other types of case discussed include adopters (paras 2.9-11) and foster carers, in particular (para 2.13) carers for two or more unrelated foster children.", "30. At paras 5.4-5.5 the Good Practice Guide poses a series of practical questions under two heads, “The household’s medical circumstances, health or support needs” and “Other circumstances”. The bullet points under the latter head (13 in number) demonstrate a series of different cases, none of them necessarily involving disability, in which the claimant may encounter particular difficulty or hardship in seeking alternative accommodation in response to the reduction in his/her [Housing Benefit] which the local authority may think it right to consider in deciding whether to make an award of DHP. I will just set out the first two instances:", "“Is the claimant fleeing domestic violence? This may mean they need safe accommodation on an emergency basis so the concept of having time to shop around for a reasonably priced property is not appropriate.", "Does the household have to live in a particular area because the community gives them support or helps them contribute to the district?”", "C. The Human Rights Act 1998 (“HRA”)", "37. Pursuant to section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.", "D. The Equality Act 2010", "38. Section 149 of the Equality Act introduced the Public Sector Equality Duty. It provides that:", "“(1) A public authority must, in the exercise of its functions, have due regard to the need to—", "(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;", "(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;", "(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.", "...", "(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -", "(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;", "(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;", "(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.”", "39. Disability and sex are among the protected characteristics set out in Section 149 (7) of the Act.", "E. Relevant case-law", "40. In Burnip v. Birmingham City Council and others ([2012] EWCA Civ 629) the Court of Appeal on 15 May 2012 first examined the issue of discrimination in the context of the ‘bedroom tax’. The court’s conclusions were later summarised as follows by the Court of Appeal in the second applicant’s case:", "“32. Burnip concerned two cases of single severely disabled persons occupying two bedroom flats, and one family with three children including two severely disabled daughters occupying a four bedroom flat. In the third case ( Gorry ), it was inappropriate for the two disabled daughters aged 8 and 10 to share a bedroom because of their disabilities. In each case, their Housing Benefit had been reduced by the effect of [...] Regulation B13. The Court of Appeal (Maurice Kay and Hooper LJJ and Henderson J) held that the claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria (paragraph 24 of Maurice Kay LJ’s judgment). Henderson J (with whom the other members of the court agreed) held that DHPs could not be regarded as a complete or satisfactory answer to the problem (paragraphs 46 and 64). He also held in paragraph 64 that there was no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception was sought for only a very limited category of claimants, namely those with a disability so severe that an extra bedroom is needed for a carer to sleep in, or in Gorry’s case where separate bedrooms were needed for children whose disabilities were so severe they could not be reasonably expected to share a single room. He made clear that such cases were by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring.”", "41. In the judgment of Burnip itself, the Court of Appeal commented in more detail on why it could not regard DHP’s as a “complete or satisfactory answer to the problem”:", "“46. ...This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount if they were paid at all, could not be relied upon [to replace] the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that [DHPs] are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type.", "47. A further aspect of the problem is that housing, by its very nature, is likely to be a long term commitment. This is particularly so in the case of a severely disabled person, because of the difficulty in finding suitable accommodation and the probable need for substantial physical alternations to be made to the property in order to adapt it to the person’s needs. Before undertaking such a commitment, therefore, a disabled person needs to have a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits. For the reasons which I have given, [DHP’s] cannot in practice provide a disabled person with that kind of reassurance.”", "42. In R (Hurley and others) v. Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), the High Court considered a part of the Housing Benefit Regulations 2006 which introduced a limit (a ‘cap’) on the total amount of benefits an individual could receive. The claimants provided unpaid care to severely disabled persons for at least 35 hours per week, for which they received a “Carer’s Allowance”. That allowance was considered a benefit and so ‘capped’ as a result of the Regulations, resulting in a reduction in the amount that the claimants received.", "43. One of the claimants cared for her disabled grandmother in London but as a result of the reduction in her benefits fell into debt with her rent payments and was evicted with her four children from her local authority flat. She was offered homeless accommodation in Birmingham, but refused this as she could not have cared for her Grandmother if she moved to that city with her family. She moved with her children to live in one bedroom in her Grandmother’s house in London in “intolerable” conditions (see § 30). She applied to two local, London boroughs for DHP who refused her request on the basis that they had run out of DHP funds (see § 30).", "44. In its judgment of 15 May 2019 in R (on the application of DA and others) (Appellants) v. Secretary of State for Work and Pensions (Respondent), and R (on the application of DS and others (Appellants) v. Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 the Supreme Court examined appeals brought by various lone parent mothers and their young children to challenge legislative provisions known as the ‘benefit cap’, which capped specified welfare benefits at a certain amount per household.", "45. The Supreme Court considered the appropriate test by which to assess the justification under Article 14 for “an economic measure introduced by the democratically empowered arms of the state...” (see § 55). Lord Wilson giving the lead judgment stated:", "“65. ... there was - and there still remains - clear authority both in the Humphreys case and in the bedroom tax case for the proposition that [...] in relation to the government’s need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits, the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it .”", "46. Lady Hale and Lord Kerr dissented. Lady Hale opined:", "“147. Lord Kerr is surely right to question whether the test which the Strasbourg court will apply in matters of socio-economic policy should also be applied by a domestic court. The Strasbourg court applies that test, not because it is necessarily the proper test of proportionality in this area, but because it will accord a “wide margin of appreciation” to the “national authorities” in deciding what is in the public interest on social or economic grounds. The national authorities are better able to judge this because of their “direct knowledge of their society and its needs” (see Stec, para 52). It does not follow that national courts should accord a similarly wide discretion to national governments (or even Parliaments). The margin of appreciation is a concept applied by the Strasbourg court as part of the doctrine of subsidiarity. The standard by which national courts should judge the measures taken by national governments is a matter for their own constitutional arrangements.", "148. Not only that, it has been noted that, in Stec, the Grand Chamber cited James v United Kingdom (1986) 8 EHRR 123 as authority for its “manifestly without reasonable foundation” standard. But in James, it is fairly clear that the Strasbourg court drew a distinction between two questions: first, was the measure “in the public interest” for the purpose of A1P1 (or, in article 8 terms, does it pursue a legitimate aim); and second, was there a reasonable relationship of proportionality between the means employed and the aim sought to be realised. This latter requirement had been expressed in Sporrong and Lönnroth v Sweden 5 EHRR 35, at para 69, as “whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (see James, para 50). The “manifestly without reasonable foundation” standard was applied to the first but not the second question.”", "III. RELEVANT INTERNATIONAL AND EUROPEAN MATERIAL", "A. The United Nations Convention on Rights of Persons with Disabilities", "47. The United Kingdom signed the United Nations Convention on the Rights of Persons with Disabilities on 30 March 2007 and ratified it on 8 June 2009. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (for details see Guberina v. Croatia, no. 23682/13, §§ 34 ‑ 37), 22 March 2016).", "48. Article 28 of the Convention states:", "“1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.”", "49. In its concluding observations on the initial report of the United Kingdom under the Convention of 3 October 2017 (CPRD/C/GBR/CO/1), the Committee on the Rights of Persons with Disabilities raised concerns under Article 28 of the Convention about the impact of austerity measures and anti-poverty initiatives introduced following the financial crisis in 2008/9 which “resulted in severe economic constraints among person with disabilities and their families”.", "B. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the “Istanbul Convention”)", "50. The United Kingdom signed the Istanbul Convention on 8 June 2012. It has not ratified the Convention, nor brought it into force. The Convention aims to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence. It also aims to contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.", "51. Article 18 of Chapter IV “Protection and support”, states that:", "“2. Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co-operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non-governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services ....", "3. Parties shall ensure that measures taken pursuant to this chapter shall:", "–be based on a gendered understanding of violence against women and domestic violence and shall focus on the human rights and safety of the victim;", "–be based on an integrated approach which takes into account the relationship between victims, perpetrators, children and their wider social environment;", "–aim at avoiding secondary victimisation;", "–aim at the empowerment and economic independence of women victims of violence ...”", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "52. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1", "53. The first applicant complained that she had been discriminated against on the basis of her daughter’s disability. She relied in that connection on Article 14 of the Convention in conjunction with Article 8 and Article 1 Protocol 1.", "54. The second applicant complained that she had been discriminated against on the basis of her gender as the victim of gender based violence. She relied in that connection on Article 14 of the Convention in conjunction with Article 8.", "55. The Government have not disputed that disability and gender are identifiable characteristics and that the applicants can claim to have been discriminated against on the basis of those characteristics. In this connection it recalls that there is no doubt the first applicant may claim to have been discriminated against as a carer for a disabled person (see Guberina, cited above, §§ 76-79).", "56. The applicants have complained under Article 14 in conjunction either with Article 8 and/or with Article 1 Protocol 1. However, the Court is the master of the characterisation to be given in law to the facts of the case and does not consider itself bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). It notes that the gravamen of the applicants’ complaints is their alleged discriminatory treatment contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 resulting from the application of Regulation B13 governing Housing Benefits, and the DHP scheme.", "57. Therefore, it considers that the cases fall to be examined under Article 14 in conjunction with Article 1 of Protocol No. 1.", "Those provisions read as follows:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 Protocol 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Admissibility", "1. The parties’ submissions", "58. The Government argued that the Court has previously considered inadmissible ratione materiae complaints about the failure of public authorities to take positive steps to ensure that special provision be made for disabled people to provide them with support for ordinary living, even where domestic law provided for or even required such steps to be taken. The applicant’s cases are therefore inadmissible for the same reason.", "59. They also submitted that the applicants have received financial support to meet their housing needs and there is no significant difference between Housing Benefit and DHP. Accordingly, the applicants can no longer be considered victims within the meaning of the Convention, and for the same reasons they have not suffered any significant disadvantage.", "60. The applicants argued that their complaints were admissible as they had been directly and disproportionately affected by the reduction in their Housing Benefit under Regulation B13 due to their disability and gender. They submitted that there were significant differences between Housing Benefit under Regulation B13 and DHP, both in terms of the manner of allocation and the available review schemes, which meant that they were put at a disadvantage by applying for DHP.", "61. They considered that they remained victims from the perspective of the Convention as the domestic courts have not recognised any violation nor awarded them compensation. Moreover, in light of the differences between the two benefit regimes, they had suffered a ‘significant disadvantage’ by being made subject to the DHP regime and their cases were therefore admissible.", "2. The Court’s assessment", "62. In respect of the Government’s argument that the applicants complaints are inadmissible ratione materiae, the Court notes that the Government has made reference to cases concerning treatment of disabled persons. The Court therefore considers that these arguments relate to the first applicant’s complaint. The Government relied on a series of inadmissibility decisions: Botta v. Italy, 24 February 1998, Reports of Judgments and Decisions 1998 ‑ I, Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003 and Farcas v. Romania, no. 32596/04, 14 September 2010). The Court found those cases to be inadmissible because they concerned complaints of a general nature, such as a failure to provide disabled persons with access to beach facilities or public buildings (see Botta and Zehnalová and Zehnal, cited above), or they were unsubstantiated (see Sentges and Farcas, cited above). As such, they are significantly different from the present cases and are not relevant to the Court’s decision on the admissibility of the present applications.", "63. According to the Court’s well established case-law the prohibition of discrimination enshrined in Article 14 applies generally in cases under Article 1 of Protocol No. 1. where a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Vrountou v. Cyprus, no. 33631/06, § 64, 13 October 2015). To assess admissibility the question is whether, but for the condition of entitlement under domestic law about which the applicant complains, he or she would have had a right enforceable under domestic law, to receive the benefit in question (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005 ‑ X). It follows that the first applicant’s complaint falls within the scope of Article 1 Protocol No. 1 and that is sufficient to render Article 14 of the Convention applicable, and the complaint admissible ratione materiae.", "64. The Court also rejects the Government’s argument that the applicants are not victims from the perspective of Article 34 of the Convention. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012). The Court does not consider that permitting the applicants to apply for DHP could be considered a measure which was favourable to them in this context. It also notes that the national authorities have not acknowledged, either expressly or in substance a violation and then afforded redress for a breach of the Convention. Accordingly, the Court considers that the applicants can be considered victims under Article 34 of the Convention.", "65. As to whether the applicants suffered a ‘significant disadvantage’, the Court recalls that the admissibility criterion in Article 35 § 3 (b) reflects the view that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In the context of allegations of discrimination, the question of what amounts to a ‘significant disadvantage’ for an applicant requires particularly careful scrutiny. Moreover, an alleged violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting an applicant’s pecuniary interest. It may also be that, even in the absence of a “significant disadvantage”, a question of principle raised by an application is of a general character affecting the observance of the Convention, such that, under the terms of the second element in Article 35 § 3 (b), “respect for human rights defined in the Convention ... requires an examination of the application on its merits” (see Daniel Faulkner v. the United Kingdom, no. 68909/13, § 26, 6 October 2016, with further references).", "66. In the present case, what is at a stake, taking into consideration the applicants’ subjective perceptions and the discrimination alleged, raises general questions of principle which warrant consideration by the Court. Consequently, without needing to determine whether the applicant can be said to have suffered a “significant disadvantage”, the Court is led to dismiss the Government’s objections on the basis of the second element in Article 35 § 3 (b) of the Convention (see Daniel Faulkner, cited above, § 27).", "67. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicants", "68. The first applicant submitted that she had been discriminated against in the enjoyment of her rights under Article 14 and Article 1 Protocol 1 on the ground of disability because she had been treated less favourably than others as regards entitlement to Housing Benefit. Those who do not have objective housing needs based on their disability will receive a contribution which could cover all of their housing needs, whereas her Housing Benefit contribution does not cover her housing needs. This amounts to a failure to make a reasonable accommodation in the case of disability within the meaning of Çam v. Turkey, no. 51500/08, § 84, 23 February 2016.", "69. That difference in treatment was not justified because justification requires a reasonable relationship of proportionality between the legitimate aim and the means; in her case it had been disproportionate. Justification of discrimination on the grounds of disability requires “very weighty reasons”; the Government has not put forward any weighty reasons which could have justified the discrimination.", "70. The second applicant submitted that by reducing her Housing Benefit allocation, the government had discriminated against her on the basis of her gender within the meaning of Thlimmenos v. Greece ([GC], no. 34369/97, § 44, ECHR 2000 ‑ IV), as she was the victim of domestic violence and victims of domestic violence are overwhelmingly women.", "71. That discrimination could not be justified. The aim of the Government in implementing the bedroom criteria was to reduce expenditure and encourage social sector tenants to move or to work, such an aim was legitimate but there was no rational connection between the aim and its application. As a consequence of the violence and threats from X, the applicant suffered from post-traumatic stress disorder, depression and suicidal ideation, was unable to work, and lived in constant fear. It was accepted by the Supreme Court that she needed to stay in her adapted accommodation as long as she needed it. DHP payments could not alleviate the disadvantage caused by the reduction in her Housing Benefit because they were discretionary and precarious, in contrast to the entitlement to a benefit.", "72. Where there is prima facie gender discrimination, the arguments for justification must be subject to “strict scrutiny” and call for “weighty reasons”, not a justification of “manifestly without reasonable foundation” even in the context of allocation of benefits. It would only be appropriate to apply a test of “manifestly without reasonable foundation” where the measure was designed to correct a historic injustice, which was not so in her case. Applying the test of “strict scrutiny” and “weighty reasons” in her case meant that the reduction in her Housing Benefit was discriminatory.", "(b) The Government", "73. The Government argued that the aim of the legislative measures was “saving of public funds in the context of a major state benefit” and “shifting the place of social security support in society”. Those are social and fiscal matters which were approved by Parliament.", "74. The applicants had not been discriminated against since they have received financial support to meet their actual housing needs (and have received the same payment as the comparators); they have not been evicted from their homes and therefore they cannot contend that they have been discriminated against in the enjoyment of any possession. The scheme does not require the applicants to move out of their properties. It is designed to effect “behavioural changes” to incentivise families who feel they are under-occupying properties to move but there is no obligation to move and no reason for the applicants in the present cases to move.", "75. The requirement for the applicants to apply for DHP cannot be considered discriminatory because there is no uncertainty about whether DHP funds can be allocated. Moreover, whilst payments under the scheme are discretionary, there is a limit on that discretion because local authorities must have regard to their general duties in law, including duties under the Convention. A refusal to grant DHP can be challenged before the courts and it is usual in the context of any benefit payment that applicants must make an application to receive it. The DHP scheme is appropriate and suitable for claimants who cannot mitigate the reduction in of their Housing Benefit by any other available measure (such as moving, working or taking in a lodger, which will be options also available to other disabled and non-disabled persons). Payment by DHP instead of Housing Benefit is therefore justified.", "76. There has been no discrimination on the basis of Thlimmenos, cited above, because the principle in Thlimmenos cannot require a State to take positive steps to allocate a greater share of public resources to a particular person or group, and it has never been applied in the context of allocation of State benefits. The Court should apply an appropriate, prior limit in such cases by applying the principles of direct/indirect discrimination (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007 ‑ IV), or there must be a “significant difference” in treatment between the comparator groups. In the present cases, there has been no difference of treatment between the applicants and comparator groups. The measure limiting payment of Housing Benefit in some cases is neutral; the only place where a difference of treatment could arise is at the stage of deciding whether to make a DHP payment. However, it cannot be said that the decision at this stage of the proceedings is based solely on the status of disability or gender, and therefore that decision does not require “very weighty reasons” in order to be justified.", "77. Even if the applicants have suffered discrimination, such discrimination is justified on the basis that it served a legitimate aim and was not “manifestly without reasonable foundation”, which is the relevant test concerning the margin of appreciation in light of the Supreme Court’s judgment.", "2. Third party interveners", "(a) The Equality and Human Rights Commission", "78. The Equality and Human Rights Commission (“EHRC”) is the United Kingdom’s national human rights institution. It intervened in both applicants’ cases. With reference to the Court’s case-law the EHRC considered that the Court takes a purposive and practical approach to Article 14. It outlined seven reasons related to the functioning of the DHP Scheme to explain how payments made under the scheme are discretionary and may not be awarded. The EHRC made reference to a number of international legal instruments including the Council of Europe Istanbul Convention, the UN Convention on the Rights of Persons with Disabilities and the UN Commission on the Elimination of All Forms of Discrimination against Women (CEDAW). In respect of the latter it noted that the United Kingdom’s sixth periodic CEDAW report relies on the existence of ‘Sanctuary Schemes’ to discharge its duty to protect women from gender based violence.", "(b) The AIRE Centre", "79. The AIRE Centre is a non-governmental organisation running a specific project on obligations of states to victims of gender based and domestic violence, it intervened in the second applicant’s case. With reference to the Court’s case-law it considered that it was well-established that victims of domestic violence have a right to physical and moral integrity under Article 8 of the Convention. The Centre referred to the Council of Europe Istanbul Convention emphasising that this imposes an obligation on states to provide protection to victims. Finally, it underlined that domestic violence frequently raises issues of gender based discrimination and that there is a uniform acceptance of the fact that women and girls are the predominant victims of serious and life threatening forms of violence.", "3. The Court’s assessment", "(a) The general principles", "80. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in relevantly similar situations (see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).", "81. The Court also recalls that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see Andrejeva v. Latvia [GC], no. 55707/00, § 83, ECHR 2009 and Ždanoka v. Latvia [GC], no. 58278/00, § 112, ECHR 2006 ‑ IV). Indeed, measures of economic and social policy often involve the introduction and application of criteria which are based on making distinctions between categories or groups of individuals.", "82. Furthermore, not every difference in treatment between persons in relevantly similar situations will entail a violation of Article 14. Only differences in treatment based on the grounds enumerated in that Article are capable of resulting in discrimination within the meaning of Article 14 ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010 and Clift v. the United Kingdom, no. 7205/07, §§ 56-57, 13 July 2010). Thus, the prohibition enshrined in Article 14 encompasses differences of treatment based on an identifiable characteristic, or “status”, (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017, with further references). In this regard, the Court has already held that a person’s health status, including disability and various health impairments, fall within the term “other status” in the text of Article 14 of the Convention (see Guberina, cited above, § 76 with further references). The Court has also considered that a discriminatory treatment of a person on account of the disability of his or her child, with whom he or she has close personal links and for whom he or she provides care, is a form of disability-based discrimination covered by Article 14 of the Convention (ibid., § 79). The Court has further held that victims of gender based violence may be able to invoke the protection of Article 14 in conjunction with the relevant substantive provisions of the Convention (see Opuz v. Turkey, no. 33401/02, ECHR 2009; Bălșan v. Romania, no. 49645/09, 23 May 2017).", "83. For the purposes of Article 14, a difference of treatment based on a prohibited ground is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Mazurek v. France, no. 34406/97, §§ 46 and 48, ECHR 2000 ‑ II).", "84. Thus, the Contracting States must refrain from subjecting persons or groups to different treatment where, under the above principles, such treatment would qualify as discriminatory. However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos, cited above, § 44; Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007; D.H. and Others v. the Czech Republic, cited above, § 175; Eweida and Others v. the United Kingdom, no. 48420/10, 15 January 2013; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 288, ECHR 2012). The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different.", "85. The Court has also held that a policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group. Thus, indirect discrimination prohibited under Article 14 may arise under circumstances where a policy or measure produces a particularly prejudicial impact on certain persons as a result of a protected ground, such as gender or disability, attaching to their situation. In line with the general principles relating to the prohibition of discrimination, this is only the case, however, if such policy or measure has no “objective and reasonable” justification (see, among other authorities, S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014 (extracts), and D.H. and Others v. the Czech Republic, cited above, §§ 175 and 184-185).", "86. Furthermore, Article 14 does not preclude States from treating groups differently even on otherwise prohibited grounds in order to correct “factual inequalities” between them. Moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Thlimmenos, cited above, § 44; Stec and Others, cited above, § 51; D.H. and Others v. the Czech Republic, cited above, § 175).", "87. In the context of Article 1 of Protocol 1 alone, the Court has often held that in matters concerning, for example, general measures of economic or social strategy, the States usually enjoy a wide margin of appreciation under the Convention (see Fábián, cited above, § 115; Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014; Andrejeva, cited above, § 83). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”.", "88. However, as the Court has stressed in the context of Article 14 in conjunction with Article 1 Protocol 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the Court has limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see Stec and Others, cited above, §§ 61-66; Runkee and White, cited above, §§ 40-41 and British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 81, 15 September 2016).", "89. Outside the context of transitional measures designed to correct historic inequalities, the Court has held that given the need to prevent discrimination against people with disabilities and foster their full participation and integration in society, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009), and that because of the particular vulnerability of persons with disabilities such treatment would require very weighty reasons to be justified (see Guberina, cited above, § 73). The Court has also considered that as the advancement of gender equality is today a major goal in the member States of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention ( Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012).", "(b) Application to the present case", "(i) The issue", "90. The Court notes at the outset that, as set out in paragraph 32 above, the changes made in the Housing Benefit Regulations entailed that where the number of bedrooms in a dwelling exceeded that to which a claimant was entitled under the relevant provisions, a deduction is calculated in the claimant’s entitlement to benefits. This applied to all beneficiaries under the scheme without any distinction by reference to their characteristics such as disability or gender. In the present case, the applicants have been treated in the same way as other recipients of the Housing Benefit in that their entitlements have been reduced on the same grounds and according to the same criteria as those of other recipients. Thus, the issue arising in this case is one of alleged indirect discrimination.", "91. The question to be examined is whether there has been a discriminatory failure by the authorities of the respondent State to make a distinction in the applicants’ favour on the basis that their relevant circumstances were significantly different from those of other recipients of the Housing Benefit who were adversely affected by the contested policy. More specifically, the issue is whether, as a result of a failure to make a distinction, the impugned general measure, in the form of the legislative changes affecting the recipients of the Housing Benefit, was put in place in such a manner as to produce disproportionately prejudicial effects on the applicants because of their particular circumstances which, in respect of the first applicant, were linked to her daughter’s disability and, in respect of the second applicant, to her gender.", "(ii) The treatment of the applicants", "92. As regards the effects of the measure, the Court observes that it was an anticipated consequence of the reduction of the Housing Benefit that all benefit recipients who experienced such a reduction could be at risk of losing their homes. Indeed, the Government argued that this precarity was the intention of the scheme; to incentivise families to move (see paragraph 74 above). The Court accepts the applicants’ arguments that in this respect, they were in a significantly different situation and particularly prejudiced by the policy because they demonstrated they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their status. In the case of the first applicant, loss of her home would cause exceptional hardship given her daughter’s severe mental and physical disabilities. In the case of the second applicant, loss of her home would risk her personal safety. Thus, for these reasons, the consequence of the measure was much more severe for the applicants than for others whose entitlement to Housing Benefit was reduced.", "93. The legislative scheme also anticipated that those who experienced a reduction in their Housing Benefit would be able to mitigate their loss by taking in tenants and/or working (see paragraph 36 above). The Government has argued that these possibilities to make up for the reduction in Housing Benefit were available equally to disabled and non-disabled persons (see paragraph 75 above). However, the Court notes that because of their vulnerable status the applicants were significantly less able than other Housing Benefit recipients to mitigate their loss by taking in tenants or by working (see paragraphs 8 and 71 above). Accordingly, they did not have the same possibilities available to them to mitigate their loss as other recipients of Housing Benefit.", "94. The Court concludes that in light of the above the applicants, having been treated in the same way as other recipients of Housing Benefit who were subject to a reduction in their Housing Benefit, were particularly prejudiced by that measure because their situation was significantly different for reasons of disability, as regards the first applicant, and gender, as regards the second applicant.", "95. The Government have argued that they eliminated the failure to treat the applicants differently from other recipients of the Housing Benefit by providing the applicants with the option to apply for and receive DHP. The Court considers it would be possible to examine the provision of DHP from this perspective. However, as the domestic courts considered it more appropriate to examine this element in the context of justification for the treatment, the Court will follow the same approach.", "(iii) Whether the treatment was objectively and reasonably justified", "96. Having established that the applicants, who were treated in the same way as other recipients of the Housing Benefit even though their circumstances were significantly different, were particularly prejudiced by the impugned measure – because they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their vulnerable status and were less able to mitigate the reduction in their Housing Benefit – the Court must ask whether the failure to take account of that difference was discriminatory. Such treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Guberina, cited above, § 69).", "97. In the circumstances of the present cases – where the alleged discrimination was on the basis of disability and gender, and did not result from a transitional measure carried out in good faith in order to correct an inequality – very weighty reasons would be required to justify the impugned measure in respect of the applicants (see paragraph 89 above).", "98. As to the legitimate aim of the legislation, the domestic courts accepted that it was to curb public expenditure by ensuring that social sector tenants of working age who were occupying premises with more bedrooms than required should, wherever possible, move into smaller accommodation. The applicants also accepted this aim as legitimate in general terms (see paragraph 71 above). It therefore remains to be examined whether the treatment afforded to the applicants was justified on the basis that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.", "99. The applicants argued that the measure was disproportionate in its impact on them in the sense of not corresponding to the legitimate aim of the measure. It is true that the Government has not put forward any detailed reasons as to how imposing the measures on the applicants might achieve the stated aims of reducing benefit payments; managing housing local authority stock; and encouraging employment. It was accepted that the applicants should be able to receive DHPs in order that they could remain in their adapted housing (see paragraphs 25 and 26 above). Accordingly, it does not appear that the aims envisaged by the legislative changes could have been achieved by applying them to the applicants.", "100. However, as with most complaints of alleged discrimination in a welfare or pensions system, the issue before the Court for consideration goes to the compatibility of the system with Article 14, not only to the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation (see British Gurkha Welfare Society and Others, cited above, § 63). It is therefore appropriate to look at the system as a whole.", "(α) The first applicant", "101. Turning to the scheme as a whole, with reference to the case of the first applicant, the Court finds that whilst it has been acknowledged that any move would be extremely disruptive and highly undesirable for the first applicant, it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an ‘extra’ bedroom to move into smaller, appropriately adapted accommodation.", "102. In that context, the Court takes account of the Government’s decision to provide for those who did not fall under the exemptions set out in the Regulation to apply for DHP. The Court acknowledges that the DHP scheme had a number of significant disadvantages which were identified by the domestic courts, namely that the awards of DHP were purely discretionary in nature; their duration was uncertain; they were payable from a capped fund; and their amount could not be relied upon to replace the full amount of the shortfall (see paragraph 41 above). On the other hand, the scheme had some advantages in that it allowed local authorities to take individualised decisions, which the Court has identified as an important element to ensure proportionality (see a contrario Guberina ¸ cited above, § 93). Moreover, the awards of DHP are made subject to certain safeguards, in particular the requirement on local authorities to take their decisions in light of the Human Rights Act and their Public Sector Equality Duty which in the Court’s understanding would prevent them from refusing to award DHP where that could mean the applicant’s need for appropriately adapted accommodation was not met. The Court observes that the first applicant has in fact been awarded DHP for several years following the changes to the Housing Benefit Regulation. Whilst the DHP scheme could be characterised as not ensuring the same level of certainty and stability as the previous, unreduced Housing Benefit, its provision with attendant safeguards, amounts to a sufficiently weighty reason to satisfy the Court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, the difference in treatment identified in the case of the first applicant was justified.", "(β) The second applicant", "103. In the case of the second applicant the Court notes that the legitimate aim of the present scheme – to incentivise those with ‘extra’ bedrooms to leave their homes for smaller ones – was in conflict with the aim of Sanctuary Schemes, which was to enable those at serious risk of domestic violence to remain in their own homes safely, should they wish to do so (see paragraphs 19-20 above).", "104. Given those two legitimate but conflicting aims the Court considers that the impact of treating the second applicant, or others housed in Sanctuary Schemes, in the same way as any other Housing Benefit recipient affected by the impugned measure, was disproportionate in the sense of not corresponding to the legitimate aim of the measure. The Government have not provided any weighty reasons to justify the prioritisation of the aim of the present scheme over that of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely. In that context, the provision of DHP could not render proportionate the relationship between the means employed and the aim sought to be realised where it formed part of the scheme aimed at incentivising residents to leave their homes, as demonstrated by its identified disadvantages (see paragraph 102 above).", "105. Accordingly, the imposition of Regulation B13 on this small and easily identifiable group has not been justified and is discriminatory. In coming to that conclusion, the Court also recalls that in the context of domestic violence it has found that States have a duty to protect the physical and psychological integrity of an individual from threats by other persons, including in situations where an individual’s right to the enjoyment of his or home free of violent disturbance is at stake (see Kalucza v. Hungary, no. 57693/10, § 53, 24 April 2012).", "(iv) Conclusion", "106. There has accordingly been no violation of Article 14 in conjunction with Article 1 Protocol 1 of the Convention in respect of the first applicant.", "107. There has been a violation of Article 14 in conjunction with Article 1, Protocol 1 of the Convention in respect of the second applicant.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "108. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "109. The second applicant claimed twelve thousand euros (EUR 12,000) in respect of non-pecuniary damage.", "110. The Government considered that nothing in the second applicant’s case justified an award of just satisfaction.", "111. The Court considers that the second applicant has undoubtedly suffered some distress and awards her ten thousand euros (EUR 10,000) in respect of non-pecuniary damage.", "B. Costs and expenses", "112. The second applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award in that respect.", "C. Default interest", "113. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1958 and lives in Tbilisi. She was represented by three Georgian lawyers – Ms M. Kurtanidze, Ms B. Pataraia and Ms S. Gogishvili – and two British lawyers – Mr Ph. Leach and Ms J. Gavron.", "3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "circumstances leading to the killing of the applicant’s daughter", "5. The applicant’s daughter, M.T., was born on 14 February 1981. In August 2013 she and L.M., without having their marriage officially registered, moved into a flat together in Rustavi, sharing with L.M.’s parents. M.T.’s daughter from her previous marriage was six years old at the time.", "6. The couple started having arguments shortly after moving in together, as it appeared that L.M. suffered from pathological jealousy.", "7. On 29 April 2014 L.M.’s father called the police because his son was abusing M.T. The police went to the flat and drew up a report stating that L.M. was heavily intoxicated and had threatened to kill the applicant out of jealousy. L.M.’s parents told the police officers that their son suffered from pathological jealousy and was otherwise mentally unstable, becoming particularly aggressive while drunk. The father further stated that his son’s violent behaviour and death threats against their daughter-in-law were frightening and difficult to cope with, and that he wanted the police to make L.M. leave the property. The report also stated that, M.T., fearing for her life, had also asked the police to take all the measures necessary to prevent her partner from behaving in a similar way again. A criminal investigation was never opened into the matter, and no restrictive measures were issued in respect of L.M.", "8. On 22 September 2014 M.T. called the police to say that L.M. had verbally and physically abused her. A police officer arrived at the scene and drew up a report indicating that M.T. had been physically assaulted by her partner, in an act classified as criminal battery, as a result of which she had called an ambulance and received medical assistance. The report also noted that she had been subjected to systematic verbal abuse and threats. L.M.’s mother confirmed her son’s abusive behaviour. The police officer then questioned L.M., who acknowledged that he was a jealous person and had indeed made death threats against M.T. multiple times. He assured the officer that he would never harm M.T. because he loved her and cared about their life as a couple. He promised that he would never assault his wife again. During the interview with the officer, L.M. also stated that he had previously been convicted of robbery and unlawful possession of drugs.", "9. On the same date M.T. was interviewed by an investigator from the criminal police unit. After the interview, the investigator issued a report which reclassified L.M.’s beating of M.T. as a less serious “shove”, adding that “M.T. state[d] that she [did] not need any kind of medical treatment”. The police officer advised the applicant’s daughter that it was not possible to arrest her partner or to request any other restrictive measure given the “minor” nature of the “family altercation”. An investigation was never opened into the matter.", "10. On 23 September 2014 M.T., traumatised by the previous day’s incident, left L.M. and moved in with her mother in Tbilisi. Following her departure, L.M. started sending her telephone messages containing various threats, including the following: “I can easily make you disappear”, “I’m going to commit suicide, I can’t live without you” and “No one can stop me, I’m not afraid of the police”. He also made death threats against M.T.’s young daughter.", "11. On 26 September 2014 M.T. reported to the police that L.M. had been threatening to kill her. A police officer’s report of that day states that M.T. submitted that she had been receiving insulting messages and threats from L.M. (including those described in the previous paragraph) and that she wanted the police to help her end the aggression once and for all. The police officer advised M.T. that no restrictive measures could be taken in respect of her partner because his violent conduct had not been witnessed by the police.", "12. On 27 September 2014 M.T. filed a criminal complaint against L.M. for further threats against her and her daughter. In particular, she reported that the previous evening L.M. had tried to break into her and her mother’s flat. As the women had managed to block the front door, he had tried to smash the door open, threatening to set fire to M.T.’s car and kill the applicant, her daughter and her granddaughter. As a result, L.M. was summoned and interviewed by the criminal police. According to the interview record, L.M. stated that he simply wanted to get back together with M.T, whom he loved deeply. The investigator from the criminal police then reclassified the reported death threats as verbal abuse and pleas to return to life as a couple. A criminal investigation was never opened, but a formal warning was issued against L.M. not to engage in any kind of dispute with M.T. or risk facing the full force of the law.", "13. On 28 September 2014, when M.T. was returning home, she was accosted by L.M. at the entrance to her block of flats. Having managed to escape and reach her flat safely, she immediately called the police. A report drawn up by a police officer that day stated that for the three previous days M.T. had been receiving text messages on her mobile telephone containing death threats from her partner, about which she had already lodged a complaint with the criminal police. The officer explained that the police could not arrest L.M. for just making threats, in the absence of a physical assault. According to the applicant’s recollection of the incident, the officer suggested, as an alternative solution, that M.T. tell her brothers about the violence she had been subjected to so that they could take revenge on L.M. by “breaking his bones”.", "14. Between late September and mid-October 2014 the applicant went to the Didube-Chughureti district police station in Tbilisi three times to report that L.M. had been stalking and threatening her daughter every day, urging the police to protect the latter. She also reported how he had once gone to her daughter’s workplace with a hand grenade and threatened to detonate it. The police did not take any action.", "15. On 15 October 2014 M.T. called the police and stated that L.M. had been at her place of work – she was an English language professor at a university – looking for her. She stated that she was extremely scared of him. A police officer went to see her and took a statement. No further steps were taken by the police, with the police officer reiterating the explanation that an aggressor had to be caught “red-handed” before being arrested or any other restrictive measure could be applied. M.T. urged the security guards of the university to never let L.M. into the building again.", "16. On 16 October 2014 M.T. called the police and told them that when she had been driving to her daughter’s school, she had been followed by L.M., who had tried to stop her and had almost crashed into her car with his car. A report drawn up by the police officer at the scene stated that M.T. submitted that she had been disturbed by her ex-partner, who had shown up at her workplace, engineered encounters with her in the street and interfered with her freedom of movement. The report ended with an explanation addressed to M.T. “to call the police the very moment he approach[ed] and verbally insult[ed] her or if he [made] a threat.” No further steps were taken by the police.", "17. On the same day the applicant went to the police herself to report that her and her daughter’s lives had become unbearable as L.M. had been terrorising them on a daily basis. The applicant indicated in her statements that she knew that her daughter, genuinely concerned for her life and safety, had been carrying defence pepper spray and a taser with her at all times. The applicant pleaded for State protection. Without resorting to a restraining order or any other restrictive measures against L.M., the police officers limited themselves to drawing up a new report, recording the applicant’s statements.", "18. According to the various records and reports drawn up by the police officers in relation to the incidents of domestic violence described above (see paragraphs 7-17 above), neither the applicant nor her daughter were ever advised of their procedural rights or the legislative and administrative measures of protection available to them under the Criminal Code and the Domestic Violence Act (see paragraphs 29-34 below).", "19. On 17 October 2014 L.M. went to M.T.’s workplace and asked her to come out of the classroom where she was holding a lesson for students so that he could talk to her. When she entered the corridor, he shot her dead with a gun. Immediately afterwards he turned the gun on himself and committed suicide.", "legal steps taken by the applicant", "20. On 17 October 2014 an investigation was opened into the double homicide and unlawful possession of a firearm by L.M. Domestic violence was added to the file as the motive a few days later. On 31 December 2014 the investigation was discontinued as the person liable for the crime was deceased.", "21. On 8 April 2015 the applicant filed a criminal complaint with the district public prosecutor’s office, requesting that an investigation be opened against the police officers dealing with her daughter’s domestic violence allegations case for negligence. As no reply was received, she reiterated the same complaint, further specifying that the inactivity of the police officers in question could also be considered gender-based discrimination. She lodged her complaint on at least four occasions between 5 August and 22 December 2015 for the attention of either the Chief Public Prosecutor’s Office, the authority competent to launch criminal inquiries against police officers, or the General Inspectorate of the Ministry of the Interior (“the MIA”), the unit in charge of disciplinary supervision of those working for the Ministry.", "22. While the prosecution authority left all the applicant’s complaints unanswered, the MIA replied to her on 18 January 2016, stating they had no general jurisdiction to open an investigation into a crime allegedly committed by its officials without the consent of the Chief Public Prosecutor of Georgia.", "23. On 21 September 2016 the applicant’s representative again contacted the Chief Public Prosecutor’s Office with a request for a criminal investigation to be launched against the police officers. She submitted that notwithstanding the number of occasions on which the applicant’s daughter had reported the physical violence and death threats against her to the police, they had failed to ascertain the high likelihood of danger and to open an investigation, inaction which had resulted in her murder. Furthermore, she emphasised that she considered the latter to be an indication of gender ‑ based discrimination. No reply was received.", "24. On 11 April 2017 the applicant enquired with the Chief Public Prosecutor’s Office whether it had received her previous letters and complaints and as to the reasons for its lack of response. By a letter of 5 May 2017, it confirmed that it had duly received all her previous correspondence, but did not provide any responses to her earlier complaints." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Domestic legal framework, as at the material timeCriminal Code of Georgia", "Criminal Code of Georgia", "Criminal Code of Georgia", "25. At the material time, Article 11 1 of the Criminal Code provided that those who could be considered “family members” and could thus be held liable for domestic crimes included former spouses and unmarried partners, as well as legal guardians and custodians.", "26. Under Article 53 § 3 1, discrimination on the grounds of, inter alia, gender identity was considered to be a bias motivation and an aggravating circumstance in the commission of a criminal offence, warranting the imposition of a more severe punishment than the commission of the same offence without such discriminatory overtones.", "27. Articles 117, 118 and 120 proscribed the offences of intentional infliction of serious bodily injury (punishable by three to six years’ imprisonment), less serious bodily injury (one to three years’ imprisonment) and minor bodily injury (up to two years’ imprisonment).", "28. Article 126 1 proscribed the offence of domestic violence, qualifying it as “abusive behaviour by a family member [as defined in Article 11 1 of the Code] consisting of either regular insults, blackmail or degrading treatment which has resulted in physical pain or mental suffering and which has not entailed the consequences provided for in Articles 117, 118 and 120 of the Code.” The offence of domestic violence was punishable by up to one year’s imprisonment.", "Law of 25 May 2006 on Combating Domestic Violence (“the Domestic Violence Act”) as in force at the relevant time", "29. Under section 9 of the Domestic Violence Act, criminal, civil and administrative mechanisms were used for the prevention and combating of domestic violence. Criminal mechanisms were to be applied where the domestic violence in question amounted to a criminal offence.", "30. Section 10 provided that either protective or restraining orders could be issued where there were allegations of domestic violence. Protective orders were issued by a court, which could indicate any type of operational measure aimed at protecting the purported victim. Restraining orders could be issued by a police officer at the scene of an incident of domestic violence, which could contain any type of measures aimed at containing the perpetrator. Restraining orders were enforceable immediately, but had to be submitted for judicial approval within twenty-four hours. Failure to comply with the measures indicated in protective and restraining orders could result in either criminal or administrative liability.", "31. In accordance with sections 11 and 12, protective and restraining orders could be requested either by the victim or a family member. Protective orders were valid for six months, whilst restraining orders were valid for one month. Section 13 specified that reconciliation between the victim and perpetrator could not suspend the legal force of an order.", "32. Under section 16, upon receiving reports of domestic violence, the police had to promptly respond by taking all the measures provided for by law. Those measures included, amongst other things, steps aimed at (i) ending the incident immediately; (ii) conducting separate interviews with the victim, perpetrator and all available witnesses; (iii) informing the victim of her rights; (iv) arranging, if necessary, for the victim to be transferred either to a medical centre or a shelter for victims of domestic violence, and (v) issuing a restraining order and taking all the other measures necessary for protecting the life and well-being of the victim. The police also had to draw up a comprehensive written report indicating all the details concerning the incident of domestic violence and information about the operational measures taken in response. The report had to be presented to a public prosecutor. If appropriate, the police were also under an obligation to notify the public prosecutor of the abuser’s failure to comply with a protective or restraining order, so that the question of whether to initiate criminal proceedings could be considered.", "33. Sections 17 and 18 provided that the Ministry of Labour, Health and Social Affairs was responsible for providing special temporary shelters for victims of domestic violence, as mentioned in the preceding section. The shelters had to be properly equipped and fit to accommodate victims in comfortable living conditions. A victim could initially stay in the shelter for three months, to be extended with the approval of the administration of the shelter if required. Section 18 1 also provided that crisis centres would be put in place, administered by the above-mentioned Ministry, in order to provide victims of domestic violence with psychological and medical assistance and legal aid.", "34. Section 20 provided for the possibility of isolating an alleged perpetrator of domestic violence from the victim by transferring him to a special rehabilitation centre under the responsibility of the Ministry of Labour, Health and Social Affairs. Such facilities had to be equipped with adequate living conditions and provide psychological and medical assistance.", "International materialsConvention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”)", "Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”)", "Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”)", "35. The Istanbul Convention, which applies to all forms of violence against women and provides a comprehensive framework to prevent, prosecute and eliminate such violence and to protect victims, was ratified by and entered into force with respect to Georgia on 19 May and 1 September 2017 respectively.", "Committee of Ministers’ Recommendation 2002(5) on the protection of women against violence", "36. In its Recommendation (2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe recommended, amongst others, that member States should “have an obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether those acts are perpetrated by the state or private persons, and provide protection to victims”.", "37. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children’s rights are protected during proceedings.", "United Nations Committee on the Elimination of Discrimination against Women (CEDAW)", "38. On 24 July 2014 CEDAW issued concluding observations on a periodic report of Georgia. The relevant excerpts read as follows:", "“ Stereotypes and harmful practices", "18. The Committee regrets that, notwithstanding the efforts by the State party to implement the recommendations contained in its previous concluding observations (CEDAW/C/GEO/CO/3, para. 18), patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men in the family and in society remain deeply rooted and are exacerbated by the increased sexualization of women in the media, which undermines the social status, participation in public life and professional careers of women. ...", "Violence against women", "20. The Committee notes the adoption of legislation on elimination of domestic violence, including protection of and assistance to victims, in 2006, the criminalization of domestic violence in 2012 and the adoption of an action plan to combat domestic violence and implement measures to protect victims, covering the period 2013-2015. The Committee also notes that the State party has signed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence and will ratify it in the third quarter of 2014. It is concerned, however, at the:", "(a) Growing number of women who are murdered by their husbands or partners and of women who are victims of other forms of violence, including psychological, physical, economic and sexual violence;", "(b) Low rate of reporting of cases of sexual and domestic violence against women owing to stigma and fear of the perpetrator, in addition to lack of trust in law enforcement agencies, which sometimes refuse to register complaints of domestic violence;", "(c) Lack of State-funded crisis centres and shelters for women who are victims of domestic violence, especially in rural areas; ...”", "United Nations Human Rights Committee", "39. On 19 August 2014 the Human Rights Committee, a body established under the International Covenant on Civil and Political Rights, issued concluding observations on a periodic report of Georgia. The relevant excerpt reads as follows:", "“While acknowledging the measures taken to combat domestic violence, including its criminalization in June 2012, the Committee is concerned that domestic violence remains underreported owing to gender stereotypes, lack of due diligence on the part of law enforcement officers in investigating such cases and insufficient protection measures for victims, including insufficient enforcement of restrictive and protective orders and a limited number of State-funded shelters and support services.”", "United Nations Special Rapporteur on Violence against Women", "40. On 9 June 2016 a report of the Special Rapporteur on violence against women, its causes and consequences on her mission to Georgia was published. The relevant excerpts read as follows:", "“ Violence against women, including domestic violence", "10. ... [D]omestic violence, including physical, sexual and psychological abuse, is still considered a private matter and not an issue of public concern in most parts of the country. The incidence of domestic violence is still underreported, partly owing to the lack of public awareness about this societal problem, fear of retaliation and stigmatization, a lack of trust in law enforcement agencies and the low quality of existing services and protection mechanisms for victims of violence.", "11. A national study conducted in 2009 shows that 1 in 11 of the women interviewed had experienced physical or sexual abuse at the hands of her husband or intimate partner and 34.7 per cent of women had been injured as a result of physical or sexual violence. Perpetrators of violence against women also include former intimate partners and family members. The main patterns of violence are physical, sexual, psychological and economic abuse, as well as coercion.", "12. During the first half of 2015, the Public Defender’s Office registered 1,478 cases of domestic violence. In 93 per cent of the cases registered, the perpetrator was a man and in 87 per cent of cases the victims were women. The Special Rapporteur regrets that the estimates for cases of domestic violence are based on the number of restraining orders issued, leaving invisible an undefined number of cases and not reflecting the real amplitude of this scourge. She is concerned that some cases are registered by the police under the category of “family conflict”, which may also render cases of domestic violence invisible. ...", "14. The Special Rapporteur notes that the factors most likely to increase the risk of intimate-partner violence include discriminatory gender stereotypes and patriarchal attitudes, women’s low awareness of their rights, the occurrence of child and forced marriages and a lack of economic independence. In addition, the consumption of alcohol, economic problems and unemployment also contribute to the occurrence of domestic violence. ...", "Femicides or gender-related killings of women", "19. In 2014, the Committee on the Elimination of Discrimination against Women expressed concern about the growing number of women killed by their intimate partners and recommended that measures should be taken to prevent such killings. In 2015, as part of the follow-up to the recommendations, the Public Defender’s Office published a special report on violence against women and domestic violence in Georgia, in which it provided data on 34 women killed because of their gender in 2014. The Special Rapporteur was informed that in 2015 fewer femicides and gender-related killings had been registered.", "20. The Special Rapporteur noted that in many cases of killings committed by former or current intimate partners, the victims had reported acts of violence to the police but had not been provided with adequate and effective protection ...", "Protection", "89. The mandate holder was informed that, in numerous cases, victims of domestic violence have to report cases of violence several times to the police before a restraining order is issued. For example, she was informed that in 2013, the police were called to more than 5,447 incidents of domestic “conflict”, but that only 212 restraining orders were issued. It was also reported that victims are not well informed by police officers, who sometimes do not explain that it is possible to request a restraining order. ...", "92. Nevertheless, the mandate holder expresses serious concerns about the persistence of stereotypes among police officers and the fact that some police officers in rural areas still issue “warning letters”, devoid of any legal value, through which perpetrators agree not to exercise violence against their partner. She stresses the fact that such letters do not provide protection for victims and do not permit a person to be held to account for acts of violence committed in the past.", "93. The Special Rapporteur is also concerned that some cases of violence are still registered by the police as “family conflict” cases and no assessment is carried out to ascertain the danger to the life of the victim. She was informed that in numerous cases the police do not provide adequate assistance, or information on shelters or restraining orders, to victims of domestic violence and that in many cases, investigations are halted when a victim withdraws her statement. Reports suggest that the police do not adequately document cases involving domestic violence and point to weaknesses with regard to the collection of evidence and the drafting of police reports, which can hinder the prosecution of perpetrators of violence. The mandate holder was informed that despite the new obligation for the police to immediately notify the victim of domestic violence when the convicted perpetrator leaves prison, the implementation of this requirement has been poor. All these issues may expose the victim to more violent, or even fatal, attacks by the perpetrator.", "Prosecution", "94. The Special Rapporteur was informed about difficulties in initiating criminal proceedings without the victim’s complaint, as there is no ex officio prosecution of perpetrators of domestic violence. Interlocutors also reported that prosecutors do not conduct timely and effective investigations into cases of domestic violence. The number of prosecutions is low, in comparison with the number of cases reported.”", "THE LAW", "ALLEGED VIOLATIONS OF ARTICLES 2 and 14 OF THE CONVENTION", "41. The applicant complained under Articles 2 and 14 of the Convention of the domestic authorities’ failure to protect her daughter from domestic violence and to conduct an effective criminal investigation into the circumstances which had contributed to her death. The relevant parts of these provisions read as follows:", "Article 2", "“1. Everyone’s right to life shall be protected by law ...”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ..., or other status.”", "Admissibility", "42. The Government did not submit any objection as to the admissibility of the complaints under Articles 2 and 14 of the Convention.", "43. The Court notes that these complaints are neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "44. The applicant submitted that, despite being aware of the danger posed to her daughter’s life by L.M.’s violent behaviour, the police had nevertheless failed to take the necessary preventive measures. She complained that they had inadequately and inaccurately gathered and recorded evidence when dealing with her daughter’s allegations of domestic violence. The applicant submitted that the inappropriate and discriminatory responses of the police and the prosecution authority to the numerous complaints she and her daughter had made about L.M.’s abusive behaviour, coupled with the relevant authorities’ failure to investigate the circumstances which had contributed to her daughter’s death and to hold all those involved criminally responsible, were central to the breach by the respondent State of its positive obligations under Articles 2 and 14 of the Convention.", "45. Without disputing the facts of the case as submitted by the applicant, and without contesting her legal arguments, the Government limited their comments to providing the Court with an overview of various legislative, budgetary and administrative measures taken by the respondent State in the field of combating domestic violence and, more generally, violence committed against women from 2014 onwards. In that respect, they submitted information about various training and awareness-raising courses provided, between 2015 and 2017, to the judicial, prosecutorial and law-enforcement authorities on the problem of violence against women.", "The third party’s submissions", "46. The Office of the Public Defender (Ombudsman) of Georgia submitted information about the work that it had undertaken on the protection of women’s rights in the country, with particular emphasis on the causes, extent and consequences of discrimination against women. The third party referred to the pattern of systemic violence committed against women as one such consequence. It submitted that violence against women in Georgia was widespread and occurred both in private and in public, in urban and rural areas. It was the persistence of entrenched patriarchal attitudes and gender stereotypes that made gender-based violence tolerated.", "The Court’s assessment", "47. Having regard to the applicant’s allegations that the domestic authorities’ double failure – the lack of protection of her daughter’s life and the absence of an effective investigation into the circumstances that had contributed to her death – stemmed from their insufficient acknowledgment of the phenomenon of discrimination against women, the Court finds that the most appropriate way to proceed would be to subject the complaints to a simultaneous dual examination under Article 2 taken in conjunction with Article 14 of the Convention (for application of the same methodology in the context of Article 3 complaints, see Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 36, 8 October 2020, with further references; and, as regards Article 2 complaints, see, for instance, Lakatošová and Lakatoš v. Slovakia, no. 655/16, § 78, 11 December 2018, with further references).", "(a) General principles", "48. Article 2 of the Convention requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002‑I). This substantive positive obligation involves, firstly, a primary duty on the State to secure the right to life by putting in place a legislative and administrative framework designed to provide effective deterrence against threats to the right of life (see Öneryıldız v. Turkey, [GC] no. 48939/99, § 89, ECHR 2004-XII). Secondly, in appropriate circumstances there is a duty on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007). Victims of domestic violence, who fall into the category of vulnerable individuals, are entitled to State protection, in particular (see Talpis v. Italy, no. 41237/14, § 99, 2 March 2017). Whenever there are any doubts about the occurrence of domestic violence or violence against women, an immediate response and further special diligence is required of the authorities to deal with the specific nature of the violence in the course of the domestic proceedings (see Kurt v. Austria [GC], no. 62903/15, § 165-66, 15 June 2021, and Volodina v. Russia, no. 41261/17, § 92, 9 July 2019).", "49. Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the obligation to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For such a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. This is a question which can only be answered in the light of all the circumstances of any particular case. The risk of a real and immediate threat must be assessed, taking due account of the particular context of domestic violence. In such a situation, it is not only a question of an obligation to afford general protection to society, but above all to take account of the recurrence of successive episodes of violence within a family (see Talpis, cited above, § 122). Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice (see Opuz v. Turkey, no. 33401/02, §§ 129-30, ECHR 2009). However, in domestic violence cases, perpetrators’ rights cannot supersede victims’ human rights to life and to physical and psychological integrity (see Talpis, cited above, § 123).", "50. The Court reiterates that the obligation to protect life under Article 2 of the Convention requires that there be some form of effective official investigation when individuals have been killed either by State officials or private individuals (see Mazepa and Others v. Russia, no. 15086/07, § 69, 17 July 2018). In order to be “effective” in the context of Article 2 of the Convention, an investigation must firstly be adequate, that is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible, where those responsible are State agents, but also where they are private individuals (see Lakatošová and Lakatoš, cited above, § 73). The obligation to conduct an effective investigation is an obligation which concerns the means to be employed, and not the results to be achieved (see Mižigárová v. Slovakia, no. 74832/01, § 93, 14 December 2010), but the nature and degree of scrutiny satisfying the minimum threshold of effectiveness depends on the circumstances of the particular case, and it is not possible to reduce the variety of situations which might occur to a bare checklist of acts of investigation or other simplified criteria (see Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000‑VI). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see, amongst many others, Talpis, cited above, § 106).", "51. The Court also reiterates that a State’s failure to protect women against domestic violence breaches their right to equal protection before the law and that this failure does not need to be intentional. It has previously held that “the general and discriminatory judicial passivity [creating] a climate that was conducive to domestic violence” amounted to a violation of Article 14 of the Convention (see Opuz, cited above, §§ 191 et seq.). Such discriminatory treatment occurred where it could be established that the authorities’ actions were not a simple failure or delay in dealing with the violence in question, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the complainant as a woman (see Talpis, cited above, § 141). Where there is a suspicion that discriminatory attitudes induced a violent act, it is particularly important that the official investigation be pursued with vigour and impartiality, having regard to the need to continuously reassert society’s condemnation of such acts and to maintain the confidence of minority groups in the ability of the authorities to protect them from discriminatory violence. Compliance with the State’s positive obligations requires that the domestic legal system demonstrate its capacity to enforce criminal law against the perpetrators of such violent acts (see Sabalić v. Croatia, no. 50231/13, § 95, 14 January 2021). Without a strict approach from the law‑enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes (see Identoba and Others v. Georgia, no. 73235/12, § 77, 12 May 2015, with further references).", "(b) Application of these principles to the circumstances of the case", "(i) Substantive positive obligations", "52. At the outset, having regard to the relevant criminal-law provisions, as well as the additional deterrence mechanism contained in the Domestic Violence Act (see paragraphs 25-34 above), the Court, in the absence of any arguments to the contrary by the applicant, is satisfied that there existed an adequate legislative and administrative framework designed to combat domestic violence against women in the country in general. It is rather the manner of implementation of this deterrent mechanism by the law-enforcement authorities, that is to say the issue of compliance with the duty to take preventive operational measures to protect the applicant’s life, which raises serious concerns in the present case. In its assessment of the latter issue, the Court must answer the following three questions: whether a real and immediate danger emanating from an identifiable individual existed, whether the domestic authorities knew or ought to have known of the threat, and, should the above two questions be answered in the affirmative, whether the authorities displayed special diligence in their response to the threat (see, for instance, Opuz, cited above, §§ 130 and 137-49, and also compare Kurt, cited above, §§ 161-79).", "53. The Court notes that, according to the material in the case file, within a very tight time frame of some six months, between 29 April and 16 October 2014, M.T. and the applicant requested help from the police on at least eleven occasions. In their statements, they always clearly conveyed, by describing all the relevant details, the level of violence in L.M.’s behaviour. The latter himself admitted on one occasion that he had been threatening to kill the applicant’s daughter. L.M.’s parents also confirmed to the police the dangerousness of their son’s conduct, especially when drunk. Moreover, the police knew that L.M. suffered from pathological jealousy and had other mental instabilities, had difficulties in managing his anger and furthermore had a criminal record and history of drug and alcohol abuse. The police were also aware that M.T. carried various defence weapons with her all the time and experienced extreme fear and anxiety at seeing her partner approaching either her flat or workplace (see paragraphs 7-18 above). All these considerations confirmed the reality of the danger caused by L.M. to M.T. Furthermore, when examining the history of their relationship, the Court notes that the violence to which the applicant’s daughter was subjected cannot be seen as individual and separate episodes but must instead be considered a lasting situation. Where there is a lasting situation of domestic violence, there can hardly be any doubt about the immediacy of the danger posed to the victim (compare Opuz, cited above, §§ 134 and 135; Talpis, cited above, § 121; Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 52 and 53, 15 January 2009; and contrast Tërshana v. Albania, no. 48756/14, § 151, 4 August 2020). The Court thus concludes that the police knew or certainly ought to have known of the real and immediate threat to the safety of the applicant’s daughter.", "54. As regards the requirement of special diligence, the Court discerns several major failings on the part of the law-enforcement authorities. Firstly, there are indications of inaccurate or incomplete evidence-gathering by the police officers. In this connection, the Court considers that shortcomings in the gathering of evidence in response to a reported incident of domestic violence can result in an underestimation of the level of violence actually committed, can have deleterious effects on the prospects of opening a criminal investigation and even discourage victims of domestic abuse, who are often already under pressure from society not to do so, from reporting an abusive family member to the authorities in the future. It is also significant in this connection that, when recording the incidents, the police officers do not appear to have conducted a “lethality risk assessment” in an autonomous, proactive and comprehensive manner (compare Kurt, cited above, § 168). They did not attach sufficient importance to potential trigger factors for the violence – such as, for instance, L.M.’s alcohol dependency, his pathological jealousy further fuelled by the fact that he and M.T. had separated, and so on – and failed to take into account the victim’s own perceptions of danger, that is, how extremely fearful the applicant’s daughter actually was (see paragraphs 7, 10 and 14-16 above, compare Talpis, cited above, § 118). The police preferred to downgrade the classification of an incident to a “minor family altercation” (compare Kontrova, cited above, § 54). The Court further observes in this connection that, in her relevant report on Georgia, the UN Special Rapporteur on violence against women pointed to the very same shortcomings in the police’s initial responses to domestic violence allegations, identifying those failings as systemic (see paragraph 40 above).", "55. Furthermore, it is striking to note that, whilst the domestic legislative framework provided for temporary restrictive measures in respect of the abuser, such as protective and restraining orders, with the latter being able to be immediately issued by a police officer at the scene, the relevant domestic authorities did not resort to them at all (see paragraphs 30 and 31 above, and compare with Talpis, cited above, §§ 113 and 114). There even existed the possibility of isolating the abuser in a special rehabilitation centre (see paragraph 34 above), but the police did not consider that possibility either. What is more, it does not appear from the various reports and records drawn up by the police officers that either the applicant or her daughter were advised by the police of their procedural rights and of the various legislative and administrative measures of protection available to them. On the contrary, it appears that they were misled as the police referred to their inability to arrest the abuser or to apply any other restrictive measure (see paragraphs 9, 11, 13 and 15-16 above). Again, it does not escape the Court’s attention that the reluctance of the police to resort to issuing restraining orders was another systemic problem identified by the UN Special Rapporteur on violence against women (see paragraph 40 above). Even though the police failed to use their best endeavours to appropriately report the various incidents of domestic abuse, the Court notes that, owing to the numerous criminal complaints repeatedly filed by M.T. and the applicant, which clearly and convincingly revealed the gravity of L.M.’s alleged conduct – infliction of physical injuries, incessant verbal death threats, intention to cause a traffic accident, a threat to blow up the victim with a hand grenade, and so on – there still existed plenty of evidence warranting the institution of criminal proceedings against L.M., which would have opened up the possibility of placing him in pre-trial detention. It is deplorable that the law-enforcement authorities did not do so.", "56. The Court further observes that the inactivity of the domestic law-enforcement authorities, in particular the police, appears to be even more unforgivable when assessed against the fact that, in general, violence against women, including domestic violence, has been reported to be a major systemic problem affecting society in the country at the material time. According to the relevant statistical data, domestic violence mainly affected women, who accounted for roughly 87% of victims. Several authoritative international monitoring bodies, as well as the Office of the Public Defender of Georgia, attested to this blight on society, reporting that the causes of violence against women were linked to, inter alia, discriminatory gender stereotypes and patriarchal attitudes, coupled with a lack of special diligence on the part of the law-enforcement authorities (see paragraphs 38 ‑ 40 and 46 above). The domestic authorities responsible thus knew or should have known of the gravity of the situation affecting many women in the country and should have thus shown particular diligence and provided heightened State protection to vulnerable members of that group (compare Identoba and Others, cited above, § 72, and also Tërshana, cited above, § 157). In the light of the foregoing, the Court can only conclude that the general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence, of which the present case is a perfect illustration, created a climate conducive to a further proliferation of violence committed against women. That being so, the respondent State’s failure to take preventive operational measures aimed at protecting the applicant’s daughter, irrespective of whether that failure was intentional or negligent, undermined the rights of the applicant and her daughter to equal protection before the law (compare Opuz, cited above, §§ 184-202, and Talpis, cited above, §§ 145 and 148).", "57. All in all, the Court finds that the law-enforcement authorities demonstrated a persistent failure to take steps that could have had a real prospect of altering the tragic outcome or mitigating the harm. In flagrant disregard for the panoply of various protective measures that were directly available to them, the authorities failed to display special diligence to prevent gender-based violence against the applicant’s daughter, which culminated in her death. When assessed against the similar findings of the international and national monitoring bodies, the Court finds that the police inaction in the present case could be considered a systemic failure. The respondent State has thus breached its substantive positive obligations under Article 2 of the Convention read in in conjunction with Article 14.", "(ii) Procedural positive obligations", "58. The Court observes that the perpetrator of the killing was a private individual, and that his responsibility in that regard was never called into question. L.M. immediately killed himself, and any further application of criminal-law mechanisms in respect of him thus became futile.", "59. As regards the question of whether, in the particular circumstances of the present case, the State had a further positive obligation to investigate inaction of any of the law-enforcement officials involved and hold them responsible, the Court reiterates that, in cases concerning possible responsibility on the part of State officials for deaths occurring as a result of their alleged negligence, the obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see, among many other authorities, Kotilainen and Others v. Finland, no. 62439/12, § 91, 17 September 2020). However, there may be exceptional circumstances where only an effective criminal investigation would be capable of satisfying the procedural positive obligation imposed by Article 2. Such circumstances can be present, for example, where a life was lost or put at risk because of the conduct of a public authority that goes beyond an error of judgment or carelessness. Where it is established that the negligence attributable to State officials or bodies goes beyond an error of judgment or carelessness, in that the authorities in question – fully realising the likely consequences and disregarding the powers vested in them – failed to take measures that were necessary and sufficient to avert the risks, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy that individuals may exercise on their own initiative (see Zinatullin v. Russia, no. 10551/10, § 33, 28 January 2020).", "60. The Court has already established above that the inactivity of the law-enforcement authorities was one of the causes of the descent of the domestic abuse into the killing of the victim. Given that the authorities knew or should have known of the high level of risk that would be faced by the victim if they failed to discharge their policing duties, the Court considers that their negligence went beyond a mere error of judgment or carelessness. However, the prosecution authority disregarded the applicant’s numerous criminal complaints and made no attempt to establish the identity of the police officers, to interview them and to establish their responsibility in relation to their failure to respond properly to the multiple incidents of gender-based violence that preceded the killing of the victim. Furthermore, having lodged a criminal complaint seeking the necessary investigation into the actions of law enforcement in this case, the applicant repeatedly sought but failed to receive information from the Chief Public Prosecutor’s Office. Indeed, it is noteworthy that it took the latter over two years to acknowledge receipt of her correspondence, no further information being provided even then (see paragraphs 21 and 24 above). Not even a disciplinary probe into the alleged police inaction was opened, despite the fact of the applicant’s having complained to the body in charge of disciplinary supervision of police officers (see paragraph 21 above and contrast Bljakaj and Others v. Croatia, no. 74448/12, § 123, 18 September 2014), and no steps were taken to train the police officers on how to respond properly to allegations of domestic violence for the future (see, mutatis mutandis, Lovyginy v. Ukraine, no. 22323/08, § 99, 23 June 2016). However, in the light of the relevant circumstances of the case, namely the existence of discriminatory overtones associated with violence committed against women (see paragraph 56 above), the Court considers that there was a pressing need to conduct a meaningful inquiry into the possibility that gender-based discrimination and bias had also been a motivating factor behind the alleged police inaction (compare, mutatis mutandis, Aghdgomelashvili and Japaridze, cited above, § 40). These shortcomings amount to a breach by the respondent State of its procedural positive obligations under Article 2 read in conjunction with Article 14 of the Convention (compare, mutatis mutandis, Zinatullin, cited above, §§ 40, 41 and 47).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "61. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "62. The applicant claimed 18,240 Georgian laris (GEL – approximately 4,360 euros (EUR)) in respect of pecuniary damage explaining that, owing to M.T.’s death, her granddaughter had lost economic support from her mother. The applicant also claimed EUR 40,000 in respect of non-pecuniary damage on account of the stress and anguish she had experienced as result of the loss of her daughter.", "63. The Government submitted that the amounts claimed were not justified in the circumstances of the case.", "64. The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention, and that this may, where appropriate, include compensation for loss of earnings (see, among other authorities, Imakayeva v. Russia, no. 7615/02, § 213, ECHR 2006-XIII (extracts)). However, M.T.’s daughter, who had been economically dependent on her mother, is not an applicant in the present case, and the applicant did not lodge her application on behalf of her granddaughter. Furthermore, the applicant did not claim that she had herself been financially dependent on her daughter before her death (compare, for instance, Kukhalashvili and Others v. Georgia, nos. 8938/07 and 41891/07, § 162, 2 April 2020, and Albekov and Others v. Russia, no. 68216/01, §§ 125‑27, 9 October 2008). Thus, having regard to the fact that the applicant did not show that her own pecuniary interests had been affected by the death of her daughter, the Court does not find it appropriate in the circumstances of this case to make any award to the applicant in respect of pecuniary damage.", "65. On the other hand, the Court accepts that the applicant must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It finds it appropriate to award the applicant EUR 35,000 under this head.", "Costs and expenses", "66. The applicant claimed 6,975 pounds sterling (GBP – approximately EUR 8,000) for the costs of her representation before the Court by one of her British lawyers. No claim was made with respect to the applicant’s representation by the remaining four (three Georgian and one British) lawyers (see paragraph 2 above). The claimed amount was based on the number of hours which the British lawyer in question had spent on the case (forty-six hours and thirty minutes) and the lawyer’s hourly rate (GBP 150). No copies of the relevant legal service contracts, invoices, vouchers or any other supporting financial documents were submitted. The applicant additionally claimed GBP 402 and 351 United States dollars (approximately EUR 289) for postal expenses, translation expenses and other types of administrative expenses incurred by the same British lawyer.", "67. The Government submitted that the claims were unsubstantiated and excessive.", "68. The Court notes that a representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017). In the present case, the applicant did not submit documents showing that she had paid or was under a legal obligation to pay the fees charged by her British representative or the expenses incurred by her. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred (ibid., § 372; Aghdgomelashvili and Japaridze, cited above, § 61; and Vazagashvili and Shanava v. Georgia, no. 50375/07, §§ 105-08).", "69. It follows that the claims must be rejected.", "Default interest", "70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The first and second applicants were born in 1972 and 2013 respectively and live in Georgia. They were represented before the Court by five Georgian lawyers – Ms T. Dekanosidze, Ms T. Abazadze, Ms N. Jomarjidze, Ms A. Arganashvili and Ms A. Abashidze – and four British lawyers – Mr Ph. Leach, Ms K. Levin, Ms J. Evans and Ms J. Gavron.", "3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "circumstances leading to C’s killing", "5. The first and second applicants are the mother and son of C, who was born on 24 November 1994 and killed by her partner, D, the second applicant’s father, on 25 July 2014 (see paragraph 17 below).", "6. In 2011 C, who was seventeen years old, was kidnapped for marriage by D, a twenty-two years’ old police officer serving in the small city where she lived. As C was under constant threat from D, she began cohabiting with him. The couple never registered their marriage.", "7. The couple’s cohabitation, which was marked often by disputes fuelled by D’s jealousy, lasted from December 2011 until June 2012, when C, exhausted by the physical and psychological harassment from her partner, returned to her parents’ house. She was two months pregnant at the time.", "8. From December 2011, C and her family became the target of regular verbal and physical abuse from D. He threatened to kill C and her parents, referring to his official status as a police officer and strong connections within the police. The family members were afraid to report the majority of the incidents to the police but still managed to report a number of the most violent ones.", "9. On an unspecified date in July 2012 C called the police, complaining that D had threatened to kill her mother, the first applicant. She received no response to her complaint.", "10. According to the materials available in the case file, on 31 August 2013 D, following an altercation over child support payments, beat up C in her parents’ house. The police were called and three patrol officers, all of whom were D’s acquaintances, interviewed C in his presence. As confirmed by several independent eyewitnesses, such as neighbours, D was on good terms with the officers, who were his immediate colleagues, during the interview. One of the officers told C that wife-beating was commonplace and that not much importance need be attached to it. When the officers were interviewing C and she, who was bearing signs of recent physical abuse, started reporting the above ‑ mentioned details of her ill-treatment, D interfered in the process, mocking C’s responses and shouting at her, but the officers did not attempt to stop him. Without interviewing the alleged abuser, the police officers drew up a report that did not accurately reflect the extent of the violence of the incident, referring to it as “a minor family altercation related to child support payments”. C initially refused to sign the report, but D forced her to do so, making threats to kill her, which were overheard by the police officers. Prior to leaving the house, one of the police officers told C not to contact them in the future without a valid reason or face being fined for wasting police time as they were busy with other, more serious matters. D left C’s house with the officers and they drove away in the same car.", "11. On the same day, C filed a criminal complaint with a local public prosecutor’s office. She complained about D, for physically abusing her, and the three police officers, for failing to carry out their duties with due diligence. In her complaint, she also pointed out that her former partner had been constantly harassing her, resorting to threats to kill and physical violence. He had also threatened to abduct their child. She asked the prosecution authority to take all the measures necessary to put an end to D’s violent behaviour. She also added that since her abuser was a police officer, she could not trust that the police would come to her assistance, hence she had addressed her complaint to the public prosecutor’s office.", "12. Following C’s criminal complaint, on 4 September 2013 a public prosecutor interviewed C, D and one of the police officers regarding the incident of 31 August 2013, both of whom denied that C had been ill-treated in any way. D’s version of events was that they had simply had an argument over child support payments. On 9 September 2013 D gave a written undertaking for the attention of the prosecution authority that he would never again verbally or physically abuse either C or her family members. The prosecution authority was satisfied with that undertaking and decided not to launch a criminal investigation.", "13. On 5 July 2014 C complained to the General Inspectorate of the Ministry of the Interior (“the General Inspectorate”), the division in charge of conducting disciplinary inquiries against police officers, that D had physically assaulted her twice in public, on 3 and 5 July 2014.", "14. According to the material available in the case file, numerous independent witnesses confirmed in their written statements that D had been using various attributes of his official position to commit abuse against C between April 2011 and July 2014. Notably, during that period, he had (i) intimidatingly flaunted his service pistol on at least seven occasions, (ii) regularly threatened to bring false charges against C’s father and brother if she reported their altercations to the law-enforcement authorities and (iii) often said that he was not afraid of the law-enforcement machinery as he was part of it himself. All this information was made known to both the police and prosecution authority.", "15. On 20 July 2014 D was promoted to the rank of senior police lieutenant.", "16. On 25 July 2014 a representative of the General Inspectorate summoned C for an interview in relation to the two incidents referred to in her complaint of 5 July 2014 (see paragraph 13 above). During the interview she reiterated that D had been systematically subjecting her to physical and psychological harassment. Whilst she wanted the General Inspectorate to intervene and put an end to her former partner’s violent behaviour, she asked it not to be too harsh with him because he was the father of her child.", "17. Shortly after C had left the interview, D stalked her in the street. Eyewitnesses saw them having a tense and loud argument in a public park. All of a sudden, D pulled his service pistol out and fired five shots at C’s chest and stomach at close range. She died instantly.", "criminal proceedings against D", "18. On the same day, a criminal case was opened and D was charged with C’s murder. When questioned the following day, he told the investigators that his relationship with C had been strained from the very beginning because she had always wanted to move to Tbilisi, the capital, to pursue a modelling career, to which he had strongly objected. He had become particularly jealous after their separation because he had started seeing her date other men. He also stated that what had served as a trigger for his rage, and what had made him use his gun on the day of the shooting, had been something C had said, in an intentionally provocative and vulgar way, namely that her private and sex life did not concern him at all. In his view, C had “humiliated him”, and that was why he had used a gun on her.", "19. By a judgment of 17 April 2015, the Kutaisi City Court found D guilty of premeditated murder of a family member and sentenced him to eleven years’ imprisonment. D pleaded insanity, claiming that he had shot C because of an episodic mental disorder caused by pathological jealousy. That line of defence was however dismantled by the results of a court-ordered forensic examination of D’s mental health. The decision became final on 15 February 2016. The conviction did not refer to the possible role of gender-based discrimination in the commission of the crime (see paragraph 29 below).", "criminal COMPLAINTS against THE relevant LAW ‑ ENFORCement authorities", "20. On 22 January 2015 the first applicant, acting on behalf of herself and the second applicant, filed a complaint with the Chief Public Prosecutor’s Office, requesting that a criminal investigation be launched into the failure of the relevant police officers and public prosecutors to protect her daughter’s life and give proper consideration to the repeated reports of domestic violence. The first applicant argued that the State agents’ negligent conduct might have been influenced by gender-based discrimination.", "21. On 19 February 2015 the prosecution authority opened a criminal case into the police officers’ alleged failure to properly respond to C’s allegations of domestic violence and interviewed the three patrol officers who had attended the incident of 31 August 2013 (see paragraphs 10 and 11 above). According to the officers, they did not think that the incident was of a violent nature. On 27 February 2015 the first applicant was interviewed and told the prosecution authority the entire history of the strained relationship between her daughter and D, including his repeated use of violence. As regards the incident of 31 August 2013, she confirmed the sequence of events as described above (see paragraph 10 above).", "22. Between March and August 2015, the public prosecutor’s office interviewed five witnesses to the incident of 31 August 2013, who were either relatives of A and C or their neighbours. The majority of them gave evidence indicating that the incident was of a particularly violent nature.", "23. On 2 March, 29 April and 23 June 2015 and 21 January 2016 the first applicant repeatedly enquired with the Chief Public Prosecutor’s Office about the progress of the investigation, if any, and on 20 March 2015 it replied that a criminal investigation had been launched into the alleged negligence of the police officers. The first applicant received no response to her complaint directed against the public prosecutors (see paragraph 20 above).", "24. By letters of 1 and 16 March 2016, a regional public prosecutor’s office informed the first applicant that the criminal investigation into the alleged negligence of the police officers was pending, but that no charges had been pressed against anyone and it was not necessary to grant her victim status at that time. She received no response to her complaint directed against the public prosecutors.", "25. On 17 March 2016 the first applicant again enquired with the Chief Public Prosecutor’s Office whether a criminal investigation into the actions of the public prosecutors had been launched. She received no response.", "civil ACTIONS against the law-enforcement authorities", "26. On 22 January 2015 the first applicant, acting on behalf of herself and the second applicant, sued the Ministry of the Interior and Chief Public Prosecutor’s Office under Article 1005 of the Civil Code for failure to protect her daughter’s life, claiming compensation in respect of non-pecuniary damage in the amount of 120,000 Georgian laris (GEL – approximately 34,000 euros (EUR)).", "27. By a judgment of 24 July 2015, the Tbilisi City Court allowed the claim in part, awarding compensation in respect of non-pecuniary damage in the amount of GEL 20,000 (approximately EUR 7,000). The court found that there was a causal link between the inactivity of the relevant police officers and public prosecutors and C’s killing. It emphasised, in that connection, that the public authorities were under an obligation to respond promptly and effectively to allegations of discrimination. That obligation had however been blatantly disregarded in the case in issue, in breach of Articles 3 and 8 of the Convention. The court observed, referring to the incident of 31 August 2013, that the police officers had not interviewed C or the witnesses to the incident, had not issued a restraining order against D and had not taken measures aimed at restricting the use of his service pistol. As regards the role of the public prosecutors, the court noted that they had failed in their obligation to conduct an adequate criminal investigation into the violent incidents in question. The court concluded that the respondent authorities, who ought to be considered liable together with the relevant individual officials, had failed to take measures to put an end to the gender-based discrimination and protect C’s life.", "28. The judgment of 24 July 2015 became final on 29 June 2017, when the Supreme Court of Georgia finally terminated the proceedings." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "29. On 27 March 2012 an amendment to Article 53 of the Criminal Code of Georgia was adopted whereby discrimination was recognised as a bias motivation and an aggravating circumstance in the commission of a criminal offence. The relevant provision reads as follows:", "Article 53 § 3 (1)", "“The commission of any offence listed in this Code on the grounds of any type of discrimination, such as, for instance and not exclusively, that linked to race, skin colour, language, sex, sexual orientation and gender identity, age, religion, political and other views, disabilities, citizenship, national, ethnic or social background, origin, economic status or societal position or place of residence shall be an aggravating circumstance.”", "30. Other relevant domestic law, as well as international material concerning violence against women in Georgia, is comprehensively summarised in paragraphs 25-40 of the Court’s judgment in the case of Tkhelidze v. Georgia (no. 33056/17, 8 July 2021).", "THE LAW", "ALLEGED VIOLATION OF ARTICLEs 2 and 14 OF THE CONVENTION", "31. Relying on Articles 2, 3 and 14 of the Convention, the applicants complained that the domestic authorities had failed to protect C from domestic violence and conduct an effective criminal investigation into the circumstances contributing to her death.", "32. Having regard to its case-law and the nature of the applicant’s complaints, the Court, being master of the characterisation to be given in law to the facts of a case, considers that the issues raised in the present case should be examined solely from the perspective of the substantive positive and procedural aspects of Article 2 of the Convention, taken in conjunction with Article 14 (compare Kurt v. Austria [GC], no. 62903/15, § 104, 15 June 2021). The relevant parts of these provisions read as follows:", "Article 2", "“1. Everyone’s right to life shall be protected by law ...”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ..., or other status.”", "Admissibility", "33. The Government submitted that the applicants had lost victim status for the purposes of Article 34 of the Convention given the outcome of the criminal proceedings initiated against D (see paragraphs 18-19 above) and civil proceedings initiated against the law-enforcement authorities (see paragraphs 26-28 above). In particular, they submitted that since the perpetrator of C’s killing had been promptly identified and sufficiently punished and the domestic civil courts had duly acknowledged the law-enforcement authorities’ wrongful conduct and even awarded the applicants compensation, the application should be declared inadmissible as incompatible ratione personae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4.", "34. The applicants disagreed with the Government’s objection, arguing that the various domestic remedies pursued by them had not resulted in either sufficient acknowledgment of the violation of their various rights under the Convention or sufficient redress. They specified in this connection that the crux of their application was the inaction of the law-enforcement authorities, which had significantly contributed to the domestic violence and death of C, their next of kin.", "35. The Court observes that in the present case the question of possible loss by the applicants of their victim status on the basis of the outcome of the various sets of domestic proceedings is closely linked to the issue of the effectiveness of the investigation into the circumstances contributing to the death of their next of kin. The Court thus considers it appropriate to join this matter to the merits of the complaint made by the applicants under the procedural limb of Article 2 of the Convention, read together with Article 14 (compare, for instance, Petrović v. Serbia, no. 40485/08, §§ 64 and 65, 15 July 2014, and Özcan and Others v. Turkey, no. 18893/05, § 55, 20 April 2010).", "36. The Court further notes that the application is neither manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "37. The applicants submitted that although they had been aware of the danger to C’s life from D’s violent behaviour, the police and prosecution authority had nevertheless failed to take the necessary preventive measures. They complained that the law-enforcement authorities had inadequately and inaccurately gathered and recorded evidence when dealing with the allegations of domestic violence. The applicants further submitted that the inappropriate and discriminatory responses of the police and prosecution authority to the complaints made by C about her partner’s abusive behaviour, coupled with their failure to investigate the circumstances contributing to her death and hold the implicated law-enforcement agents criminally responsible for their failure to protect her life, were at the heart of the breach by the respondent State of its substantive positive obligations under Articles 2 and 14 of the Convention.", "38. Without disputing the facts of the case as submitted by the applicants, and without contesting their legal arguments submitted on the merits of the relevant complaints, the Government limited their comments to providing the Court with an overview of various legislative, budgetary and administrative measures taken by the respondent State to tackle domestic violence and, more generally, violence committed against women from 2014 onwards. In that connection, they submitted information about various training and awareness-raising courses provided, between 2015 and 2017, to the judicial, prosecutorial and law-enforcement authorities on the problem of violence against women.", "The Court’s assessment", "39. Having regard to the applicants’ allegations that the authorities’ double failure – the lack of protection of their next of kin from domestic violence and the absence of an effective investigation into the law-enforcement authorities’ inaction – stemmed from their insufficient acknowledgment of the phenomenon of discrimination against women, the Court finds, firstly, that the most appropriate way to proceed would be to subject the complaints to a simultaneous dual examination under Article 2 taken in conjunction with Article 14 of the Convention (see Tkhelidze v. Georgia, no. 33056/17, § 47, 8 July 2021, with further references). Secondly, given that the issue of the applicants’ victim status has been joined to the merits of their complaint under the procedural limb of Article 2 of the Convention, the Court considers it appropriate to start its examination of the merits of the application with the latter complaint. Thirdly, the Court emphasises that the present case is not directly about the violent actions of D, which finally led to his criminal conviction following the murder of C., but rather about the authorities response, or a lack thereof, to his actions and C and her family’s complaints prior to and after her murder. The fact that he was a serving police officer and an acquaintance of those who had been investigating C’s complaints may therefore be relevant to the Court’s assessment of questions relating to the procedural and substantive limbs of Article 2 and alleged loss of victim status.", "(a) General principles", "40. The Court reiterates that, under the principle of subsidiarity, it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application (see Selahattin Demirtaş v. Turkey (no. 2), no. 14305/17, § 218, 20 November 2018). The principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance (see, for instance, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 49, 20 December 2007).", "41. In cases concerning possible responsibility on the part of State officials for deaths occurring as a result of their alleged negligence, the obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. However, there may be exceptional circumstances where only an effective criminal investigation would be capable of satisfying the procedural positive obligation imposed by Article 2. Such circumstances can be present, for example, where a life was lost or put at risk because of the conduct of a public authority that goes beyond an error of judgment or carelessness. Where it is established that the negligence attributable to State officials or bodies goes beyond an error of judgment or carelessness, in that the authorities in question – fully realising the likely consequences and disregarding the powers vested in them – failed to take measures that were necessary and sufficient to avert the risks, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy that individuals may exercise on their own initiative (see Tkhelidze, cited above, § 59).", "42. As regards the general principles concerning the State’s relevant substantive positive obligations under Articles 2 and 14 of the Convention, they were comprehensively summarised in Tkhelidze, the first case exposing the State’s failure to tackle domestic violence and violence against women in general (cited above, §§ 48-51). In addition, the Court further reiterates that a State’s failure to protect women against domestic violence breaches their right to equal protection before the law and that this failure need not be intentional. It has previously held that “general and discriminatory judicial passivity [creating] a climate ... conducive to domestic violence” amounts to a violation of Article 14 of the Convention (see Opuz v. Turkey, no. 33401/02, §§ 191 et seq., ECHR 2009). Such discriminatory treatment occurs where the authorities’ actions are not a simple failure or delay in dealing with the violence in question, but amount to repeatedly condoning such violence and reflect a discriminatory attitude towards the complainant as a woman (see Talpis v. Italy, no. 41237/14, § 141, 2 March 2017). Indeed, an immediate response to allegations of domestic violence is required from the authorities who must establish whether there exists a real and immediate risk to the life of one or more identified victims of domestic violence by carrying out an autonomous, proactive and comprehensive risk assessment (see Kurt, cited above, § 190).", "(b) Application of these principles to the circumstances of the present case", "(i) Procedural obligations and victim status", "43. The Court observes that, since the crux of the application is that the inactivity and negligence of the law-enforcement authorities was one of the main reasons why the domestic abuse was allowed to escalate, culminating in C’s murder, and given that the authorities knew or should have known of the high level of risk faced by her if they failed to discharge their policing duties properly – as she was complaining about a fellow police officer, with access to a firearm – and were thus in a position to establish whether he had been involved in similar incidents in the past or his propensity to violence, the Court considers that their inactivity and negligence went beyond a mere error of judgment or carelessness. Consequently, amongst the remedies used by the applicants at domestic level, the most pertinent for the purposes of Article 35 § 1 of the Convention were the criminal proceedings instituted against the police officers and public prosecutors involved (see paragraphs 20-25 above and compare Tkhelidze, cited above, § 60).", "44. However, the Court notes with concern that the competent investigative authority neither made an attempt to establish responsibility on the part of the police officers for their failure to respond properly to the multiple incidents of gender-based violence occurring prior to C’s murder nor deem it necessary to grant the applicants victim status. No disciplinary inquiry into the police’s alleged inaction was even opened, and no steps were taken to train the police officers in question on how to respond properly to allegations of domestic violence in the future. As regards the part of the applicants’ complaint calling into question the inaction of the public prosecutors, no response was received whatsoever – the applicants repeatedly sought but failed to receive information from the investigative authority on this aspect of their criminal complaint. However, in the light of the relevant circumstances of the case, in particular the existence of indices pointing to possible gender based discrimination as at least partly informing the response of law enforcement to the complainant and the complaints and the fact that they permitted the alleged perpetrator to participate in the questioning of the complainant and victim of the alleged domestic abuse, the Court considers that there was a pressing need to conduct a meaningful investigation into the response of law enforcement and their inaction, which might have been motivated by gender-based discrimination, in the face of C’s complaints (compare Tkhelidze, cited above, § 60). The fact that the alleged perpetrator of the violence of the abuse was a member of law enforcement himself, and that the threats he had used against the victim and her family referred to this fact and what he considered to be his impunity, rendered the need for a proper investigation all the more pressing.", "45. Although the above considerations are sufficient for the Court to conclude that there has been a breach by the respondent State of its procedural obligations under Article 2 read in conjunction with Article 14 of the Convention (ibid., §§ 58-60), it notes in addition the insufficiency of the redress offered by the two other sets of domestic proceedings – the criminal prosecution of the perpetrator and civil proceedings brought by the applicants against the law-enforcement authorities. With respect to the former, the Court notes that D’s trial and conviction did not involve any examination of the possible role of gender-based discrimination in the commission of the crime (see paragraph 19 above). As regards the latter, whilst it was undoubtedly positive that the domestic courts acknowledged the law-enforcement authorities’ failure to take measures aimed at putting an end to the gender-based discrimination and protect C’s life, the Court notes that they did not expand their scrutiny to the question of whether the official tolerance of incidents of domestic violence might have been conditioned by the same gender bias. Nor have the courts addressed the question of whether there had been indications of the relevant law-enforcement officers’ acquiescence or connivance in the gender-motivated abuses perpetrated by their colleague, D. These gaps in the response of the domestic courts do not sit well with the respondent State’s heightened duty to tackle prejudice-motivated crimes.", "46. The Court thus concludes that, in the particular circumstances of the present case and having regard to the nature and quantum of the pecuniary award, the applicants, the applicants have retained their victim status within the meaning of Article 34 (see paragraph 35 above) and that there has been a violation of the procedural limb of Article 2 read in conjunction with Article 14 of the Convention.", "(ii) Substantive positive obligations", "47. Like the leading case of Tkhelidze, the circumstances of the present application confirm that there was clearly a lasting situation of domestic violence, which means that there could be no doubt about the immediacy of the danger to the victim, and that the police knew or certainly ought to have known of the nature of that situation. Although they were put on alert about the seriousness of the risks, the police failed to display the requisite special diligence and committed major failings in their work such as inaccurate, incomplete or even misleading evidence gathering and not attempting to conduct a proper analysis of what the potential trigger factors for the violence could be (see paragraphs 10 and 12 above and compare with Tkhelidze, cited above, § 53). In this connection, the Court reiterates that shortcomings in the gathering of evidence in response to a reported incident of domestic violence can result in an underestimation of the level of violence actually committed, can have deleterious effects on the prospects of opening a criminal investigation and even discourage victims of domestic abuse, who are often already under pressure from society, from reporting an abusive family member to the authorities in the future (ibid., § 54).", "48. The Court also observes that whilst the domestic legislative framework provided for various temporary restrictive measures in respect of alleged abusers (compare Tkhelidze, cited above, 55), the relevant domestic authorities did not resort to them at all. It does not appear from the various reports and records drawn up by the police officers that the victim was ever advised by the police of her procedural rights and of the various legislative and administrative measures of protection available to her. The Court further considers that the inactivity of the domestic law-enforcement authorities appears to be even more concerning when assessed against the fact that the abuser was himself a police officer. What is more, whilst the law-enforcement authorities were perfectly aware that he was using various attributes of his official position to commit abuse against C (intimidating her with his service pistol on many occasions, repeatedly claiming impunity for his acts on account of his belonging to the law-enforcement machinery, threatening to bring false charges against C’s father and brother if the victim reported the abuse to the police, and so on), not only did the police not put an end to that demonstration of ultimate impunity and arbitrariness (see Ushakov and Ushakova v. Ukraine, no. 10705/12, § 83, 18 June 2015), they, on the contrary, allowed the alleged abuser to participate in the questioning of his victim and soon after promoted the abuser to a higher police rank (see paragraphs 14 and 15 above). The Court finds this aspect of the case to be particularly troubling because it expects Member States to be all the more stringent when investigating and, where appropriate, punishing their own law-enforcement officers for the commission of serious crimes, including domestic violence and violence against women in general, than they are with ordinary offenders, because what is at stake is not only the issue of the individual criminal-law liability of the perpetrators but also the State’s duty to combat any sense of impunity felt by the offenders by virtue of their very office, and maintain public confidence in and respect for the law-enforcement system (see, mutatis mutandis, Vazagashvili and Shanava v. Georgia, no. 50375/07, § 92, 18 July 2019, and Makuchyan and Minasyan v. Azerbaijan and Hungary, no. 17247/13, § 157, 26 May 2020).", "49. The Court thus concludes that the present case can be seen as yet another vivid example of how general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence can create a climate conducive to a further proliferation of violence committed against victims merely because they are women. In disregard of the panoply of various protective measures that were directly available, the authorities did not prevent gender-based violence against the applicants’ next-of-kin, which culminated in her death, and they compounded this failure with an attitude of passivity, even accommodation, as regards the alleged perpetrator, later convicted of the victim’s murder. The respondent State has thus breached its substantive positive obligations under Article 2 of the Convention read in in conjunction with Article 14.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "50. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "51. The applicants claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage. They further requested that the Court indicate to the respondent State that there was a need to implement the following two general measures – (i) to put in place a mechanism for “the institutional responsibility of the State organs for preventing and adequately responding to femicide” and (ii) to take legislative measures in order “to explicitly criminalise femicide and ensure that all killings of women are investigated from a gender perspective”.", "52. The Government submitted that the amounts claimed were not justified in the circumstances of the case.", "53. The Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It finds it appropriate to award them EUR 35,000 under this head (compare Tkhelidze, cited above, § 65).", "54. As regards the applicants’ request for additional measures to be indicated to the respondent State, the Court considers that, in the case at hand, it would be for the respondent State to choose, subject to supervision by the Committee of Ministers, the exact means to be used in its domestic legal order to discharge its obligations under the Convention, including those in relation to the problem of the discriminatory passivity of the law-enforcement authorities in the face of allegations of violence against women (see Abu Zubaydah v. Lithuania, no. 46454/11, §§ 682 and 683, 31 May 2018, and Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 57, 8 October 2020).", "Costs and expenses", "55. On 10 May 2019, within the time-limit allocated by the Court for the submission of just satisfaction claims under Rule 60 of the Rules of Court, the applicants claimed EUR 22,817.60 for the costs and expenses incurred before the Court by two of their British lawyers. No claim was made with respect to the applicant’s representation by the remaining seven (five Georgian and two British) lawyers (see paragraph 2 above). No copies of legal service contracts, invoices, vouchers or any other supporting financial documents were submitted. The amount claimed was based on the number of hours spent by the British lawyers in question on the case (ninety-eight hours and thirty minutes) and the lawyers’ hourly rate (GBP 150) and included, in addition, a claim for postal, translation and other administrative expenses incurred by them.", "56. On 24 June 2019 the Government replied that the claims were unsubstantiated and excessive. They stated, in particular, that no copy of the legal service contract between the applicants and two British lawyers had been submitted.", "57. On 21 August 2019 the applicants, without being invited by the Court to do so and without being given any additional time for this submission, supplemented their previous claims with a legal service contract dated 5 August 2019 signed by them and their British lawyers.", "58. The Court observes, at the outset, that the applicants’ submissions of 21 August 2019 were submitted in breach of the relevant procedural requirement contained in Rule 60 of the Rules of Court. That is to say, the submissions reached the Court outside the relevant time-limit, and no extension of time was requested before the expiry of that period. Furthermore, the submissions consisted of a legal service contract signed and dated after the applicants had formally filed their just satisfaction claims with the Court (compare paragraphs 56 and 58), and no explanation for this discrepancy was given. In these circumstances, the submissions of 21 August 2019 cannot be taken into consideration by the Court (compare, amongst other authorities, Kováčik v. Slovakia, no. 50903/06, §§ 91-93, 29 November 2011, and Stavebná spoločnosť TATRY Poprad, s.r.o. v. Slovakia, no. 7261/06, §§ 55 ‑ 56, 3 May 2011).", "59. As regards the applicants’ claims submitted under Rule 60 of the Rules of Court on 10 May 2019, the Court observes that they did not contain documents showing that they had paid or were under a legal obligation to pay the fees charged by their two British representatives. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicants have actually been incurred (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017, and, as a recent authority, Tkhelidze, cited above, § 68).", "60. It follows that the claims must be rejected.", "Default interest", "61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant was born on 2 February 1984 and lives in İzmir.", "A. The applicant ’ s arrest and detention", "12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the anti- terrorism branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers ’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001.", "13. At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body.", "14. Subsequently, at about 1 a.m., the applicant was interrogated at the anti- terrorism branch in the absence of a lawyer. According to a form explaining arrested persons ’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the youth branch of HADEP ( Halkın Demokrasi Partisi – the People ’ s Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK. He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo ” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant ’ s handwriting and sent it to the police laboratory for examination.", "15. On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant ’ s handwriting to that on the banner. It concluded that although certain characteristics of the applicant ’ s handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his.", "16. At 11.45 p.m. on 1 June 2001 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body.", "17. On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer.", "B. The trial", "18. On 11 July 2001 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).", "19. On 16 July 2001 the State Security Court held a preparatory hearing. It decided that the applicant ’ s detention on remand should be continued and that the accused be invited to prepare their defence submissions.", "20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. The applicant also rejected the police statement, alleging that it had been extracted from him under duress. He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 April 2001.", "21. At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant ’ s lawyer requested time to submit the applicant ’ s defence submissions.", "22. On 5 December 2001 the applicant made his defence submissions. He denied the charges against him and requested his release. On the same day, the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months ’ imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence.", "23. In convicting the applicant, the State Security Court had regard to the applicant ’ s statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants ’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant ’ s handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded:", "“ ... in view of these material facts, the court does not accept the applicant ’ s denial and finds that his confession to the police is substantiated.”", "C. The appeal", "24. On 2 January 2002 the applicant ’ s lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly.", "25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted that the Division should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative.", "26. On 10 June 2002 the Ninth Division of the Court of Cassation, upholding the İzmir State Security Court ’ s reasoning and assessment of the evidence, dismissed the applicant ’ s appeal." ]

[ "II. RELEVANT LAW AND PRACTICE", "A. Domestic law", "1. The legislation in force at the time of the application", "27. The relevant provisions of the former Code of Criminal Procedure ( Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. Article 138 clearly stipulated that for juveniles, legal assistance was obligatory.", "28. According to section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts.", "2. Recent amendments", "29. On 15 July 2003, by Law no. 4928, the restriction on an accused ’ s right of access to a lawyer in proceedings before the State Security Courts was lifted.", "30. On 1 July 2005 a new Code of Criminal Procedure entered into force. According to the relevant provisions of the new Code (Articles 149 and 150), all detained persons have the right of access to a lawyer from the moment they are taken into police custody. The appointment of a lawyer is obligatory if the person concerned is a minor or if he or she is accused of an offence punishable by a maximum of at least five years ’ imprisonment.", "31. Finally, section 10 of the Prevention of Terrorism Act (Law no. 3713), as amended on 29 June 2006, provides that for terrorist - related offences, the right of access to a lawyer may be delayed for twenty-four hours on the order of a public prosecutor. However, the accused cannot be interrogated during this period.", "B. Relevant international law materials", "1. Procedure in juvenile cases", "( a ) Council of Europe", "32. The Recommendation of the Committee of Ministers to member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853 rd meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor ...”", "33. The Recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency ( Recommendation No. R (87) 20), adopted on 17 September 1987 at the 410 th meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“Recommends the governments of member States to review, if necessary, their legislation and practice with a view:", "8. to reinforcing the legal position of minors throughout the proceedings, including the police interrogation, by recognising, inter alia :", "– the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the State.”", "( b ) United Nations", "( i ) Convention on the Rights of the Child", "34. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows:", "“States Parties shall ensure that: ...", "(d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”", "(ii) General Comment No. 10 of the Committee on the Rights of the Child, dated 25 April 2007 (CRC/C/GC/10)", "35. The relevant part of this text concerning legal assistance to minors in police custody provides as follows:", "“49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States Parties to determine how this assistance is provided but it should be free of charge ...", "...", "52. The Committee recommends that the States Parties set and implement time ‑ limits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time - limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.”", "(iii) Concluding Observations of the Committee on the Rights of the Child: Turkey, dated 9 July 2001 (CRC/C/15/Add.152)", "36. The relevant part of this text provides as follows:", "“66. The Committee recommends that the State Party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention [on the Rights of the Child], in particular Articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State Party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”", "2. Right of access to a lawyer during police custody", "( a ) Council of Europe", "( i ) Rules adopted by the Committee of Ministers", "37. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides:", "“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”", "38. Furthermore, the Recommendation of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules (Rec(2006)2), adopted on 11 January 2006 at the 952 nd meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“ Legal advice", "23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.", "23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.", "...", "23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”", "(ii) European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "39. Following its visit to Turkey in July 2000, the CPT published its report dated 8 November 2001 (CPT/ Inf (2001)25 ). It stated:", "“61. Despite the many changes to legislation in recent years, certain weaknesses remain as regards formal safeguards against ill - treatment. Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of the State Security Courts are still not entitled to access to a lawyer during the first four days of their custody. Further, despite earlier affirmations to the contrary, the Turkish authorities made clear in their response to the report on the February/March 1999 visit that such persons are being denied during the first four days of their custody the possibility to inform a relative of their situation. Such incommunicado detention can only facilitate the infliction of ill - treatment.", "The CPT must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person ’ s access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged.", "The implementation of the above recommendation will require legislative measures. However, in the meantime, immediate steps should be taken to ensure that existing legal provisions are complied with. Indeed, the information gathered during the July 2000 ad hoc visit clearly indicates that even after the first four days of police custody, access to a lawyer for persons suspected of State Security Court offences is in practice the exception rather than the rule. The CPT recommends that the officials responsible for carrying out checks and inspections under the previously-mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of the State Security Courts are being informed of their right to have access to a lawyer after the first four days of their custody and are being placed in a position effectively to exercise that right.”", "40. The CPT visited Turkey again in September 2001 and in its report dated 24 April 2002 (CPT/ Inf (2002)8) stated:", "“12. The amendments made to Article 16 of the Law on the Organisation and Trial Procedures of State Security Courts have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts. For such persons, the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond forty-eight hours; in other words, they are now denied access to a lawyer only for two days as compared to four days under the previous law.", "Whilst welcoming this step forward, the CPT regrets that the opportunity was not taken to guarantee to persons detained for collective State Security Court offences a right of access to a lawyer as from the very outset of their custody (and hence align their rights in this respect with those of ordinary criminal suspects). The CPT trusts that the Turkish authorities will in the near future implement the Committee ’ s long-standing recommendation that all persons deprived of their liberty by law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer.", "...", "46. Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one ’ s custody notified to a relative (cf. paragraphs 12 to 14). They have further improved an already impressive legal and regulatory framework to combat torture and ill-treatment. Nevertheless, the CPT remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts are still denied access to a lawyer during the first two days of their custody; its position on this point has been made clear in paragraph 12.", "Further, the actual content of the right of access to a lawyer for persons suspected of State Security Court offences remains less well developed than in the case of ordinary criminal suspects. In particular, as far as the CPT can ascertain, it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by the Bar Association is not applicable to them. Similarly, the provision making obligatory the appointment of a lawyer for persons under 18 still does not apply to juveniles who are detained on suspicion of State Security Court offences. In this regard, the CPT reiterates the recommendation already made in the report on the October 1997 visit, that the relevant provisions of Articles 135, 136 and 138 of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of the State Security Courts. ”", "( b ) United Nations", "( i ) International Covenant on Civil and Political Rights", "41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.", "(ii) United Nations Committee against Torture", "42. In its Conclusions and Recommendations on Turkey, dated 27 May 2003 (CAT/C/CR/30/5), the Committee stated the following:", "“5. The Committee expresses concern about", "...", "( c) allegations that persons in police custody have been denied prompt and adequate access to legal and medical assistance and that family members have not been promptly notified of their detention;", "...", "7. The Committee recommends that the State Party", "(a) ensure that detainees, including those held for offences under the jurisdiction of State Security Courts, benefit fully in practice from the available safeguards against ill-treatment and torture, particularly by guaranteeing their right to medical and legal assistance and to contact with their families;", "... ”", "43. In its General Comment No. 2, dated 24 January 2008 (CAT/C/GC/2), the Committee stated:", "“13. Certain basic guarantees apply to all persons deprived of liberty. Some of these are specified in the Convention, and the Committee consistently calls upon the States Parties to use them. The Committee ’ s recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive. Such guarantees include, inter alia, ... the right promptly to receive independent legal assistance ... ”", "( c ) European Union", "44. Article 48 of the Charter of Fundamental Rights states that “[r] espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the meaning and scope of the right guaranteed under Article 48 are the same as the equivalent right laid down by the European Convention on Human Rights.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "A. Access to a lawyer during police custody", "45. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during his police custody. He relied on Article 6 § 3 (c) of the Convention, which provides:", "“3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”", "1. The Chamber judgment", "46. In its judgment of 26 April 2007, the Chamber held that there had been no violation of Article 6 § 3 (c) of the Convention. In that connection, it pointed out that the applicant had been represented during the trial and appeal proceedings by a lawyer and that the applicant ’ s statement to the police was not the sole basis for his conviction. According to the Chamber, the applicant had had the opportunity of challenging the prosecution ’ s allegations under conditions which did not place him at a substantial disadvantage vis-à-vis his opponent. The Chamber also noted that in convicting the applicant, the İzmir State Security Court had had regard to the circumstances in which the applicant was arrested, the expert report concerning the handwriting on the banner, and witness statements. In view of the above, it concluded that the fairness of the applicant ’ s trial had not been prejudiced by the lack of legal assistance during his police custody.", "2. The parties ’ submissions", "( a ) The applicant", "47. The applicant contested the grounds on which the Chamber had found that there had been no violation of Article 6 § 3 (c) of the Convention. He stated that the assistance of a lawyer in police custody was a fundamental right. He reminded the Court that all the evidence which had been used against him had been collected at the preliminary investigation stage, during which he had been denied the assistance of a lawyer. At this point, the applicant also argued that although the domestic court had convicted him, there had been no evidence to prove that he was guilty. He also stated that he had been ill-treated during his police custody and had signed his statement to the police under duress. That statement had been used by the İzmir State Security Court, although he had clearly retracted it before the public prosecutor, the investigating judge and at the trial. The applicant also stressed that he had been a minor at the material time and had no previous criminal record. In his submission, in view of the serious charges that had been brought against him, the lack of legal assistance had breached his right to a fair trial. He also argued that the Government had failed to submit any good reason to justify the lack of legal assistance.", "( b ) The Government", "48. The Government asked the Grand Chamber to endorse the Chamber ’ s finding that there had been no violation of Article 6 § 3 (c) of the Convention. They stated, firstly, that the legislation had been changed in 2005. Furthermore, in their submission, the restriction imposed on the applicant ’ s access to a lawyer had not infringed his right to a fair trial under Article 6 of the Convention. Referring to the case-law of the Court ( see, in particular, Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275; John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I; Averill v. the United Kingdom, no. 36408/97, ECHR 2000 ‑ VI; Magee v. the United Kingdom, no. 28135/95, ECHR 2000 ‑ VI; and Brennan v. the United Kingdom, no. 39846/98, ECHR 2001 ‑ X ), they maintained that in assessing whether or not the trial was fair, regard should be had to the entirety of the proceedings. Thus, as the applicant had been represented by a lawyer during the proceedings before the İzmir State Security Court and the Court of Cassation, his right to a fair hearing had not been violated. The Government further drew attention to several Turkish cases ( see Saraç v. Turkey ( dec. ), no. 35841/97, 2 September 2004; Yurtsever v. Turkey ( dec. ), no. 42086/02, 31 August 2006; Uçma v. Turkey ( dec. ), no. 15071/03, 3 October 2006; Yavuz and Others v. Turkey ( dec. ), no. 38827/02, 21 November 2006; and Yıldız v. Turkey ( dec. ), nos. 3543/03 and 3557/03, 5 December 2006), in which the Court had declared similar complaints inadmissible as being manifestly ill-founded on the ground that, since the police statements had not been the only evidence to support the convictions, the lack of legal assistance during police custody had not constituted a violation of Article 6 of the Convention.", "49. Turning to the facts of the instant case, the Government maintained that when the applicant was taken into police custody, he was reminded of his right to remain silent and that during the ensuing criminal proceedings his lawyer had had the opportunity to challenge the prosecution ’ s allegations. They further emphasised that the applicant ’ s statement to the police was not the sole basis for his conviction.", "3. The Court ’ s assessment", "( a ) The general principles applicable in this case", "50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 ( see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45 ).", "51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial ( see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 ‑ A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( see Imbrioscia, cited above, § 38 ).", "52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).", "53. These principles, outlined in paragraph 5 2 above, are also in line with the generally recognised international human rights standards (see paragraphs 37 ‑ 42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.", "54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial ( see Can v. Austria, no. 9300/81, Commission ’ s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 ‑ IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT ) ( see paragraphs 39 ‑ 40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.", "55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.", "( b ) Application of the above principles to the present case", "56. In the present case, the applicant ’ s right of access to a lawyer was restricted during his police custody, pursuant to section 31 of Law no. 3842, as he was accused of committing an offence falling within the jurisdiction of the State Security Courts. As a result, he did not have access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively. Thus, no other justification was given for denying the applicant access to a lawyer than the fact that this was provided for on a systematic basis by the relevant legal provisions. As such, this already falls short of the requirements of Article 6 in this respect, as set out at paragraph 5 2 above.", "57. The Court further observes that the applicant had access to a lawyer following his detention on remand. During the ensuing criminal proceedings, he was also able to call witnesses on his behalf and had the possibility of challenging the prosecution ’ s arguments. It is also noted that the applicant repeatedly denied the content of his statement to the police, both at the trial and on appeal. However, as is apparent from the case file, the investigation had in large part been completed before the applicant appeared before the investigating judge on 1 June 2001. Moreover, not only did the İzmir State Security Court not take a stance on the admissibility of the applicant ’ s statements made in police custody before going on to examine the merits of the case, it also used the statement to the police as the main evidence on which to convict him, despite his denial of its accuracy (see paragraph 23 above). In this connection, the Court observes that in convicting the applicant, the İzmir State Security Court in fact used the evidence before it to confirm the applicant ’ s statement to the police. This evidence included the expert ’ s report dated 1 June 2001 and the statements of the other accused to the police and the public prosecutor. In this respect, however, the Court finds it striking that the expert ’ s report mentioned in the judgment of the first-instance court was in favour of the applicant, as it stated that it could not be established whether the handwriting on the banner matched the applicant ’ s (see paragraph 15 above). It is also significant that all the co-defendants, who had testified against the applicant in their statements to the police and the public prosecutor, retracted their statements at the trial and denied having participated in the demonstration.", "58. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. However, it is not for the Court to speculate on the impact which the applicant ’ s access to a lawyer during police custody would have had on the ensuing proceedings.", "59. The Court further notes that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy ( dec. ), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II; Kolu, cited above, § 53; and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89). Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent (see paragraph 14 above).", "60. Finally, the Court notes that one of the specific elements of the instant case was the applicant ’ s age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody (see paragraphs 32 ‑ 36 above), the Court stresses the fundamental importance of providing access to a lawyer where the person in custody is a minor.", "61. Still, in the present case, as explained above, the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the State Security Courts.", "62. In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.", "(c) Conclusion", "63. In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.", "B. The non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation", "64. The applicant complained that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him. In this respect, he relied on Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "1. The Chamber judgment", "65. In its judgment of 26 April 2007, the Chamber found that, in the light of the established case-law on the matter, the non-communication to the applicant of the written opinion of the Principal Public Prosecutor at the Court of Cassation had infringed his right to adversarial proceedings. It therefore concluded that there had been a violation of Article 6 § 1 of the Convention.", "2. The parties ’ submissions", "66. The parties filed no further observations on this question.", "3. The Court ’ s assessment", "67. The Court considers, for the reasons given by the Chamber, that the applicant ’ s right to adversarial proceedings has been breached. There has therefore been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "68. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. The parties ’ submissions", "69. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.", "70. The Government contended that the amounts claimed were excessive and unacceptable.", "2. The Chamber judgment", "71. The Chamber did not award any pecuniary compensation to the applicant, holding that he had failed to substantiate his claims. It considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.", "3. The Court ’ s assessment", "72. The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Teteriny v. Russia, no. 11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006 ‑ XII; and Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007 ). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).", "73. As regards the remaining non-pecuniary damage, ruling on an equitable basis, it awards the applicant EUR 2,000.", "B. Costs and expenses", "1. The parties ’ submissions", "74. The applicant claimed EUR 3,500 for the costs and expenses incurred in the domestic proceedings and before the Chamber, without submitting any documents in support of his claims. It is to be noted that the applicant has not amended the initial claim he made before the Chamber, but has submitted a legal-aid request for the expenses incurred before the Grand Chamber.", "75. The Government contested the claim, arguing that it was unsubstantiated.", "2. The Chamber judgment", "76. The Chamber awarded the applicant EUR 1,000 for costs and expenses.", "3. The Court ’ s assessment", "77. The Court observes that the applicant had the benefit of legal aid for the costs and expenses incurred during the Grand Chamber proceedings. As a result, the costs and expenses only include those incurred in the proceedings before the domestic courts and the Chamber.", "78. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, among other authorities, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII).", "79. In the light of the above, the Court awards the applicant the sum already awarded by the Chamber, namely EUR 1,000.", "C. Default interest", "80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant was born on 2 February 1984 and lives in İzmir.", "A. The applicant ’ s arrest and detention", "12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the anti- terrorism branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers ’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001.", "13. At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body.", "14. Subsequently, at about 1 a.m., the applicant was interrogated at the anti- terrorism branch in the absence of a lawyer. According to a form explaining arrested persons ’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the youth branch of HADEP ( Halkın Demokrasi Partisi – the People ’ s Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK. He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo ” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant ’ s handwriting and sent it to the police laboratory for examination.", "15. On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant ’ s handwriting to that on the banner. It concluded that although certain characteristics of the applicant ’ s handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his.", "16. At 11.45 p.m. on 1 June 2001 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body.", "17. On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer.", "B. The trial", "18. On 11 July 2001 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).", "19. On 16 July 2001 the State Security Court held a preparatory hearing. It decided that the applicant ’ s detention on remand should be continued and that the accused be invited to prepare their defence submissions.", "20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. The applicant also rejected the police statement, alleging that it had been extracted from him under duress. He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 April 2001.", "21. At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant ’ s lawyer requested time to submit the applicant ’ s defence submissions.", "22. On 5 December 2001 the applicant made his defence submissions. He denied the charges against him and requested his release. On the same day, the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months ’ imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence.", "23. In convicting the applicant, the State Security Court had regard to the applicant ’ s statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants ’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant ’ s handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded:", "“ ... in view of these material facts, the court does not accept the applicant ’ s denial and finds that his confession to the police is substantiated.”", "C. The appeal", "24. On 2 January 2002 the applicant ’ s lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly.", "25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted that the Division should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative.", "26. On 10 June 2002 the Ninth Division of the Court of Cassation, upholding the İzmir State Security Court ’ s reasoning and assessment of the evidence, dismissed the applicant ’ s appeal." ]

[ "II. RELEVANT LAW AND PRACTICE", "A. Domestic law", "1. The legislation in force at the time of the application", "27. The relevant provisions of the former Code of Criminal Procedure ( Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. Article 138 clearly stipulated that for juveniles, legal assistance was obligatory.", "28. According to section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts.", "2. Recent amendments", "29. On 15 July 2003, by Law no. 4928, the restriction on an accused ’ s right of access to a lawyer in proceedings before the State Security Courts was lifted.", "30. On 1 July 2005 a new Code of Criminal Procedure entered into force. According to the relevant provisions of the new Code (Articles 149 and 150), all detained persons have the right of access to a lawyer from the moment they are taken into police custody. The appointment of a lawyer is obligatory if the person concerned is a minor or if he or she is accused of an offence punishable by a maximum of at least five years ’ imprisonment.", "31. Finally, section 10 of the Prevention of Terrorism Act (Law no. 3713), as amended on 29 June 2006, provides that for terrorist - related offences, the right of access to a lawyer may be delayed for twenty-four hours on the order of a public prosecutor. However, the accused cannot be interrogated during this period.", "B. Relevant international law materials", "1. Procedure in juvenile cases", "( a ) Council of Europe", "32. The Recommendation of the Committee of Ministers to member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853 rd meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor ...”", "33. The Recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency ( Recommendation No. R (87) 20), adopted on 17 September 1987 at the 410 th meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“Recommends the governments of member States to review, if necessary, their legislation and practice with a view:", "8. to reinforcing the legal position of minors throughout the proceedings, including the police interrogation, by recognising, inter alia :", "– the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the State.”", "( b ) United Nations", "( i ) Convention on the Rights of the Child", "34. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows:", "“States Parties shall ensure that: ...", "(d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”", "(ii) General Comment No. 10 of the Committee on the Rights of the Child, dated 25 April 2007 (CRC/C/GC/10)", "35. The relevant part of this text concerning legal assistance to minors in police custody provides as follows:", "“49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States Parties to determine how this assistance is provided but it should be free of charge ...", "...", "52. The Committee recommends that the States Parties set and implement time ‑ limits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time - limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.”", "(iii) Concluding Observations of the Committee on the Rights of the Child: Turkey, dated 9 July 2001 (CRC/C/15/Add.152)", "36. The relevant part of this text provides as follows:", "“66. The Committee recommends that the State Party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention [on the Rights of the Child], in particular Articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State Party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”", "2. Right of access to a lawyer during police custody", "( a ) Council of Europe", "( i ) Rules adopted by the Committee of Ministers", "37. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides:", "“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”", "38. Furthermore, the Recommendation of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules (Rec(2006)2), adopted on 11 January 2006 at the 952 nd meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“ Legal advice", "23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.", "23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.", "...", "23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”", "(ii) European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "39. Following its visit to Turkey in July 2000, the CPT published its report dated 8 November 2001 (CPT/ Inf (2001)25 ). It stated:", "“61. Despite the many changes to legislation in recent years, certain weaknesses remain as regards formal safeguards against ill - treatment. Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of the State Security Courts are still not entitled to access to a lawyer during the first four days of their custody. Further, despite earlier affirmations to the contrary, the Turkish authorities made clear in their response to the report on the February/March 1999 visit that such persons are being denied during the first four days of their custody the possibility to inform a relative of their situation. Such incommunicado detention can only facilitate the infliction of ill - treatment.", "The CPT must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person ’ s access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged.", "The implementation of the above recommendation will require legislative measures. However, in the meantime, immediate steps should be taken to ensure that existing legal provisions are complied with. Indeed, the information gathered during the July 2000 ad hoc visit clearly indicates that even after the first four days of police custody, access to a lawyer for persons suspected of State Security Court offences is in practice the exception rather than the rule. The CPT recommends that the officials responsible for carrying out checks and inspections under the previously-mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of the State Security Courts are being informed of their right to have access to a lawyer after the first four days of their custody and are being placed in a position effectively to exercise that right.”", "40. The CPT visited Turkey again in September 2001 and in its report dated 24 April 2002 (CPT/ Inf (2002)8) stated:", "“12. The amendments made to Article 16 of the Law on the Organisation and Trial Procedures of State Security Courts have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts. For such persons, the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond forty-eight hours; in other words, they are now denied access to a lawyer only for two days as compared to four days under the previous law.", "Whilst welcoming this step forward, the CPT regrets that the opportunity was not taken to guarantee to persons detained for collective State Security Court offences a right of access to a lawyer as from the very outset of their custody (and hence align their rights in this respect with those of ordinary criminal suspects). The CPT trusts that the Turkish authorities will in the near future implement the Committee ’ s long-standing recommendation that all persons deprived of their liberty by law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer.", "...", "46. Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one ’ s custody notified to a relative (cf. paragraphs 12 to 14). They have further improved an already impressive legal and regulatory framework to combat torture and ill-treatment. Nevertheless, the CPT remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts are still denied access to a lawyer during the first two days of their custody; its position on this point has been made clear in paragraph 12.", "Further, the actual content of the right of access to a lawyer for persons suspected of State Security Court offences remains less well developed than in the case of ordinary criminal suspects. In particular, as far as the CPT can ascertain, it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by the Bar Association is not applicable to them. Similarly, the provision making obligatory the appointment of a lawyer for persons under 18 still does not apply to juveniles who are detained on suspicion of State Security Court offences. In this regard, the CPT reiterates the recommendation already made in the report on the October 1997 visit, that the relevant provisions of Articles 135, 136 and 138 of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of the State Security Courts. ”", "( b ) United Nations", "( i ) International Covenant on Civil and Political Rights", "41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.", "(ii) United Nations Committee against Torture", "42. In its Conclusions and Recommendations on Turkey, dated 27 May 2003 (CAT/C/CR/30/5), the Committee stated the following:", "“5. The Committee expresses concern about", "...", "( c) allegations that persons in police custody have been denied prompt and adequate access to legal and medical assistance and that family members have not been promptly notified of their detention;", "...", "7. The Committee recommends that the State Party", "(a) ensure that detainees, including those held for offences under the jurisdiction of State Security Courts, benefit fully in practice from the available safeguards against ill-treatment and torture, particularly by guaranteeing their right to medical and legal assistance and to contact with their families;", "... ”", "43. In its General Comment No. 2, dated 24 January 2008 (CAT/C/GC/2), the Committee stated:", "“13. Certain basic guarantees apply to all persons deprived of liberty. Some of these are specified in the Convention, and the Committee consistently calls upon the States Parties to use them. The Committee ’ s recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive. Such guarantees include, inter alia, ... the right promptly to receive independent legal assistance ... ”", "( c ) European Union", "44. Article 48 of the Charter of Fundamental Rights states that “[r] espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the meaning and scope of the right guaranteed under Article 48 are the same as the equivalent right laid down by the European Convention on Human Rights.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "A. Access to a lawyer during police custody", "45. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during his police custody. He relied on Article 6 § 3 (c) of the Convention, which provides:", "“3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”", "1. The Chamber judgment", "46. In its judgment of 26 April 2007, the Chamber held that there had been no violation of Article 6 § 3 (c) of the Convention. In that connection, it pointed out that the applicant had been represented during the trial and appeal proceedings by a lawyer and that the applicant ’ s statement to the police was not the sole basis for his conviction. According to the Chamber, the applicant had had the opportunity of challenging the prosecution ’ s allegations under conditions which did not place him at a substantial disadvantage vis-à-vis his opponent. The Chamber also noted that in convicting the applicant, the İzmir State Security Court had had regard to the circumstances in which the applicant was arrested, the expert report concerning the handwriting on the banner, and witness statements. In view of the above, it concluded that the fairness of the applicant ’ s trial had not been prejudiced by the lack of legal assistance during his police custody.", "2. The parties ’ submissions", "( a ) The applicant", "47. The applicant contested the grounds on which the Chamber had found that there had been no violation of Article 6 § 3 (c) of the Convention. He stated that the assistance of a lawyer in police custody was a fundamental right. He reminded the Court that all the evidence which had been used against him had been collected at the preliminary investigation stage, during which he had been denied the assistance of a lawyer. At this point, the applicant also argued that although the domestic court had convicted him, there had been no evidence to prove that he was guilty. He also stated that he had been ill-treated during his police custody and had signed his statement to the police under duress. That statement had been used by the İzmir State Security Court, although he had clearly retracted it before the public prosecutor, the investigating judge and at the trial. The applicant also stressed that he had been a minor at the material time and had no previous criminal record. In his submission, in view of the serious charges that had been brought against him, the lack of legal assistance had breached his right to a fair trial. He also argued that the Government had failed to submit any good reason to justify the lack of legal assistance.", "( b ) The Government", "48. The Government asked the Grand Chamber to endorse the Chamber ’ s finding that there had been no violation of Article 6 § 3 (c) of the Convention. They stated, firstly, that the legislation had been changed in 2005. Furthermore, in their submission, the restriction imposed on the applicant ’ s access to a lawyer had not infringed his right to a fair trial under Article 6 of the Convention. Referring to the case-law of the Court ( see, in particular, Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275; John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I; Averill v. the United Kingdom, no. 36408/97, ECHR 2000 ‑ VI; Magee v. the United Kingdom, no. 28135/95, ECHR 2000 ‑ VI; and Brennan v. the United Kingdom, no. 39846/98, ECHR 2001 ‑ X ), they maintained that in assessing whether or not the trial was fair, regard should be had to the entirety of the proceedings. Thus, as the applicant had been represented by a lawyer during the proceedings before the İzmir State Security Court and the Court of Cassation, his right to a fair hearing had not been violated. The Government further drew attention to several Turkish cases ( see Saraç v. Turkey ( dec. ), no. 35841/97, 2 September 2004; Yurtsever v. Turkey ( dec. ), no. 42086/02, 31 August 2006; Uçma v. Turkey ( dec. ), no. 15071/03, 3 October 2006; Yavuz and Others v. Turkey ( dec. ), no. 38827/02, 21 November 2006; and Yıldız v. Turkey ( dec. ), nos. 3543/03 and 3557/03, 5 December 2006), in which the Court had declared similar complaints inadmissible as being manifestly ill-founded on the ground that, since the police statements had not been the only evidence to support the convictions, the lack of legal assistance during police custody had not constituted a violation of Article 6 of the Convention.", "49. Turning to the facts of the instant case, the Government maintained that when the applicant was taken into police custody, he was reminded of his right to remain silent and that during the ensuing criminal proceedings his lawyer had had the opportunity to challenge the prosecution ’ s allegations. They further emphasised that the applicant ’ s statement to the police was not the sole basis for his conviction.", "3. The Court ’ s assessment", "( a ) The general principles applicable in this case", "50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 ( see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45 ).", "51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial ( see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 ‑ A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( see Imbrioscia, cited above, § 38 ).", "52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).", "53. These principles, outlined in paragraph 5 2 above, are also in line with the generally recognised international human rights standards (see paragraphs 37 ‑ 42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.", "54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial ( see Can v. Austria, no. 9300/81, Commission ’ s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 ‑ IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT ) ( see paragraphs 39 ‑ 40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.", "55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.", "( b ) Application of the above principles to the present case", "56. In the present case, the applicant ’ s right of access to a lawyer was restricted during his police custody, pursuant to section 31 of Law no. 3842, as he was accused of committing an offence falling within the jurisdiction of the State Security Courts. As a result, he did not have access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively. Thus, no other justification was given for denying the applicant access to a lawyer than the fact that this was provided for on a systematic basis by the relevant legal provisions. As such, this already falls short of the requirements of Article 6 in this respect, as set out at paragraph 5 2 above.", "57. The Court further observes that the applicant had access to a lawyer following his detention on remand. During the ensuing criminal proceedings, he was also able to call witnesses on his behalf and had the possibility of challenging the prosecution ’ s arguments. It is also noted that the applicant repeatedly denied the content of his statement to the police, both at the trial and on appeal. However, as is apparent from the case file, the investigation had in large part been completed before the applicant appeared before the investigating judge on 1 June 2001. Moreover, not only did the İzmir State Security Court not take a stance on the admissibility of the applicant ’ s statements made in police custody before going on to examine the merits of the case, it also used the statement to the police as the main evidence on which to convict him, despite his denial of its accuracy (see paragraph 23 above). In this connection, the Court observes that in convicting the applicant, the İzmir State Security Court in fact used the evidence before it to confirm the applicant ’ s statement to the police. This evidence included the expert ’ s report dated 1 June 2001 and the statements of the other accused to the police and the public prosecutor. In this respect, however, the Court finds it striking that the expert ’ s report mentioned in the judgment of the first-instance court was in favour of the applicant, as it stated that it could not be established whether the handwriting on the banner matched the applicant ’ s (see paragraph 15 above). It is also significant that all the co-defendants, who had testified against the applicant in their statements to the police and the public prosecutor, retracted their statements at the trial and denied having participated in the demonstration.", "58. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. However, it is not for the Court to speculate on the impact which the applicant ’ s access to a lawyer during police custody would have had on the ensuing proceedings.", "59. The Court further notes that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy ( dec. ), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II; Kolu, cited above, § 53; and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89). Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent (see paragraph 14 above).", "60. Finally, the Court notes that one of the specific elements of the instant case was the applicant ’ s age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody (see paragraphs 32 ‑ 36 above), the Court stresses the fundamental importance of providing access to a lawyer where the person in custody is a minor.", "61. Still, in the present case, as explained above, the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the State Security Courts.", "62. In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.", "(c) Conclusion", "63. In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.", "B. The non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation", "64. The applicant complained that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him. In this respect, he relied on Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "1. The Chamber judgment", "65. In its judgment of 26 April 2007, the Chamber found that, in the light of the established case-law on the matter, the non-communication to the applicant of the written opinion of the Principal Public Prosecutor at the Court of Cassation had infringed his right to adversarial proceedings. It therefore concluded that there had been a violation of Article 6 § 1 of the Convention.", "2. The parties ’ submissions", "66. The parties filed no further observations on this question.", "3. The Court ’ s assessment", "67. The Court considers, for the reasons given by the Chamber, that the applicant ’ s right to adversarial proceedings has been breached. There has therefore been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "68. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. The parties ’ submissions", "69. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.", "70. The Government contended that the amounts claimed were excessive and unacceptable.", "2. The Chamber judgment", "71. The Chamber did not award any pecuniary compensation to the applicant, holding that he had failed to substantiate his claims. It considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.", "3. The Court ’ s assessment", "72. The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Teteriny v. Russia, no. 11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006 ‑ XII; and Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007 ). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).", "73. As regards the remaining non-pecuniary damage, ruling on an equitable basis, it awards the applicant EUR 2,000.", "B. Costs and expenses", "1. The parties ’ submissions", "74. The applicant claimed EUR 3,500 for the costs and expenses incurred in the domestic proceedings and before the Chamber, without submitting any documents in support of his claims. It is to be noted that the applicant has not amended the initial claim he made before the Chamber, but has submitted a legal-aid request for the expenses incurred before the Grand Chamber.", "75. The Government contested the claim, arguing that it was unsubstantiated.", "2. The Chamber judgment", "76. The Chamber awarded the applicant EUR 1,000 for costs and expenses.", "3. The Court ’ s assessment", "77. The Court observes that the applicant had the benefit of legal aid for the costs and expenses incurred during the Grand Chamber proceedings. As a result, the costs and expenses only include those incurred in the proceedings before the domestic courts and the Chamber.", "78. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, among other authorities, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII).", "79. In the light of the above, the Court awards the applicant the sum already awarded by the Chamber, namely EUR 1,000.", "C. Default interest", "80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant was born on 2 February 1984 and lives in İzmir.", "A. The applicant ’ s arrest and detention", "12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the anti- terrorism branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers ’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001.", "13. At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body.", "14. Subsequently, at about 1 a.m., the applicant was interrogated at the anti- terrorism branch in the absence of a lawyer. According to a form explaining arrested persons ’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the youth branch of HADEP ( Halkın Demokrasi Partisi – the People ’ s Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK. He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo ” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant ’ s handwriting and sent it to the police laboratory for examination.", "15. On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant ’ s handwriting to that on the banner. It concluded that although certain characteristics of the applicant ’ s handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his.", "16. At 11.45 p.m. on 1 June 2001 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body.", "17. On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer.", "B. The trial", "18. On 11 July 2001 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).", "19. On 16 July 2001 the State Security Court held a preparatory hearing. It decided that the applicant ’ s detention on remand should be continued and that the accused be invited to prepare their defence submissions.", "20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. The applicant also rejected the police statement, alleging that it had been extracted from him under duress. He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 April 2001.", "21. At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant ’ s lawyer requested time to submit the applicant ’ s defence submissions.", "22. On 5 December 2001 the applicant made his defence submissions. He denied the charges against him and requested his release. On the same day, the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months ’ imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence.", "23. In convicting the applicant, the State Security Court had regard to the applicant ’ s statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants ’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant ’ s handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded:", "“ ... in view of these material facts, the court does not accept the applicant ’ s denial and finds that his confession to the police is substantiated.”", "C. The appeal", "24. On 2 January 2002 the applicant ’ s lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly.", "25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted that the Division should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative.", "26. On 10 June 2002 the Ninth Division of the Court of Cassation, upholding the İzmir State Security Court ’ s reasoning and assessment of the evidence, dismissed the applicant ’ s appeal." ]

[ "II. RELEVANT LAW AND PRACTICE", "A. Domestic law", "1. The legislation in force at the time of the application", "27. The relevant provisions of the former Code of Criminal Procedure ( Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. Article 138 clearly stipulated that for juveniles, legal assistance was obligatory.", "28. According to section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts.", "2. Recent amendments", "29. On 15 July 2003, by Law no. 4928, the restriction on an accused ’ s right of access to a lawyer in proceedings before the State Security Courts was lifted.", "30. On 1 July 2005 a new Code of Criminal Procedure entered into force. According to the relevant provisions of the new Code (Articles 149 and 150), all detained persons have the right of access to a lawyer from the moment they are taken into police custody. The appointment of a lawyer is obligatory if the person concerned is a minor or if he or she is accused of an offence punishable by a maximum of at least five years ’ imprisonment.", "31. Finally, section 10 of the Prevention of Terrorism Act (Law no. 3713), as amended on 29 June 2006, provides that for terrorist - related offences, the right of access to a lawyer may be delayed for twenty-four hours on the order of a public prosecutor. However, the accused cannot be interrogated during this period.", "B. Relevant international law materials", "1. Procedure in juvenile cases", "( a ) Council of Europe", "32. The Recommendation of the Committee of Ministers to member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853 rd meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor ...”", "33. The Recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency ( Recommendation No. R (87) 20), adopted on 17 September 1987 at the 410 th meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“Recommends the governments of member States to review, if necessary, their legislation and practice with a view:", "8. to reinforcing the legal position of minors throughout the proceedings, including the police interrogation, by recognising, inter alia :", "– the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the State.”", "( b ) United Nations", "( i ) Convention on the Rights of the Child", "34. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows:", "“States Parties shall ensure that: ...", "(d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”", "(ii) General Comment No. 10 of the Committee on the Rights of the Child, dated 25 April 2007 (CRC/C/GC/10)", "35. The relevant part of this text concerning legal assistance to minors in police custody provides as follows:", "“49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States Parties to determine how this assistance is provided but it should be free of charge ...", "...", "52. The Committee recommends that the States Parties set and implement time ‑ limits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time - limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.”", "(iii) Concluding Observations of the Committee on the Rights of the Child: Turkey, dated 9 July 2001 (CRC/C/15/Add.152)", "36. The relevant part of this text provides as follows:", "“66. The Committee recommends that the State Party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention [on the Rights of the Child], in particular Articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State Party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”", "2. Right of access to a lawyer during police custody", "( a ) Council of Europe", "( i ) Rules adopted by the Committee of Ministers", "37. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides:", "“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”", "38. Furthermore, the Recommendation of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules (Rec(2006)2), adopted on 11 January 2006 at the 952 nd meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“ Legal advice", "23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.", "23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.", "...", "23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”", "(ii) European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "39. Following its visit to Turkey in July 2000, the CPT published its report dated 8 November 2001 (CPT/ Inf (2001)25 ). It stated:", "“61. Despite the many changes to legislation in recent years, certain weaknesses remain as regards formal safeguards against ill - treatment. Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of the State Security Courts are still not entitled to access to a lawyer during the first four days of their custody. Further, despite earlier affirmations to the contrary, the Turkish authorities made clear in their response to the report on the February/March 1999 visit that such persons are being denied during the first four days of their custody the possibility to inform a relative of their situation. Such incommunicado detention can only facilitate the infliction of ill - treatment.", "The CPT must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person ’ s access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged.", "The implementation of the above recommendation will require legislative measures. However, in the meantime, immediate steps should be taken to ensure that existing legal provisions are complied with. Indeed, the information gathered during the July 2000 ad hoc visit clearly indicates that even after the first four days of police custody, access to a lawyer for persons suspected of State Security Court offences is in practice the exception rather than the rule. The CPT recommends that the officials responsible for carrying out checks and inspections under the previously-mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of the State Security Courts are being informed of their right to have access to a lawyer after the first four days of their custody and are being placed in a position effectively to exercise that right.”", "40. The CPT visited Turkey again in September 2001 and in its report dated 24 April 2002 (CPT/ Inf (2002)8) stated:", "“12. The amendments made to Article 16 of the Law on the Organisation and Trial Procedures of State Security Courts have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts. For such persons, the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond forty-eight hours; in other words, they are now denied access to a lawyer only for two days as compared to four days under the previous law.", "Whilst welcoming this step forward, the CPT regrets that the opportunity was not taken to guarantee to persons detained for collective State Security Court offences a right of access to a lawyer as from the very outset of their custody (and hence align their rights in this respect with those of ordinary criminal suspects). The CPT trusts that the Turkish authorities will in the near future implement the Committee ’ s long-standing recommendation that all persons deprived of their liberty by law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer.", "...", "46. Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one ’ s custody notified to a relative (cf. paragraphs 12 to 14). They have further improved an already impressive legal and regulatory framework to combat torture and ill-treatment. Nevertheless, the CPT remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts are still denied access to a lawyer during the first two days of their custody; its position on this point has been made clear in paragraph 12.", "Further, the actual content of the right of access to a lawyer for persons suspected of State Security Court offences remains less well developed than in the case of ordinary criminal suspects. In particular, as far as the CPT can ascertain, it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by the Bar Association is not applicable to them. Similarly, the provision making obligatory the appointment of a lawyer for persons under 18 still does not apply to juveniles who are detained on suspicion of State Security Court offences. In this regard, the CPT reiterates the recommendation already made in the report on the October 1997 visit, that the relevant provisions of Articles 135, 136 and 138 of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of the State Security Courts. ”", "( b ) United Nations", "( i ) International Covenant on Civil and Political Rights", "41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.", "(ii) United Nations Committee against Torture", "42. In its Conclusions and Recommendations on Turkey, dated 27 May 2003 (CAT/C/CR/30/5), the Committee stated the following:", "“5. The Committee expresses concern about", "...", "( c) allegations that persons in police custody have been denied prompt and adequate access to legal and medical assistance and that family members have not been promptly notified of their detention;", "...", "7. The Committee recommends that the State Party", "(a) ensure that detainees, including those held for offences under the jurisdiction of State Security Courts, benefit fully in practice from the available safeguards against ill-treatment and torture, particularly by guaranteeing their right to medical and legal assistance and to contact with their families;", "... ”", "43. In its General Comment No. 2, dated 24 January 2008 (CAT/C/GC/2), the Committee stated:", "“13. Certain basic guarantees apply to all persons deprived of liberty. Some of these are specified in the Convention, and the Committee consistently calls upon the States Parties to use them. The Committee ’ s recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive. Such guarantees include, inter alia, ... the right promptly to receive independent legal assistance ... ”", "( c ) European Union", "44. Article 48 of the Charter of Fundamental Rights states that “[r] espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the meaning and scope of the right guaranteed under Article 48 are the same as the equivalent right laid down by the European Convention on Human Rights.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "A. Access to a lawyer during police custody", "45. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during his police custody. He relied on Article 6 § 3 (c) of the Convention, which provides:", "“3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”", "1. The Chamber judgment", "46. In its judgment of 26 April 2007, the Chamber held that there had been no violation of Article 6 § 3 (c) of the Convention. In that connection, it pointed out that the applicant had been represented during the trial and appeal proceedings by a lawyer and that the applicant ’ s statement to the police was not the sole basis for his conviction. According to the Chamber, the applicant had had the opportunity of challenging the prosecution ’ s allegations under conditions which did not place him at a substantial disadvantage vis-à-vis his opponent. The Chamber also noted that in convicting the applicant, the İzmir State Security Court had had regard to the circumstances in which the applicant was arrested, the expert report concerning the handwriting on the banner, and witness statements. In view of the above, it concluded that the fairness of the applicant ’ s trial had not been prejudiced by the lack of legal assistance during his police custody.", "2. The parties ’ submissions", "( a ) The applicant", "47. The applicant contested the grounds on which the Chamber had found that there had been no violation of Article 6 § 3 (c) of the Convention. He stated that the assistance of a lawyer in police custody was a fundamental right. He reminded the Court that all the evidence which had been used against him had been collected at the preliminary investigation stage, during which he had been denied the assistance of a lawyer. At this point, the applicant also argued that although the domestic court had convicted him, there had been no evidence to prove that he was guilty. He also stated that he had been ill-treated during his police custody and had signed his statement to the police under duress. That statement had been used by the İzmir State Security Court, although he had clearly retracted it before the public prosecutor, the investigating judge and at the trial. The applicant also stressed that he had been a minor at the material time and had no previous criminal record. In his submission, in view of the serious charges that had been brought against him, the lack of legal assistance had breached his right to a fair trial. He also argued that the Government had failed to submit any good reason to justify the lack of legal assistance.", "( b ) The Government", "48. The Government asked the Grand Chamber to endorse the Chamber ’ s finding that there had been no violation of Article 6 § 3 (c) of the Convention. They stated, firstly, that the legislation had been changed in 2005. Furthermore, in their submission, the restriction imposed on the applicant ’ s access to a lawyer had not infringed his right to a fair trial under Article 6 of the Convention. Referring to the case-law of the Court ( see, in particular, Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275; John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I; Averill v. the United Kingdom, no. 36408/97, ECHR 2000 ‑ VI; Magee v. the United Kingdom, no. 28135/95, ECHR 2000 ‑ VI; and Brennan v. the United Kingdom, no. 39846/98, ECHR 2001 ‑ X ), they maintained that in assessing whether or not the trial was fair, regard should be had to the entirety of the proceedings. Thus, as the applicant had been represented by a lawyer during the proceedings before the İzmir State Security Court and the Court of Cassation, his right to a fair hearing had not been violated. The Government further drew attention to several Turkish cases ( see Saraç v. Turkey ( dec. ), no. 35841/97, 2 September 2004; Yurtsever v. Turkey ( dec. ), no. 42086/02, 31 August 2006; Uçma v. Turkey ( dec. ), no. 15071/03, 3 October 2006; Yavuz and Others v. Turkey ( dec. ), no. 38827/02, 21 November 2006; and Yıldız v. Turkey ( dec. ), nos. 3543/03 and 3557/03, 5 December 2006), in which the Court had declared similar complaints inadmissible as being manifestly ill-founded on the ground that, since the police statements had not been the only evidence to support the convictions, the lack of legal assistance during police custody had not constituted a violation of Article 6 of the Convention.", "49. Turning to the facts of the instant case, the Government maintained that when the applicant was taken into police custody, he was reminded of his right to remain silent and that during the ensuing criminal proceedings his lawyer had had the opportunity to challenge the prosecution ’ s allegations. They further emphasised that the applicant ’ s statement to the police was not the sole basis for his conviction.", "3. The Court ’ s assessment", "( a ) The general principles applicable in this case", "50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 ( see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45 ).", "51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial ( see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 ‑ A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( see Imbrioscia, cited above, § 38 ).", "52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).", "53. These principles, outlined in paragraph 5 2 above, are also in line with the generally recognised international human rights standards (see paragraphs 37 ‑ 42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.", "54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial ( see Can v. Austria, no. 9300/81, Commission ’ s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 ‑ IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT ) ( see paragraphs 39 ‑ 40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.", "55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.", "( b ) Application of the above principles to the present case", "56. In the present case, the applicant ’ s right of access to a lawyer was restricted during his police custody, pursuant to section 31 of Law no. 3842, as he was accused of committing an offence falling within the jurisdiction of the State Security Courts. As a result, he did not have access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively. Thus, no other justification was given for denying the applicant access to a lawyer than the fact that this was provided for on a systematic basis by the relevant legal provisions. As such, this already falls short of the requirements of Article 6 in this respect, as set out at paragraph 5 2 above.", "57. The Court further observes that the applicant had access to a lawyer following his detention on remand. During the ensuing criminal proceedings, he was also able to call witnesses on his behalf and had the possibility of challenging the prosecution ’ s arguments. It is also noted that the applicant repeatedly denied the content of his statement to the police, both at the trial and on appeal. However, as is apparent from the case file, the investigation had in large part been completed before the applicant appeared before the investigating judge on 1 June 2001. Moreover, not only did the İzmir State Security Court not take a stance on the admissibility of the applicant ’ s statements made in police custody before going on to examine the merits of the case, it also used the statement to the police as the main evidence on which to convict him, despite his denial of its accuracy (see paragraph 23 above). In this connection, the Court observes that in convicting the applicant, the İzmir State Security Court in fact used the evidence before it to confirm the applicant ’ s statement to the police. This evidence included the expert ’ s report dated 1 June 2001 and the statements of the other accused to the police and the public prosecutor. In this respect, however, the Court finds it striking that the expert ’ s report mentioned in the judgment of the first-instance court was in favour of the applicant, as it stated that it could not be established whether the handwriting on the banner matched the applicant ’ s (see paragraph 15 above). It is also significant that all the co-defendants, who had testified against the applicant in their statements to the police and the public prosecutor, retracted their statements at the trial and denied having participated in the demonstration.", "58. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. However, it is not for the Court to speculate on the impact which the applicant ’ s access to a lawyer during police custody would have had on the ensuing proceedings.", "59. The Court further notes that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy ( dec. ), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II; Kolu, cited above, § 53; and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89). Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent (see paragraph 14 above).", "60. Finally, the Court notes that one of the specific elements of the instant case was the applicant ’ s age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody (see paragraphs 32 ‑ 36 above), the Court stresses the fundamental importance of providing access to a lawyer where the person in custody is a minor.", "61. Still, in the present case, as explained above, the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the State Security Courts.", "62. In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.", "(c) Conclusion", "63. In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.", "B. The non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation", "64. The applicant complained that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him. In this respect, he relied on Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "1. The Chamber judgment", "65. In its judgment of 26 April 2007, the Chamber found that, in the light of the established case-law on the matter, the non-communication to the applicant of the written opinion of the Principal Public Prosecutor at the Court of Cassation had infringed his right to adversarial proceedings. It therefore concluded that there had been a violation of Article 6 § 1 of the Convention.", "2. The parties ’ submissions", "66. The parties filed no further observations on this question.", "3. The Court ’ s assessment", "67. The Court considers, for the reasons given by the Chamber, that the applicant ’ s right to adversarial proceedings has been breached. There has therefore been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "68. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. The parties ’ submissions", "69. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.", "70. The Government contended that the amounts claimed were excessive and unacceptable.", "2. The Chamber judgment", "71. The Chamber did not award any pecuniary compensation to the applicant, holding that he had failed to substantiate his claims. It considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.", "3. The Court ’ s assessment", "72. The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Teteriny v. Russia, no. 11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006 ‑ XII; and Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007 ). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).", "73. As regards the remaining non-pecuniary damage, ruling on an equitable basis, it awards the applicant EUR 2,000.", "B. Costs and expenses", "1. The parties ’ submissions", "74. The applicant claimed EUR 3,500 for the costs and expenses incurred in the domestic proceedings and before the Chamber, without submitting any documents in support of his claims. It is to be noted that the applicant has not amended the initial claim he made before the Chamber, but has submitted a legal-aid request for the expenses incurred before the Grand Chamber.", "75. The Government contested the claim, arguing that it was unsubstantiated.", "2. The Chamber judgment", "76. The Chamber awarded the applicant EUR 1,000 for costs and expenses.", "3. The Court ’ s assessment", "77. The Court observes that the applicant had the benefit of legal aid for the costs and expenses incurred during the Grand Chamber proceedings. As a result, the costs and expenses only include those incurred in the proceedings before the domestic courts and the Chamber.", "78. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, among other authorities, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII).", "79. In the light of the above, the Court awards the applicant the sum already awarded by the Chamber, namely EUR 1,000.", "C. Default interest", "80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1959 and lived, until his arrest, in the town of Revda in the Sverdlovsk Region. Prior to the events described below the applicant had never been accused of or charged with any crime.", "A. Arrest and pre-trial investigation", "7. On 15 December 1998 the applicant was arrested on suspicion of aggravated robbery. According to the Government, a police investigator apprised the applicant of the rights of an accused, including the right to be assisted by counsel. The Government insisted that the record of the applicant ’ s arrest contained a line which read as follows: “[the applicant] needs services by a retained lawyer Mr L.” The Government did not produce a copy of the arrest record, despite the Court ’ s request to that effect. The applicant confirmed that he had made a handwritten note in the arrest record, asking to be assisted by counsel, Mr L. He had also included Mr L. ’ s phone number and home address in the record. The applicant stressed that after the investigator had drawn up the arrest record, he had commenced interrogating the applicant about his participation in the robbery on 10 December 1998. As a consequence of the interrogation the applicant confessed to “ [ having gone ] to a motorway together [with six other individuals] to seize a cargo by fraud”. The applicant also noted that one of his accomplices had had a gun which he had planned to use as a threat.", "8. On 16 December 1998 an investigator again interrogated the applicant about the circumstances surrounding the robbery. According to the applicant, the investigator disregarded his request for legal assistance and proceeded to questioning. During that interrogation the applicant described in detail the preparations for the robbery, his meetings with other co-accused and the subsequent events on 10 December 1998. He also confessed to having participated with his co-accused in other criminal activities, including a murder, kidnapping, hijacking and unlawful possession of weapons. The Government did not produce a copy of the interrogation record drawn up on 16 December 1998.", "9. On the following day the Sverdlovsk Regional Prosecutor-Criminalist performed an investigative experiment aimed at verifying the applicant ’ s statements made during the questioning on 15 and 16 December 1998. In the course of the experiment the applicant was taken to various places where he and his accomplices had allegedly planned or committed criminal offences. In each location the applicant, in the presence of attesting witnesses, answered the prosecutor ’ s questions pertaining to various criminal activities committed by the criminal group in which the applicant had taken part. It appears from the record of the investigative experiment that the prosecutor commenced the experiment by asking the applicant whether he agreed to participate in the experiment in the absence of a lawyer. The applicant did not object. The prosecutor further informed the applicant of his constitutional right not to make self-incriminating statements and asked whether he was willing to show the crime scenes, describe his and his accomplices ’ actions and reproduce his actions at the crime scene. The applicant agreed and signed the record.", "10. On 18 December 1998 the Achitskiy District Prosecutor authorised the applicant ’ s detention on remand. The detention was subsequently extended on a number of occasions by a prosecutor or a court.", "11. On 2 4 December 1998 a senior investigator of the Sverdlovsk Regional Prosecutor ’ s office charged the applicant with aggravated robbery. The indictment record was served on the applicant in the presence of free legal aid counsel, Ms K. On the following day the senior investigator, in the presence of counsel, Ms K., informed the applicant of his procedural rights, including the right to free legal aid. The applicant made a handwritten note in the record, stating that he was in need of free legal aid.", "12. During subsequent interrogations on 15 January, 1, 10, 16 and 25 February, 29 March, 15 April and 30 August 1999 the applicant refused legal assistance, each time making handwritten notes in the interrogation records to that effect. He also noted that his refusal was not due to lack of financial resources but his fear of a possible “information leak”. The Government provided the Court with copies of the first few pages of the interrogation records, containing the applicant ’ s handwritten notes. The pages pertaining to the statements which the applicant had made during the questioning were not enclosed.", "13. On 27 October 1999 an investigator from the Sverdlovsk Regional Prosecutor ’ s office questioned the applicant about his involvement in forgery of documents in August 1998. On the applicant ’ s request Mr B., legal aid counsel, was called to assist him. The applicant confessed to having forged two national passports, but did not admit to having used them.", "14. On 9 November 1999 the applicant, assisted by legal aid counsel, Mr Sh., studied reports of various expert examinations. Two days later he was again questioned in the absence of a lawyer. The first two pages of the interrogation record, presented to the Court by the Government, contain the applicant ’ s signature confirming his knowledge of the accused ’ s procedural rights and his refusal of legal assistance.", "15. The Government, supporting their assertion with extracts of interrogation records bearing the applicant ’ s handwritten notes, submitted that during the remaining three interrogations on 17 November, 6 and 22 December 1999 the applicant had refused legal assistance. The Government noted that the refusal was not conditioned by the applicant ’ s lack of financial resources.", "16. On 30 December 1999 the applicant was served with the final version of the bill of indictment comprising all charges. In particular, the prosecution authorities accused the applicant of having participated in a stable armed criminal group and having committed criminal offences within that criminal group, including several counts of aggravated robbery, hijacking, theft, aggravated kidnapping, unlawful deprivation of liberty, forgery of documents, murder, attempted manslaughter, torture and unlawful possession of weapons. Following the service of the bill of indictment an investigator questioned the applicant. Mr B. was appointed to act as the applicant ’ s counsel. The interrogation record, provided to the Court by the Government, consisted of a three-page printed template, in which the dates, the investigator ’ s and applicant ’ s names, the applicant ’ s personal data and his statements made during the interrogation were filled in by hand. The relevant part read as follows (the pre-printed part in roman script and the part written by hand in italics):", "“Before the inquiry [ the applicant ] is informed that by virtue of the requirements of Article 149 of the RSFSR Code of Criminal Procedure and on the basis of Articles 46, 47, 48, 49, 77, 141-1, 151, 152, 154, 202, 202-2 of the RSFSR Code of Criminal Procedure he has a right: to defend himself, to know what he is charged with and to give explanations about the charges brought, to submit evidence, to lodge requests, to complain to a court about the unlawfulness and ill-foundedness of his arrest and detention, to study records of investigative actions in which he participated, [to study] materials which were submitted to a court as evidence of the lawfulness and well-foundedness of the authorisation and extensions of [his] detention on remand and, after the end of the pre-trial investigation, [to study] all materials of the criminal case file, to copy any and in any amount information out of [the case file], to be assisted by counsel from the moment when the arrest record or a detention order or a bill of indictment is served on [him], to have private meetings with counsel, to lodge complaints with a court against the arrest or extension of detention and to participate in a court hearing when [those complaints] are examined, to participate in trial hearings, to challenge [the bench, prosecutor, other participants of criminal proceedings], to appeal against investigators ’, interrogators ’, prosecutors ’ and courts ’ actions and decisions, to defend his rights and lawful interests by any other means and measures which do not run contrary to the law, and [he] also [has] the right [ to make pleadings at the end of the trial ] as a defendant.", "Moreover, [ the applicant ] was informed that by virtue of Article 51 of the Constitution of the Russian Federation, no one is obliged to make self-incriminating statements and [statements] incriminating his/her spouse and close relatives, whose list is determined by the federal law.", "[ the applicant ’ s signature ]", "According to Article 17 of the RSFSR Code of Criminal Procedure I was informed of my right to make statements in my native language and to be assisted by an interpreter. I speak Russian. I do not need the services of an interpreter and want to make statements in Russian.", "[ the applicant ’ s signature ]", "Before the interrogation [the applicant] stated: I need to be assisted by counsel appointed by a Bar Association.", "[ the applicant ’ s signature ]", "I can give the following explanation in relation to the questions put to me:", "The content of the charges against me was explained to me.", "I partially admit my guilt of having committed crimes under Article 327 § 3 and Article 327 § 2 of the Criminal Code of the Russian Federation. In fact, I forged two passports of USSR citizens. One of [the passports] was issued in the name of Mr M., and the other one [was issued] in the name of Mr Z. I glued pictures of myself in those passports and forged the cameo printing “ USSR Passport” with a wooden homemade engraving, which I had made myself. I bought Mr Z. ’ s passport in Revda town railway station from Mr Z. for 50 Russian roubles; [I] took Mr M. ’ s passport from my house where it was kept. In my house, that is at the [following address]: ... where I lived temporarily. [I] note that my mother lives permanently at that address. I have never used passports in the names of Mr Z. and Mr M.", "I do not confess to [having committed] other criminal offences with which I am charged.", "By virtue of Article 51 of the Russian Constitution I will no longer make any statements.", "My words recorded correctly and read by me.", "[ the applicant ’ s and his lawyer ’ s signatures ].”", "17. No further investigative actions were performed until 26 January 2000, when the applicant, in the presence of counsel, Mr B., was served with a copy of the decision on the closing of the pre-trial investigation. Between 7 February and 20 June 2000 the applicant and counsel B. studied the case file.", "B. Trial and appeal proceedings", "18. On 14 August 2000 the applicant and his co-defendants were committed to stand trial before the Sverdlovsk Regional Court. The Regional Court received the case file on the same day.", "19. According to the Government, it was not until 24 April 2001 that the Sverdlovsk Regional Court fixed the first trial hearing for 29 May 2001. Ms Ya. was appointed to act as the applicant ’ s lawyer at the trial.", "20. At the hearing on 29 May 2001 the Regional Court adjourned the proceedings until 4 June 2001 to allow the defendants to study the case file materials.", "21. Between 4 and 11 July 2001 the Regional Court held eight hearings. The following hearing, fixed for 11 July 2001, was postponed due to a co-defendant ’ s illness. The proceedings were stayed until 7 August 2001.", "22. Between 7 August and 18 December 200 1 sixty-five hearings were held. The Sverdlovsk Regional Court heard a number of witnesses. A victim of a car hijacking, Ms Lo ., asked to be dismissed from the proceedings and for her statements given at the pre-trial investigation to be taken into account. She noted that her pre-trial statements were true, but she did not want to testify in open court as she was afraid of the applicant and his co-defendants. The Regional Court found that Ms Lo. ’ s fears were justified and dismissed her from the proceedings.", "23. In October 2001 the applicant lodged a complaint with the Regional Court alleging ineffective legal representation and asking to appoint another counsel or, in the alternative, to be allowed to defend himself. The applicant asserted that Ms Ya. had no knowledge of the criminal case file and had not held any private meetings with him to discuss the strategy of his legal defence. On 22 October 2001 the Sverdlovsk Regional Court dismissed that request, finding that Ms Ya. was an experienced and well-qualified lawyer who defended the applicant effectively. The Regional Court also noted that by virtue of Article 50 § 2 of the RSFSR Code of Criminal Procedure the participation of a lawyer was mandatory in the trial hearings, having regard to the gravity of the charges against the applicant. At the same time, the applicant had a right to retain counsel of his own choosing, but he refused to do so. Therefore, there were no grounds to dismiss Ms Ya. from the proceedings.", "24. On 17 January 2002 the Sverdlovsk Regional Court, composed of one professional judge and two lay judges, found the applicant guilty of aggravated murder, torture, kidnapping, unlawful deprivation of liberty, theft, robbery, attempted robbery, car hijacking, participation in a criminal group and forgery of documents. The Regional Court sentenced him to twenty-two years ’ imprisonment. While holding the applicant guilty on a charge of having taken part in a criminal group and having committed a number of criminal offences within it, the Regional Court noted that the co-defendants, including the applicant, denied their guilt in open court. However, it cited their statements given during the pre-trial investigation in support of its findings of guilt. In particular, it gave a detailed account of the applicant ’ s statements made on 15 and 16 December 1998, in which the latter confessed his guilt to a number of criminal offences. At the same time the Regional Court excluded from evidence the records of the remaining applicant ’ s interrogations carried out in the absence of counsel, finding that the counsel ’ s presence during the interrogations had been mandatory and the applicant ’ s refusals of legal assistance could not be accepted. The Regional Court reached a similar conclusion in respect of the majority of the interrogations performed with other co-defendants, finding as follows:", "“refusals of legal assistance handwritten by [the accused] in the [interrogation ] records due to the fear of a leak of information should be considered involuntary as in reality lawyers were not appointed during the interrogations”.", "25. The applicant appealed against the conviction. In his appeal statement he complained, inter alia, that he had been denied legal assistance during the pre-trial investigation and that his legal defence during the trial had been ineffective.", "26. According to the Government, on 14 March 2002 a Sverdlovsk Regional Court judge held that the applicant and his co-defendants could study the case file materials from 22 to 27 March 2002. In addition, from 29 May to 11 October 2002 the applicant studied four volumes of the case file.", "27. In August 2002 the applicant asked for legal assistance for preparation of the appeal statement. He also asked for his sister to be appointed as his “public defender”. In reply, on 12 August 2002 a judge of the Sverdlovsk Regional Court informed the applicant that the Russian law did not provide him with the right to be assisted by a relative during appeal proceedings. The judge, however, noted that he could have asked a court to provide him with free legal assistance. According to the Government, such a request was never lodged by the applicant.", "28. On 2 December 2002 the case file was sent from the Sverdlovsk Regional Court to the Supreme Court of the Russian Federation for an examination.", "29. On 8 August 2003 the Supreme Court of the Russian Federation amended the judgment of 17 January 2002. The Supreme Court discontinued the proceedings against the applicant on the charges of torture, unlawful deprivation of liberty and one count of attempted robbery because his participation in those criminal offences had not been proved. The Supreme Court also reduced the applicant ’ s sentence by two years. While upholding the remainder of the applicant ’ s conviction, the Supreme Court endorsed reasons given by the Regional Court, once again relying on the statements made by the applicant on 15 and 16 December 1998. The applicant was not assisted by a lawyer at the appeal hearing." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Access to counsel", "1. RSFSR Code of Criminal Procedure of 1960, in force until 1 July 2002 (“old CCrP”)", "30. Article 47 of the old CCrP read as follows:", "“A lawyer should be called to take part in a case at the moment when charges are brought or, if a person suspected of a criminal offence is arrested or detained before charges are brought against him, at the moment when the arrest record or a detention decision is read out to him.", "If the lawyer chosen by a suspect or an accused is unable to appear within twenty-four hours after the arrest or detention has been effected, an interrogator, investigator, or a prosecutor may offer the suspect or accused the possibility to retain another lawyer or provide him with a lawyer through the assistance of the Bar Association. ”", "31. Article 48 of the Code established that a lawyer should be called by an accused, his legal representative or other persons on a request or with the consent of the accused. An investigator or court should to provide the suspect or the accused with counsel at his request. In cases where counsel chosen by the accused was not available for a long period of time, the investigator or the court could suggest that the accused choose another counsel or, as an alternative, appoint another counsel for the accused.", "32. If the accused was charged with criminal offences punishable by death penalty, participation of counsel was imperative in court proceedings and was also mandatory in the pre-trial investigation from the moment when charges were brought. In such a case, if the accused, his legal representative or other persons on his request did not invite counsel, an investigator, prosecutor or court should ensure the accused ’ s legal representation in the case (Article 49).", "33. An accused could refuse legal assistance at any moment of the criminal proceedings. If the accused was charged with criminal offences punishable by death penalty, such a refusal was not binding for a court, an investigator or a prosecutor (Article 50).", "2. Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“new CCrP”)", "34. Article 51 of the new CCrP, in so far as relevant, reads as follows:", "“1. Participation of legal counsel in the criminal proceedings is mandatory if:", "1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;", "2) the suspect or the accused is a minor;", "3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;", "3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;", "4) the suspect or the accused does not speak the language in which the proceedings are conducted;", "5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;", "6) the criminal case falls to be examined by a jury trial;", "7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;", "2. ...", "3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.”", "35. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case. The admission of a lawyer may not lead to the repetition of the procedural actions which have already been performed by that time.", "36. Article 373 of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal instance may directly examine evidence, including additional material submitted by parties.", "37. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court", "B. Reopening of criminal proceedings", "38. Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows:", "“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.", "...", "4. New circumstances are:", "...", "(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:", "(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;", "(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;", "(c) other new circumstances.”", "III. RELEVANT INTERNATIONAL DOCUMENTS", "Right of access to a lawyer during police custody", "1. Council of Europe", "Rules adopted by the Committee of Ministers", "39. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”", "40. Furthermore, the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec. (2006)2), adopted on 11 January 2006 at the 952 nd meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows:", "“ Legal advice", "23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.", "23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.", "...", "23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”", "(2) United Nations", "International Covenant on Civil and Political Rights", "41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.", "(3) European Union", "42. Article 48 of the Charter of Fundamental Rights states that “[r]espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the right guaranteed under Article 48 is among those who have the same meaning and the same scope as the equivalent right guaranteed by the European Convention on Human Rights.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE PROCEEDINGS", "43. The applicant complained that the length of the proceedings had been incompatible with the “reasonable - time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”", "A. Submissions by the parties", "44. The Government submitted that the “reasonable time” requirement was not violated in the present case as the case had been complex. In particular, the case file had comprised thirty-one volumes, the proceedings had involved twelve defendants and eleven victims and the domestic courts had heard more than eighty witnesses. The Government acknowledged that there had been an unjustified delay of approximately nine months, between 14 August 2000, when the Regional Court had received the case file, and 29 May 2001, when the first hearing had been held. However, they contended that that delay had not affected the overall duration of the proceedings. They further submitted that the remaining delays had been caused by objective reasons: the applicant ’ s and his co-defendants ’ requests for studying case file materials, their numerous statements of appeal which they had brought for several months, the co-defendant ’ s illness and other valid grounds.", "45. The applicant contested the Government ’ s submissions, save for the assertion that the criminal case had been complex. He claimed, however, that the complexity of the case taken on its own could not justify the overall length of the proceedings which amounted to almost four years and eight months. He also drew the Court ’ s attention to the fact that he had been detained during the entire duration of the criminal proceedings. That fact, in the applicant ’ s view, should have prompted the domestic authorities to expedite the proceedings against him. He further pointed to several delays in the examination of his case which were attributable to the domestic authorities. In particular, he stated that it had taken the Regional Court too long to fix the first trial hearing and to send the case file to the Supreme Court. The applicant also noted that the Supreme Court had only held one hearing, on 8 August 2003, although the case had been pending before it since December 2002.", "B. The Court ’ s assessment", "1. Admissibility", "46. The Court observes that the period to be taken into consideration began on 15 December 1998, when the applicant was arrested, and ended on 8 August 2003, when the Supreme Court issued the final judgment. It thus lasted approximately four years and eight months for two levels of jurisdiction.", "47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "48. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).", "49. The Court accepts that the proceedings at issue were complex. However, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings. The Court further reiterates that the fact that the applicant was held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Panchenko v. Russia, no. 45100/98, § 133, 8 February 2005, and Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002 ‑ VI).", "50. As to the applicant ’ s conduct, the Court is not convinced by the Government ’ s argument that the applicant should be held responsible for studying the case file and lodging the appeal statements. It has been the Court ’ s constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interest (see Kolomiyets v. Russia, no. 76835/01, § 29, 22 February 2007 ). The Court does not consider that the applicant abused or exercised his procedural rights in such a manner which unjustifiably contributed to prolonging the proceedings. The Government did not indicate any other period when the proceedings were stayed or any hearing which was adjourned due to the applicant ’ s or his representative ’ s conduct.", "51. As regards the conduct of the authorities, there were substantial periods of inactivity for which the Government have not submitted any satisfactory explanation and which are attributable to the domestic authorities. Firstly, the Court observes certain periods of inactivity on the part of the investigating authorities. For instance, a delay of almost two months was caused by the transfer of the file from the investigating authorities to the Regional Court (see paragraphs 17 and 18 above). Furthermore, the Court reiterates the Government ’ s acknowledgement that an aggregate delay of over nine months was attributed to the Regional Court ’ s failure to schedule the first trial hearing (see paragraph 19 above). Another delay of two months resulted from the transfer of the case from the Regional Court to the Supreme Court for the examination on appeal (see paragraphs 26 and 28 above). In this respect, the Court reiterates that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can meet the obligation to decide cases within a reasonable time (see, among other authorities, Löffler v. Austria (No. 2), no. 72159/01, § 57, 4 March 2004 ). Nor can the Court overlook the fact that the case was pending for more than eight months before the Supreme Court without any apparent progress. The Court finds it striking that during that period the Supreme Court only scheduled and held one hearing on 8 August 2003, that is on the same day as the judgment was issued.", "52. The Court further reiterates the Government ’ s argument that the conduct of the co-defendants and their lawyers was one of the reasons for the prolongation of the proceedings. In this respect the Court observes that it was incumbent on the court dealing with the case to discipline the parties in order to ensure that the proceedings were conducted at an acceptable pace (see Sidorenko v. Russia, no. 4459/03, § 34, 8 March 2007). It therefore considers that the delay occasioned by the Regional Court ’ s failure to discipline the co-defendants and their lawyers is attributable to the State (see Kuśmierek v. Poland, no. 10675/02, § 65, 21 September 2004 ).", "53. Having examined all the material before it and taking into account the overall length of the proceedings and what was at stake for the applicant, the Court considers that in the instant case the length of the criminal proceedings was excessive and failed to meet the “reasonable - time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF ABSENCE OR DEFICIENCY OF LEGAL REPRESENTATION", "54. The applicant complained that his defence rights had been violated at various stages of the criminal proceedings against him. In particular, the applicant claimed that (a) he had been denied access to a lawyer during the first few days of his police custody; (b) his legal aid counsel had failed to provide effective representation during the trial; and (c) he had not been provided with legal assistance before the court of appeal. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which read as follows:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...", "...", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”", "A. Submissions by the parties", "55. The Government, relying on the information provided by the Supreme Court of the Russian Federation, submitted that the applicant ’ s access to a lawyer had not been hindered at any stage of the criminal proceedings. The Government maintained that before each questioning the investigating authorities had reminded the applicant of his rights as an accused, including the rights to remain silent and be assisted by counsel. They particularly stressed that whenever the applicant had applied for legal aid during a certain investigative action, counsel had been appointed to ensure his defence. However, they drew the Court ’ s attention to the fact that the applicant had refused legal assistance during the majority of the interrogations performed after January 1999. The Government supported their assertion with extracts from the interrogation records bearing the applicant ’ s handwritten notes confirming his refusal of legal assistance. Referring to Article 49 of the RSFSR Code of Criminal Procedure, they further stressed that the counsel ’ s mandatory participation in the case had only been required after the final charges had been brought against the applicant, that is after 30 December 1999.", "56. In response to the applicant ’ s complaints about the questioning on 15 and 16 December 1998 in the absence of a lawyer the Government, in their observations lodged on 5 March 2007, confirmed that immediately after his arrest the applicant had asked for assistance by counsel, Mr L. They did not, however, comment on whether Mr L. had been contacted. In their further observations submitted on 19 September 2007 the Government noted that “[the applicant ’ s] request to contact [Mr L.] [had] been executed, however Mr L. [had] done nothing to ensure the applicant ’ s defence.”", "57. As regards the applicant ’ s representation at the trial, the Government noted that, as it followed from the case file materials, Ms Ya. had actively participated in the proceedings. She was a “skilful” lawyer and the applicant ’ s requests for her dismissal had been lodged under “ a far-fetched pretext”. Furthermore, by virtue of Article 49 § 1 (5) of the RSFSR CCrP, participation of defence counsel at the trial was absolutely indispensable for the interests of justice.", "58. In conclusion, the Government addressed the issue of the applicant ’ s representation before the appeal court. They submitted that the applicant had never lodged a request for free legal aid during the appeal proceedings. Furthermore, his relative had been notified of the appeal hearing and she could have retained counsel for the applicant, but had failed to do so. Moreover, the applicant had been afforded the opportunity to attend the hearing before the Supreme Court of the Russian Federation which had thoroughly studied the applicant ’ s appeal statements and had heard his oral arguments.", "59. The applicant, citing the Court ’ s judgment in the case of Quaranta v. Switzerland ( 24 May 1991, § § 32-34, Series A no. 205), submitted that the domestic authorities had been under an obligation to provide him with free legal aid from the very start of the criminal proceedings. He invoked his lack of financial resources, the complexity of the criminal case, the gravity of the charges against him and the fact that he had been facing the death penalty or life imprisonment as the conditions making the provision of legal aid indispensable. He also pointed out that the presence of those four conditions had never been disputed by the Government.", "60. The applicant further described the events of 15 and 16 December 1998 alleging that despite his request for counsel, Mr L., to be contacted the police investigators had proceeded to the questioning, extracting the confession from him. The Government did not dispute that he had asked for Mr L. ’ s assistance and they did not produce any evidence showing that his request had been complied with. The applicant stressed that he had initially been arrested on the robbery charge. However, his statements made on the first two days after his arrest, in the absence of legal assistance, had later served as the ground for instituting criminal proceedings against him on other grave charges, including murder, kidnapping, hijacking, etc. Those statements also served as the basis for his conviction because both the trial and appeal courts cited them as evidence of his having committed the offence, disregarding the fact that he had refuted all those confession statements in open court.", "61. In addition, the applicant observed that the Government ’ s claim that he had been provided with legal assistance after 30 December 1999 on a permanent basis is devoid of any sense, as no investigative steps had been taken after 30 December 1999 and by that time the investigating authorities had already obtained from him the confession which they had successfully used at the trial.", "62. Finally, the applicant maintained his complaints pertaining to the ineffective assistance of Ms Ya. at the trial and absence of legal aid during the appeal proceedings. He did not dispute Ms Ya. ’ s professional qualifications and her adequate legal experience; however, he insisted that she had had no time to study the case file as she had only been invited to the proceedings before the first trial hearing. He further invoked Article 51 of the new CCrP, asserting that the provision of legal aid during the appeal proceedings had been not a right, but an obligation of the domestic courts as he had faced more than fifteen years ’ imprisonment. In fact, he was sentenced to twenty-two years. He observed that the inability to obtain assistance by counsel on appeal had placed him in a very disadvantaged position, taking into account that he had faced complex issues of facts and law and had no legal training.", "B. The Court ’ s assessment", "1. Admissibility", "63. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "Merits", "64. The Court observes that the applicant ’ s complaint that his defence rights had been violated is threefold, raising issues of access to a lawyer during police custody, effectiveness of legal representation at the trial and lack of legal assistance during the appeal proceedings. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaints under both provisions taken together (see, among other authorities, Poitrimol v. France, 23 November 1993, § 29, Series A no. 277 ‑ A). The Court further reiterates that the compliance with the requirements of fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or one particular incident (see, among other authorities, Moiseyev v. Russia, no. 62936/00, § 201, 9 October 2008 ), although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings ( see, inter alia, Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22; Luedicke, Belkacem and Koç v. Germany, 28 November 1978, § 48, Series A no. 29; Campbell and Fell v. the United Kingdom, 28 June 1984, § § 95-99, Series A no. 80; Lamy v. Belgium, 30 March 1989, § 37, Series A no. 151; Delta v. France, 19 December 1990, § 36, Series A no. 191 ‑ A; Quaranta v. Switzerland, cited above, § § 28 and 36, Series A no. 205; and S. v. Switzerland, 28 November 1991, §§ 46-51 ). This principle holds true not only for the application of the concept of fair trial as such, as laid down in paragraph 1 of Article 6, but also for the application of the specific guarantees laid down in paragraph 3 (see Can v. Austria, no. 9300/81, Commission ’ s report of 12 July 1984, § 50, Series A no. 96 ). The Court thus considers that in order to determine whether the defence rights were respected in the criminal proceedings against the applicant, it firstly has to examine the issue of the applicant ’ s access to a lawyer at the stage of the pre-trial investigation, in particular, the first few days after his arrest. It will then proceed to the examination of the manner in which the legal aid lawyer, Ms Ya., exercised her duties during the applicant ’ s trial, and to the issue of the availability of legal aid for the applicant at the appeal stage.", "(a) Restrictions on access to a lawyer in the police custody", "(i) General principles", "65. The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that Article 6 has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275 ). As the Court has already held in its previous judgments, the right set out in paragraph 3 (c) of Article 6 of the Convention is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 (see Imbrioscia, cited above, § 37, and Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 ‑ X ).", "66. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Imbrioscia, cited above, § 38).", "67. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray v. the United Kingdom, 8 February 1996, § 63, Reports of Judgments and Decisions 1996 ‑ I; Brennan, cited above, § 45, and Magee v. the United Kingdom, no. 28135/95, § 44, ECHR 2000 ‑ VI ).", "68. These principles, outlined in paragraph 67 above, are also in line with the generally recognised international human rights standards (see paragraphs 39 - 42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.", "69. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Can, cited above, § 50). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-..., and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101).", "70. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 66 above) Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008 ).", "71. In this connection, the Court also reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (see John Murray, cited above, § 45, and Funke v. France, 25 February 1993, § 44, Series A no. 256-A). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996-VI; Heaney and McGuinness v. Ireland, no. 34720/97, § 40, ECHR 2000-XII; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention.", "( ii ) Application of the above principles in the present case", "72. The Court will first reiterate the circumstances surrounding the applicant ’ s confession statements made in the absence of a lawyer during the first two days after his arrest. Having examined the parties ’ submissions and all the material presented by them, the Court makes the following findings as to the sequence of events concerning the applicant ’ s confessions. On 15 December 1998 the applicant was arrested. A police investigator notified him that he had been arrested on a robbery charge and apprised him of his rights as an accused within the meaning of the RSFSR Code of Criminal Procedure, including the rights not to make self-incriminating statements and to be assisted by counsel. The applicant made an entry in the arrest record, stating his wish to be assisted by counsel, Mr L.", "73. The Court observes that the parties disputed the exact wording in which the applicant had asked for Mr L. ’ s services. The Government stated that the applicant had merely notified the investigating authorities of his intention to retain Mr L. as his counsel. The applicant stressed that he had asked the investigator to contact Mr L. and had provided him with necessary contact information, including Mr L. ’ s telephone number and home address. The Court, however, does not find it necessary to resolve the difference of opinion between the applicant and the Government. It suffices to note that the applicant made his intention to be assisted by counsel sufficiently clear to make it imperative for the investigating authorities to give him the benefit of legal assistance, unless there existed compelling reasons justifying the denial to the applicant of access to a lawyer (see Panovits v. Cyprus, no. 4268/04, § 66, 11 December 2008 ). It therefore remains to be ascertained whether the domestic authorities allowed the applicant to benefit from the assistance of a lawyer and, if not, whether the restriction on the applicant ’ s defence rights was justified and whether, if so, that restriction prejudiced the overall fairness of the proceedings (see Salduz, cited above, § 52).", "( α ) Whether the applicant ’ s access to counsel was restricted", "74. While establishing the subsequent chain of events, the Court reiterates the Government ’ s assertion that the investigating authorities had, in fact, tried to contact Mr L., but had been unsuccessful in their attempts (see paragraph 56 above). Without accepting the veracity of the Government ’ s argument which was formulated in a very ambiguous and equivocal manner and was not supported by any evidence (a statement from Mr L., copies of summonses, a record of a telephone call, for example ), the Court observes that, in the event that Mr L. was unavailable, the investigating authorities should have offered the applicant the possibility to retain another counsel or appointed a lawyer from the local Bar Association to assist the applicant. This finding is supported by the reading of Articles 47 and 48 of the old CCrP (in force at the material time, see paragraphs 30 and 31 above) and was not disputed by the Government.", "75. In this connection the Court notes that the Government did not argue that the suggestion to find another lawyer had been put to the applicant or that he had been offered assistance by legal aid counsel. In fact, there is no evidence showing that the applicant had even been informed about the investigator ’ s allegedly unsuccessful attempts to contact Mr L. As it follows from the parties ’ submissions, having finished drawing up the arrest record, the investigator proceeded to question the applicant despite the latter ’ s pending request for legal assistance. As a result, the applicant made a statement, confessing to a robbery. On the following day, 16 December 1998, the investigator continued interrogating the applicant, without furnishing him counsel. The interrogation led to yet another confession, this time to a number of criminal offences, including a murder, kidnapping, hijacking and unlawful possession of weapons. The applicant submitted that, prior to the interrogation, he had repeated his request for legal assistance. The Court observes that the Government did not comment on the applicant ’ s assertion. They merely noted that the applicant had refused legal assistance during a number of subsequent investigative actions, the earliest one being conducted on 17 December 1998. In addition, the Court notes that in order to be able to assess the merits of the applicant ’ s complaint concerning the absence of legal assistance, it asked the respondent Government to produce copies of records of all investigative actions performed before 30 December 1998. The Government, without giving any reasons, failed to produce copies of the interrogation records drawn up on 15 and 16 December 1998. In these circumstances, the Court considers that it can draw inferences from the Government ’ s conduct and finds it established that on 15 and 16 December 1998 the applicant did not have access to a lawyer when he made his statements to the investigating authorities.", "(β ) Whether the restriction of the defence rights was justified. Waiver of the right to counsel", "76. The Court observes that no justification was given for not providing the applicant with access to a lawyer. The Government also did not argue that a ban or restriction on the applicant ’ s right of access to a lawyer had been imposed in accordance with requirements of domestic law (see, by contrast, Salduz, cited above, § 56). However, in their submissions to the Court, the Government invoked a ground which, in their opinion, relieved the investigating authorities from their obligation to provide the applicant with legal assistance. In particular, they emphasised that, at least prior to his questioning on 15 December 1998, the applicant had been apprised of his constitutional right not to make self-incriminating statements. The Government implied that the applicant ’ s decision to confess his guilt to the investigator during the interrogations on 15 and 16 December 1998 constituted an implicit waiver of his right to counsel.", "77. In this respect the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-...; Kolu v. Turkey, no. 35811/97, § 53, 2 August 2005, and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89 ). A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 32432/96, 27 March 2007, § 59, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).", "78. The Court considers that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of Article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to interrogation. However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.", "79. Turning to the facts of the present case, the Court is not convinced that by giving replies to the investigator ’ s questions the applicant, in a knowing, explicit and unequivocal manner, waived his right to receive legal representation during the interrogations on 15 and 16 December 1998. The Court firstly reiterates its finding in the case of Salduz v. Turkey ( cited above, § 59) that no inferences could be drawn from the mere fact that the applicant had been reminded of his right to remain silent and signed the form stating his rights. A caution given by the investigating authorities informing an accused of the right to silence is a minimum recognition of the right, and as administered it barely meets the minimum aim of acquainting the accused with the rights which the law confirms on him (see, for similar finding, Panovits, cited above, § 74). In the Court ’ s view, when an accused has invoked his right to be assisted by counsel during interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated interrogation even if he has been advised of his rights. Moreover, the Court is of the opinion that an accused such as the applicant in the present case, who had expressed his desire to participate in investigative steps only through counsel, should not be subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police or prosecution.", "80. On the basis of the parties ’ submissions and the materials presented by them, the Court finds that the interrogations on 15 and 16 December 1998 were performed at the instigation of the authorities. The fact that the police proceeded to questioning the applicant in the absence of counsel occurred neither at the applicant ’ s suggestion nor at his request. There is no evidence that the confessions made by the applicant during those interrogations were initiated by him. Furthermore, the Court does not rule out that, in a situation when his request for assistance by counsel had been left without adequate response, the applicant who, as it follows from the case file, had had no previous encounters with the police, did not understand what was required to stop the interrogation. The Court is mindful that the applicant may not have had sufficient knowledge, experience, or even sufficient self-confidence to make the best choice without the advice and support of a lawyer. It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation. Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case concerning the investigation of a number of particularly grave criminal offences (see Talat Tunç, cited above, § 60). The Court therefore does not find that the applicant ’ s statements, made without having had access to counsel, amounted to a valid waiver of his right.", "(γ ) The effect of the restriction on the overall fairness of the criminal proceedings", "81. Having found that the restriction on the applicant ’ s right to counsel had no justification the Court, in principle, does not need to consider further what effect that restriction had on the overall fairness of the criminal proceedings against the applicant as the very concept of fairness enshrined in Article 6 requires that the accused have the benefit of the assistance of a lawyer already at the initial stages of police interrogation, unless the restriction on the right to counsel is exceptionally imposed for good cause (see Averill v. the United Kingdom, no. 36408/97, § § 59-60, ECHR 2000 ‑ VI and Berliński v. Poland, nos. 27715/95 and 30209/96, § 77, 20 June 2002 ). However, the Court finds it necessary to address the following argument raised by the Government, which is closely linked to the issue of the nature of the detriment the applicant suffered due to the breach of his defence rights. In particular the Government, relying on extracts from records of various investigative steps, submitted that during each investigative action, including each interrogation performed after 16 December 1998, the authorities had offered the applicant the possibility to benefit from assistance by legal aid counsel. However, the latter had refused legal services during the majority of those investigative steps. The Government attributed specific weight to the fact that on 17 December 1998 the applicant had explicitly waived his right to counsel and had willingly participated in the investigative experiment conducted by the prosecution authorities. During that experiment, in the presence of attesting witnesses, he had confirmed his previous statements made during the interrogations on 15 and 16 December 1998. It appears that, in the Government ’ s view, the fact that the applicant had voluntarily repeated his confessions nullified all possible deficiencies which had occurred during those two previous interrogations.", "82. In this connection the Court observes, and it was not disputed by the parties, that, following his first two interrogations on 15 and 16 December 1998, the applicant rejected legal assistance during the majority of the pre-trial interrogations. This assertion is confirmed by the extracts from the investigative records presented by the Government. Although there is no evidence that the applicant ’ s refusals had not been made voluntarily and knowingly, the Court finds it unexplainable that during purely formal procedural investigative steps the applicant was always assisted by legal aid counsel, while he usually refused legal assistance when he had to answer the investigators ’ questions (see paragraphs 11 and 14 above). The Court also does not lose sight of the Regional Court ’ s finding, pertaining to statements made by the applicant ’ s co-defendants while in police custody. In particular, the Regional Court held that the defendants ’ refusals of legal assistance could not be considered voluntary in a situation where, in fact, they had never been granted access to counsel (see paragraph 24 above).", "83. Furthermore, the Court is unable to establish what statements the applicant made during the subsequent interrogations, as the Government did not produce the full text of the interrogation records, save for the one of the investigative experiment conducted on 17 December 1998. The Court considers it peculiar that the Government limited themselves to submitting extracts from the investigative records bearing the applicant ’ s personal information and his handwritten refusals of legal assistance. However, the Court does not find it necessary to establish the exact content of the statements made by the applicant during the subsequent criminal proceedings as it will in any event reject, for the reasons laid down below, the Government ’ s argument pertaining to the alleged insignificance of the applicant ’ s confessions made, in the lawyer ’ s absence, on 15 and 16 December 1998.", "84. The Court firstly notes that criminal law – substantive as well as procedural – and criminal proceedings are a rather complex and technical matter which is often incomprehensible to laypersons, such as the applicant. Moreover, practically at every stage of criminal proceedings decisions have to be taken, the wrong decision being able to cause irreparable damage. Reliable knowledge of law and practice is usually required in order to assess the consequences of such decisions.", "85. The Court observes that during the first two days after his arrest, on 15 and 16 December 1998, the applicant, having had no access to counsel, made statements incriminating himself and a number of other individuals in a large range of criminal activities, including particularly grave and serious crimes. The Court has already concluded that, having been denied legal assistance, the applicant was unable to make the correct assessment of the consequences his decision to confess would have on the outcome of the criminal case (see paragraph 80 above). In the absence of assistance by counsel, who could have provided legal advice and technical skills, the applicant could not make full and knowledgeable use of his rights afforded by the criminal-procedural law.", "86. Moreover, his difficult situation was compounded by the fact that he was surrounded by the police and prosecution authorities, experts in the field of criminal proceedings, who are well-equipped with various, often psychologically coercive, interrogation techniques which facilitate, or even prompt, receipt of information from an accused. The Government did not dispute that the police had opted for intense interrogations of the applicant in the first few days after his arrest in an effort to generate the evidence aiding the prosecution ’ s case. The Court does not underestimate the fact that after the applicant, who had initially been arrested on a robbery charge, had been subjected to interrogations by the police, charges were brought in respect of a number of other criminal offences to which the applicant had confessed during those interrogations.", "87. In such a situation, the Court does not find it surprising that on 17 December 1998, the day following his confessions, the applicant, while still having had no consultation with a lawyer or any legal advice, repeated his statements given on 15 and 16 December 1998. The Court is mindful of the fact that, being put into an anxious and emotional state by the intense interrogations during the previous two days, the applicant could have been most easily persuaded to repeat his statements during the investigative experiment on 17 December 1998. The Court accepts that at that moment the applicant could have had the impression that an irreparable mistake of confession had already been made during the first two interrogations, that he had already compromised himself too seriously by giving answers to the investigators ’ questions and thus he merely surrendered to further questioning.", "88. In this connection, the Court does not lose sight of the fact that after the applicant had, in fact, been provided with assistance by legal aid counsel on a mandatory basis and had been interrogated in counsel ’ s presence, he denied the content of his confession statements made to the investigating authorities between 15 and 17 December 1998 (see paragraph 16 above). He also repeatedly refuted his statements to the police, both at the trial and on appeal.", "89. However, what is more important for the Court ’ s assessment of the Government ’ s argument is that, while finding the applicant guilty of offences to which he had confessed on 15 and 16 December 1998, the Sverdlovsk Regional Court excluded from evidence all statements made by the applicant after 16 December 1998 in the absence of legal assistance, finding that his right to counsel had been violated. The Supreme Court, acting on appeal, confirmed the Regional Court ’ s approach. The Court also finds it significant that the Regional Court refused to admit in evidence statements by other co-defendants, considering that their refusals of legal assistance under pretext of “fear of a leak of information” could not be considered voluntary (see paragraph 24 above). It follows that the domestic courts themselves had not been prepared to draw any inferences from the mere fact that the applicant had repeated his confessions during the subsequent investigative actions.", "90. At the same time the Court observes that, without taking a stance on the admissibility of the applicant ’ s statements made in police custody on 15 and 16 December 1998, both the Regional Court and later the Supreme Court acting on appeal used those statements as evidence on which to convict him, despite his denial of the statements ’ accuracy. In this connection the Court notes that although the applicant ’ s statements made on 15 and 16 December 1998 were not the sole evidence on which his conviction was based, it was nevertheless decisive for the prospects of the applicant ’ s defence and constituted a significant element on which his conviction was based. The Court therefore finds that the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that the statements made to the police on 15 and 16 December 1998 were used for his conviction. The Government ’ s argument pertaining to the insignificance of the defects which occurred during the first two days in police custody should thus be dismissed.", "(δ) Conclusion", "91. In sum, the Court finds that the lack of legal assistance to the applicant at the initial stages of police questioning irretrievably affected his defence rights and undermined the appearance of a fair trial and the principle of equality of arms.", "92. In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.", "(b) Ineffectiveness of legal assistance during the trial and absence of legal aid on appeal", "93. The parties, in addition, disputed whether legal aid counsel, Ms Ya., had effectively fulfilled her duties during the trial proceedings and whether the applicant ’ s access to counsel had been barred on appeal. In this connection the Court reiterates its finding that the fairness of the criminal proceedings against the applicant was undermined by the absence of legal assistance to him at the initial stages of police questioning. The Court also considers that the nature of the detriment he suffered because of the breach of due process at the pre-trial stage of the proceedings was such that neither effective assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings, in which the applicant ’ s statements to the police were used for his conviction, could remedy the defects which had occurred in police custody (see Salduz, cited above, § 58, and Panovits, cited above, § 75). The Court therefore considers it unnecessary to examine separately whether the fairness of the proceedings was also breached by the manner in which counsel, Ms Ya. had rendered legal assistance to the applicant and because the applicant had not been assisted by counsel during the appeal proceedings (see Komanický v. Slovakia, no. 32106/96, § 56, 4 June 2002 and Vladimir Romanov v. Russia, no. 41461/02, § 107, 24 July 2008 ).", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "94. The applicant, invoking Articles 5, 6 §§ 1, 2 and 3 and Article 13 of the Convention, complained that he had been unlawfully arrested and detained, that he had not been brought to a court immediately after his arrest, that he had been unable to challenge effectively the detention orders, that the trial court had not been competent to examine his case, that the courts had incorrectly assessed the facts and had failed to draw correct conclusions, that he had only learned about the charges against him on 30 December 1998 and that the trial court had not heard certain witnesses on his behalf and a victim, Ms Lo.", "95. Having regard to all the material in its possession, the Court finds that the evidence discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "96. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "97. The applicant claimed compensation in respect of non-pecuniary damage, leaving the determination of the amount of compensation to the Court. He further asked the Court to award him justice through re-trial.", "98. The Government submitted that as the applicant ’ s rights had not been violated, his claims should be dismissed.", "99. The Court firstly notes that in the present case it has found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1. Inasmuch as the applicant ’ s claim relates to the finding of that violation, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006 ). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see paragraph 38 above).", "100. As to the applicant ’ s claims in respect of non-pecuniary damage, the Court has found several violations in the present case. In these circumstances, the Court considers that the applicant ’ s suffering and frustration cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,5 00 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "101. The applicant did not claim any amount for the costs and expenses incurred before the domestic courts and before the Court. Consequently, the Court does not make any award under this head.", "C. Default interest", "102. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]