27.  The Government further addressed the applicant's argument of ineffective investigation into the events on 22 September 2001. They asserted that the Russian investigating authorities had done everything possible to effectively respond to the applicant's complaints of ill-treatment. They instituted criminal proceedings against the police officer and prepared his case for trial, having collected necessary evidence for the charges to be upheld in court. In the Government's view, those efforts, despite the officer's acquittal, corroborate the fact that the Russian authorities had fulfilled their  <mask> under Article 3 of the Convention in the applicant's case.


34.  The applicant complained, citing Articles 2 and 3 of the Convention, of a lack of proper assessment of his state of health before conscription, which he considered had been in breach of the State’s  <mask>; and about his conscription into military service with the resulting training he had had to undergo and punishments that had been inflicted on him, which he considered had been in breach of the State’s negative obligations.


122.  The applicants submitted that the situation they had experienced had been contrary to Article 3 of the Convention as interpreted by the Court in M.S.S. v. Belgium and Greece, cited above (§ 263). The state of extreme poverty and material and psychological want in which the authorities had placed them, in full knowledge of their vulnerability as asylum-seekers and as a family with young children including a severely disabled young daughter, had reached the threshold required by Article 3. The obligation to provide for the applicants’ basic needs as asylum-seekers had also been one of the  <mask> of the Belgian State under European law and more particularly the Reception Directive, which provided that Dublin asylum-seekers had to continue being provided with reception facilities until they were actually transferred to the responsible State, as had been confirmed by the CJEU in Cimade and Gisti, cited above (§ 58) (see paragraph 105 above), and the revised European Social Charter (see paragraphs 108-09 above).


90.  The applicants complained that the failure of the domestic authorities to provide adequate protection of the second applicant from alleged acts of sexual aggression perpetrated by his father, the first applicant’s separation from her child by the second applicant’s placement in a residential institution and her limited contact rights, as well as the lack of an effective remedy in respect of these issues, had amounted to a violation of the State’s  <mask> to protect the individuals’ physical integrity, private and family life and to provide effective remedies in this respect.


126.  The applicants reiterated their view (see paragraph 104 above) that prosecuting the first applicant’s father (only) for the criminal offence of inflicting bodily injury was not sufficient for the domestic authorities to meet their  <mask> under Articles 3 and/or 8 of the Convention. Rather, he should have been prosecuted for the criminal offence of child abuse (see paragraph 86 above). By charging the first applicant’s father with the less serious offence of bodily injury entailing a modest penalty the prosecuting authorities had acted in his favour. Besides, even those criminal proceedings had already been pending for more than four years, and there was no indication that they would be over soon and that he would be punished.


67.  The applicant complained that the facts of the case had given rise to a breach of Article 8 of the Convention. Her right to due respect for her private life and her physical and moral integrity had been violated both substantively, by failing to provide her with a legal therapeutic abortion, and as regards the State’s  <mask>, by the absence of a comprehensive legal framework to guarantee her rights.


53.  The applicants disagreed with the Government. They claimed that the case file contained sufficient evidence that their injuries had been inflicted by the prison officers and that the Government had failed to provide a credible alternative explanation as to how they had sustained them. They further argued that the investigation conducted by the authorities into their allegation of ill-treatment had not been thorough, effective and independent and that the Government had therefore failed to meet their  <mask> under Article 3 of the Convention.


105.  The applicants contended that where there are two irreconcilable versions of events, as in the present case, the State’s  <mask> under Articles 3 and 8 include a context-sensitive assessment of the credibility of the statements made and verification of all the surrounding circumstances. In the present case, however, the authorities fell short of Convention standards in this respect. According to them, not all relevant evidence was gathered in the criminal proceedings against Y.S., and the latter’s explanations were accepted as true without criticism. In the decision to discontinue the proceedings of 5 October 2009 the prosecutor wrongly interpreted the evidence and credited expert opinions carried out later in time rather than those of the time immediately following the events; he also did not discuss the findings of some of the expert opinions and the statements of certain witnesses, and relied on expert opinions provided by several experts, one of whom was V.D.’s private therapist. This cast doubts on the independence of the experts and the veracity of the conclusions.


72.  The applicant submitted that the authorities should have taken urgent action in accordance with the  <mask> arising out of Article 8 of the Convention. On the contrary, they had left her in a vulnerable situation despite being aware of the danger she faced. The initial inaction of the authorities and the subsequent inaction of the social services had thus deprived her of the protection she needed.


60.  The Government contested that argument. They submitted that the domestic authorities had conducted an inquiry and a subsequent official investigation into the applicant’s allegations in strict compliance with the domestic law. The applicant had unlimited access to court and availed herself of all remedies to protect her rights and interests. She had brought her grievances to the attention of the competent court, which had assessed the lawfulness and compliance of the investigation. The investigators had carried out a wide range of actions aimed at identifying the alleged perpetrators. Numerous witnesses had been questioned. Forensic evidence had been collected and analysed. The fact that the perpetrators had not been established could not be interpreted as the authorities’ failure to comply with their  <mask> set out in Articles 3 and 8 of the Convention.


33.  The applicant complained that on 15 June 2001 he had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation into those events. The Court will examine this complaint from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


76.  The applicant contested the Government’s view that he had lost his victim status in connection with the Warsaw Regional Court’s judgment. He stressed that it was impossible to answer the question of whether he had lost his initial status of a victim of a breach of Article 3 of the Convention without having first established how the applicant’s case had been treated by the authorities in the context of their  <mask> under Article 3 (cf. Gäfgen v. Germany [GC], § 116). In his view, these positive obligations were not respected. Defects of the investigation were not rectified in the course of the private prosecution proceedings or civil proceedings against the State Treasury and against P.O. and T.G. Accordingly, he could still claim to be a victim of the alleged violation. He found it incomprehensible that in the private prosecution proceedings the Warsaw Regional Court quashed the decisions of the lower court four times, yet the lower court eventually decided that the private prosecution was time-barred.


43.  The Government contested that statement. They pointed out that, according to the Court’s case-law, damage to personal integrity did not necessarily require a criminal-law remedy, especially where the harm had been inflicted as a result of negligence. Hence, a lack of criminal-law remedies in itself could not constitute a breach of the State’s  <mask> under Article 3 of the Convention.


84.  The applicant argued that, according to the Court’s case-law, the  <mask> under Article 2 of the Convention imposed a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person and backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. She submitted that this could also imply in certain circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual (she referred to Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998‑VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007). She concluded that in the present case the Italian State had not taken the necessary measures to protect her life and that of her son.


46.  The Government also argued that the shortcomings in the criminal proceedings had been remedied by the compensation awarded to the applicant from the alleged perpetrators in subsequent civil proceedings, and cited the Court’s case-law under Article 2 of the Convention in which civil‑law remedies had been considered sufficient (see paragraph 38 above). However, the Court observes that the cases invoked by the Government (Calvelli and Ciglio, Vo and Šilih, all mentioned above) concerned injuries caused by the negligent acts of private individuals. In contrast, in cases such as the present one, where the applicants were injured by the deliberate, violent acts of other individuals, the Court has repeatedly held that compensation awarded in civil proceedings could not be considered sufficient for the fulfilment of the State’s  <mask> under Article 3 of the Convention, as it is aimed at awarding damages rather than identifying and punishing those responsible (see Biser Kostov v. Bulgaria, no. 32662/06, § 72, 10 January 2012; Dimitar Shopov v. Bulgaria, no. 17253/07, § 39, 16 April 2013; Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 41, 14 November 2013; and Stoev and Others v. Bulgaria, no. 41717/09, § 50, 11 March 2014). The Court sees no reason to depart from that approach in the present case.


58.  The applicant argued that the existing domestic legal framework concerning racially motivated acts of violence, as interpreted by the relevant State Attorney’s Office, was deficient and that the manner in which the relevant domestic authorities had responded to her complaint of racially motivated violence had been defective to the point of constituting a violation of the State’s  <mask> under the Convention. The Court will therefore first assess the existence and adequacy of the legal mechanisms for the protection of people from violence motivated by discriminatory attitudes in the domestic legal order and then the manner of their application in practice (see Beganović, cited above, §§ 72 and 74; Valiulienė v. Lithuania, no. 33234/07, §§ 78-79, 26 March 2013; and Abdu, cited above, § 47).


43.  The applicant complained that on 22 June 2001 he had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation of that incident, which amounted to a breach of Article 13 of the Convention. The Court will examine this complaint from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


22.  The applicants complained that on 14 September 2000 they had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation of the incident. The Court will examine this complaint from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


31.  The applicant complained that the Moldovan authorities had not investigated her allegations of rape effectively. In her view, that had amounted to a violation of the State’s  <mask> to protect the individual’s physical integrity and private life and to provide effective remedies in this respect. She also argued that the requirement of corroborative evidence of resistance had violated her right to non-discrimination on the basis of her sex. Articles 3, 8, 13 and 14 of the Convention, on which the applicant relied, read as follows:


94.  The applicant believed that the time wasted on 7 July 2009, immediately after she had alerted the district prosecutor to her son’s detention in the hospital, had resulted in a missed opportunity to immediately confront the captors and obtain the release of Mr Apti Zaynalov. The Government admitted that the reaction of the prosecutor’s office had been inadequate and contributed to the criminals’ escape (see paragraph 84 above). The Court will consider this allegation as a complaint that the State had failed in its  <mask> to protect Mr Apti Zaynalov’s life.


29.  The applicants argued that the State had failed to discharge its  <mask> under Article 3 of the Convention to protect them from domestic violence and to prevent the recurrence of such violence. The authorities had been informed of M. M.’s actions, but had only fined him, which had had no effect on his behaviour. The failure to immediately remove M. M. from the common residence had resulted in the applicants being put at a constant risk of further ill-treatment.


36.  The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated on 19 July 2002 whilst in State custody and that the investigation into his complaint had not been effective. The Court will examine this complaint from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


66.  The applicant maintained his complaint. In particular, he submitted that he had been attacked because of articles he had written criticising the activities of the Ministry of Defence. He pointed out that the domestic authorities’ failure to investigate the attack on him had amounted to a violation of his right to freedom of expression. Relying on the Court’s judgment in the case of Özgür Gündem v. Turkey (no. 23144/93, 16 March 2000), the applicant also argued that the Government had failed to comply with their  <mask> under Article 10 of the Convention.


164.  The Government claimed that the investigation into the disappearance of the applicants' relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. They argued that the decisions to adjourn and to reopen the investigation signified that the authorities had continued to take steps in order to resolve the crime. They also noted that the investigation had been opened on the same day as the kidnapping, and that on that day a large number of witnesses had been questioned, that the prosecutor's office had forwarded numerous information requests to various bodies, trying to check the applicants' version of the events. The absence of results could not be treated as a breach of the  <mask> under Article 2, which entailed an obligation to use particular means.


72.  The Government, agreeing that the delays in the criminal proceedings concerning the applicant’s rape had been excessive, argued that the situation had been appropriately redressed by the competent domestic authorities, which had awarded the applicant EUR 5,000 as compensation for non-pecuniary damage sustained as a result of the violation of the right to trial within a reasonable time. Taking the view that in the specific circumstances of the present case the remedy in question had constituted appropriate and sufficient redress with regard to both the alleged violations of the “reasonable time” requirement under Article 6 of the Convention and of the applicant’s procedural rights under Article 3 of the Convention, the Government argued that she had lost her victim status. They pointed out that in the proceedings for compensation under the 2006 Act, the domestic courts had taken account of the particular circumstances of the criminal proceedings, emphasising that the applicant’s case had not been handled in a careful, resolute and rapid manner, as required by the serious nature of the criminal acts involved, and that during the lengthy proceedings the applicant had had to relive the abuse she had suffered, which had caused her severe mental distress. Consequently, the applicant had been awarded a considerably higher amount than would normally have been granted under the 2006 Act. In the Government’s opinion, the domestic courts had therefore appropriately examined the substantial deficiencies in the criminal proceedings on which the applicant had based her allegations concerning a violation of the State’s  <mask> under Article 3.


101.  The Government drew attention to the minimum threshold bringing Article 3 of the Convention into play, which in their view had not been reached, and to the limited extent of the State’s  <mask> under that Article. They pointed out that there had been no intention to deny the applicants access to safe medicinal products. The experimental product that they wished to use had not been authorised in any country, and had not undergone clinical trials. Its safety and efficacy had not been established. Not being given the opportunity to use it could not therefore be regarded as inhuman treatment. On the contrary, its use, which would have amounted to a medical experiment, might have resulted in a breach of Article 3.


86.  The applicants considered that the verbal and physical abuse to which they had been subjected amounted to inhuman and degrading treatment. They further claimed that the Georgian authorities were responsible, via the conduct of their agents, for the violent dispersal of several large religious gatherings of Jehovah’s Witnesses in 2000-2001. On a wider scale, the Georgian authorities failed to fulfil their  <mask> under Article 3 of the Convention, as they had taken no measures capable of preventing the widespread extension of religious violence against Jehovah’s Witnesses in the country and had refused to conduct prompt and efficient investigations into acts of violence of which they were fully aware and which had been perpetrated not only by private individuals but also by representatives of the State.


91.  The Government denied that the State authorities bore any responsibility for the destruction of the applicants' houses. Therefore, the State had only  <mask> under Article 8, obligations which had been fulfilled in this case by granting aid to the applicants to rebuild their homes. In any event, the Government considered that there was no obligation under the Convention to provide a home to persons who were in difficulties. They relied in this connection on the cases of Buckley v. the United Kingdom (judgment of 25 September 1996, Reports of Judgments and Decisions 1996‑IV), and Chapman v. the United Kingdom ([GC], no. 27238/95, § 99, ECHR 2001‑I).


89.  The applicants claimed that State officials had been involved in the destruction of their homes, including police officers and a deputy mayor, the latter having been convicted of a criminal offence in the case. They pointed out that the State had  <mask> under Article 8, and relied in that connection on a number of cases, for instance Burton v. the United Kingdom (no. 31600/96, Commission decision of 10 September 1996), Marzari v. Italy (decision, no. 36448/97, 4 May 1999) and Fadele v. the United Kingdom (no. 13078/87, Commission decision of 12 February 1990). The applicants alleged that the State also had positive obligations under Article 3, and claimed that it was incumbent on the Romanian Government to provide sufficient compensation to restore the applicants to their previous living conditions. Moreover, local officials were responsible for the management or mismanagement of the reconstruction funds and efforts, and had made decisions not to rebuild particular homes in retaliation for perceived “behavioural problems”. The applicants also claimed that the houses rebuilt by the State had been badly constructed and were largely uninhabitable.


109.  The applicant complained that Bulgarian law and practice did not provide effective protection against rape and sexual abuse, as only cases where the victim had resisted actively were prosecuted, and that the authorities had not investigated the events of 31 July and 1 August 1995 effectively. In her view, the above amounted to a violation of the State's  <mask> to protect the individual's physical integrity and private life and to provide effective remedies in this respect.


99.  The Government pointed out that Bulgarian law made provision for “compassionate use” of unauthorised medicinal products. However, they emphasised that such products carried serious risks, which required them to be carefully regulated. The State was entitled to refuse permission for the use of an unauthorised medicinal product, and this did not breach the right to life, but safeguarded it. The  <mask> under Article 2 of the Convention had limits, and could not exceed what was reasonable. The applicants had been given conventional medical treatment. There was no further duty to allow them to use a product which was not authorised in any member State of the European Union or had not been subjected to a clinical trial. A State could not be obliged to make available all possible drugs, let alone products whose contents and origins were not clearly known, and which had not been authorised in developed countries with strong health care systems. The product at issue did not comply with the requirements for “compassionate use” under Article 83 of Regulation (EC) no. 726/2004. If its producer met the applicable requirements, the authorities could envisage allowing its use in the future. In that sense, the applicants were not left with no hope at all.


23.  The applicant complained that on 29 October 2000 he had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation of that incident. The Court will examine this complaint from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


55.  The Government argued that, while there had been a delay between the lodging of the indictment and the first trial hearing, in general the authorities had conducted the proceedings rapidly and effectively. From the moment the applicant had told the school social worker about the sexual abuse, the police, investigating judge and public prosecutor had all acted with promptness. They had taken statements from the victims, suspect and possible witnesses, obtained expert opinions on the psychological states of the victims and J.D., and an indictment had been lodged only a few days after the investigation had been concluded. In addition, once the competent court had commenced the trial on 14 April 2008, the proceedings had again been conducted conscientiously and effectively; J.D.’s appeal against conviction and sentence had been decided in six months. The offender had therefore been identified and appropriately punished, and so the fundamental purpose of the criminal proceedings had been fulfilled. In view of this, the Government asserted that the only point in relation to which they could be considered as not having complied with their  <mask> under Article 3 was the excessive length of the criminal proceedings. In this connection, however, they argued that the situation had resulted from a systemic problem of court backlogs, which had, however, been effectively addressed as part of the “Lukenda” project created specifically to deal with considerable delays in processing cases. One of the measures adopted within this project was the 2006 Act, under which the applicant had been awarded compensation for the excessive length of the proceedings.


30.  The applicant complained that on 5 December 1999 he had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation into those events, amounting to a breach of Article 13 of the Convention. The Court will examine this complaint from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


59.  The applicants submitted that they could still be considered victims of the ill-treatment, despite the conviction of the three police officers. Given the intensity and the aim of the ill-treatment to which they had been subjected (namely, to extract confessions), it had to be recognised as torture, within the meaning of Article 3. They argued that the investigation into their ill-treatment had been slow (having lasted for almost four years), contrary to the procedural requirements of Article 3 of the Convention. They also submitted that the authorities had not complied with their  <mask> under Article 3 of the Convention, namely to ensure the preventive effect of legislation prohibiting ill-treatment. In particular, the officers had been sentenced to the minimum penalty provided for by law and even that penalty had been suspended, so that they had never been deprived of their liberty. Moreover, the officers had not been convicted of torture, but of the less stigmatising offence of abuse of power.


55.  The Government referred to the Court’s case-law to the effect that there were certain  <mask> under the Convention which required States to draw up regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives. They also required an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession could be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V). That positive obligation did not necessarily require the provision of a criminal‑law remedy in every case. In the specific sphere of medical negligence the obligation could, for instance, also be satisfied if the legal system afforded victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I).


65.  The applicant disputed this, emphasising that the remedies under the 2006 Act did not constitute effective remedies in respect of complaints made under provisions of the Convention which create  <mask> of the State, such as Articles 2 and 8 of the Convention. In support of her submissions, she referred to Šilih v. Slovenia (cited above, §§ 169-170) and Eberhard and M. v. Slovenia (no. 8673/05 and 9733/05, § 105, 1 December 2009). The applicant further asserted that the judgment in her favour adopted pursuant to the 2006 Act had only acknowledged a violation of her right to trial within a reasonable time, and not a violation of the State’s procedural requirements under other Convention provisions. In conclusion, the applicant pointed out that in order for a measure favourable to an applicant to deprive him or her of his or her victim status, a violation had to be acknowledged expressly or at least in substance, and subsequently redressed.


9.  The Government’s first defence is encapsulated in the form of a rhetorical question: “is it reasonable to measure the State’s behaviour since 1980 to a standard that was introduced by the Court for the first time in 2013?” The Government’s argument is that the obligation to promote resocialisation and set a review mechanism stems from Vinter and Others and therefore cannot be imposed in the present case. The Grand Chamber firmly rebuts this argument and finds explicitly that these  <mask> were binding on the respondent State already in 1980. From the imposition of his life sentence the applicant was entitled to have a prospect of release and the possibility of a review mechanism fulfilling the requirements flowing from the Convention. Paragraph 116 of the present judgment does not leave a shadow of doubt about the Grand Chamber’s intention to assess the respondent State’s conduct taking into account the entire period of Mr Murray’s incarceration. Thus the Court does apply the obligation to promote resocialisation and set up a review mechanism to a period of incarceration starting in 1980. In so doing, the Grand Chamber’s judgment does not proceed with a retroactive application of international legal standards, since these standards have been clear at European level since 1973 (see Resolution of the Committee of Ministers (73) 5 on Standard Minimum Rules for the Treatment of Prisoners), and even earlier than that at a global level (see United Nations Standard Minimum Rules for the Treatment of Prisoners, of 1955). To put it in a straightforward way, the Grand Chamber considers that Vinter and Others only restated penological standards that had been binding on member States of the Council of Europe since at least the nineteen-eighties.


102.  The applicant complained under Articles 3 and 13 of the Convention that he had been beaten up on 28 October 2007 and 14 February 2008 while in State custody and that there had been no effective investigation into these incidents. The Court will examine the applicant’s complaints from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


44.  The Government considered that the preliminary inquiry and the ensuing investigation conducted by domestic authorities had been in compliance with the standards established in the Court’s case-law. The investigators had identified and arrested eight alleged perpetrators. When questioned, all of them had denied the applicant’s allegations. They had maintained their innocence in the applicant’s presence. Neither the results of the genetic forensic examination nor the relevant mobile-telephone communications history had confirmed the applicant’s allegations and the suspects had been released. In 2014, after the applicant had identified A.P. as another perpetrator, he had been questioned and had undergone a polygraph test, which had confirmed that A.P. had had sexual relations with the applicant. He had been charged with rape. However, once the genetic forensic expert examination had excluded the possibility of the sperm found on the wipe towels being A.P.’s, the investigator had rightfully discontinued the criminal investigation against him. The Government furthermore pointed out that the applicant’s behaviour had had an impact on the effectiveness of the investigation. She had only belatedly reported the alleged rape to the authorities. As a result, it had been impossible to find, collect and preserve traces of the crime. Nevertheless, the investigators had carried out a complete range of actions aimed at establishing the circumstances of the crime: they had (1) commissioned a forensic medical examination to determine any possible traces of violence on the applicant’s body; (2) inspected the crime scenes in the applicant’s presence; (3) taken all necessary measures to collect physical evidence, (4) carried out other forensic examinations; (5) held a confrontation between the applicant and the alleged perpetrators; and (6) obtained information concerning the history of mobile-telephone communications between the applicant and the alleged perpetrators. In the Government’s opinion, there was nothing in the material contained in the case file to substantiate the applicant’s allegation that the authorities had failed to comply with their  <mask>, as set out in Articles 3 and 8 of the Convention.


68.  The applicants complained, in respect of each incident described above, that they had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation into those events, which amounted to a breach of Article 13 of the Convention. The Court will examine this complaint from the standpoint of the State’s negative and  <mask> flowing from Article 3, which reads as follows:


32.  The Government submitted that the authorities had taken all reasonable measures to protect the first applicant from the risk of violence and to prevent such violence from recurring. In particular, M. M. had been ordered on more than one occasion to pay a fine of MDL 500. The Government claimed that there had been no real and imminent risk to the applicants’ health prior to their formal complaint of 11 April 2011, and thus there had been no  <mask> on them to offer specific protection prior to that date.


50.  The applicants complained of a violation of Article 8 of the Convention, which includes protection of a person’s physical and psychological well-being. By not protecting them from domestic violence, the authorities had failed to discharge their  <mask> under that provision. They also submitted that they had not had effective remedies at their disposal in respect of their complaints under Articles 3 and 8 of the Convention.


29.  The Government argued that the applicant had been detained in conditions compliant with Article 3 requirements. In particular, they submitted a copy of the applicant's note in which he mentioned that on 30 November 2004 he had been moved to another cell, in which the conditions of detention were acceptable. Moreover, he was offered medical assistance on a number of occasions and was fully treated for tuberculosis after DOTS treatment in the prison hospital. The fact that he had refused to have X-ray examinations in early 2005 (see paragraph 13 above) meant that he was responsible for the failure to discover his illness at an earlier stage. Therefore, the applicant could not claim that the authorities had failed to fulfil their  <mask> to prevent and treat illnesses such as tuberculosis.


77.  The applicant challenged the Government’s arguments, observing that non-pecuniary damages could only be claimed under Article 179 of the Code of Obligations in cases falling under one of the categories listed therein, and that there was no indication that the domestic courts considered the  <mask> of the State as belonging to one of these categories or, specifically, as personality rights. The applicant pointed out that the case-law submitted by the Government was not relevant to her case, and concluded that the remedy proposed by the Government was not established in practice. Moreover, the applicant took the view that in cases such as hers the protection afforded by civil law was insufficient, since an award of compensation could not satisfy the procedural requirements of Articles 3 and 8 of the Convention.


23.  The applicant complained that the Moldovan authorities had not investigated her allegations of rape effectively. In her view, that had amounted to a violation of the State’s  <mask> to protect the individual’s physical integrity and private life and to provide effective remedies in this respect. Articles 3, 8 and 13 of the Convention, on which the applicant relied, read as follows:


74.  The applicants argued that, after they were hindered from continuing their travels to Baku, they were under the direct control of the Russian authorities and therefore in a comparable situation to persons in detention. The applicants further submitted that by not providing adequate care and protection to the applicants, as vulnerable members of society, the Russian authorities violated their  <mask> under Article 3 of the Convention, since the conditions during their stay in Derbent led to physical suffering, feelings of humiliation and subsequent negative effects on the applicants’ health.


51.  The applicant argued that there was no public interest whatsoever militating against the interests of medically recognised transsexuals in completing their gender change and having it legally entrenched. Furthermore, the absence of necessary legislation was disproportionate to the protection of any purported countervailing interest of the community as a whole. Accordingly, the State had failed in its  <mask> under Article 8 to complete the measures it had already envisaged to protect the applicant’s human dignity and prevent intrusion into his private life.


101.  The Government submitted that the first applicant’s allegation of ill-treatment at the hands of the police on 13 May 2004 at Tbilisi police headquarters had not been proved beyond a reasonable doubt owing to the absence of relevant medical certificates or other evidence that confirmed with certainty the existence of marks of the purported physical violence on the applicant. They continued by saying that it was the first applicant’s own fault that he had not requested a medical examination in the immediate aftermath of the alleged ill-treatment. He had also not reported the ill‑treatment to the public defence lawyer appointed for him on 13 May 2004 or to the doctor at Prison no. 7 upon his transfer there on 16 May 2004. As regards the domestic authorities’  <mask> under Article 3 of the Convention, the Government submitted that as soon as the applicant’s wife had complained for the first time to the prosecution authority about her husband’s ill-treatment on 8 October 2004, the investigation had been launched immediately. They referred to the comprehensive investigative actions the authority had undertaken (see paragraph 52 above). The results of the latter examination had led to the decision of 17 November 2004 to close the case for lack of established facts that were arguably constitutive of a criminal offence. It was in the light of those findings that the relevant investigative authority had not deemed it necessary to involve the applicant in the investigation by granting him victim status.


41.  The applicant challenged the Government’s arguments, observing that non-pecuniary damage could only be claimed under Article 179 of the Code of Obligations in cases falling under one of the categories listed therein, and that there was no indication that the domestic courts considered the  <mask> of the State as belonging to one of these categories. The applicant asserted that the case-law submitted by the Government was not relevant to her case and added that non-pecuniary damage resulting from the excessive length of proceedings was not considered by the domestic courts to interfere with any of the rights secured by the Code of Obligations and was, accordingly, actionable under a different legal provision. The applicant therefore concluded that she could not have been required to exhaust a remedy which, in the particular circumstances of her case, was not established in law or practice.


105.  The Government inferred from the fact that the complaint fell to be examined from the standpoint of  <mask> that “it [was] unnecessary to examine whether the interference [had been] in accordance with the law”. The refusal of the applicants’ requests had pursued a legitimate aim as it had been guided by the French principle of the inalienability of civil status, according to which the decision to amend a birth certificate could not be a matter for the individual’s choice alone, even though that choice fell within the sphere of respect for private life. It was because the reliability and consistency of French civil-status records were at stake, and in the interests of the necessary structural role of sexual identity within the country’s social and legal arrangements, that a change of gender in civil-status documents could be permitted only when the irreversible nature of the gender reassignment process had been objectively established.


53.  The applicant complained that the authorities had failed to apply relevant, in particular criminal-law, measures against the participants of the anti-Roma rallies so as to discourage them from the racist harassment that eventually took place. She also maintained that by failing to properly investigate this incidence of racist verbal abuse, the authorities had neglected their  <mask>. She relied on Article 8 of the Convention, which provides as follows:


127.  The applicants complained that, as they had been victims of aggression in relation to their participation in a peaceful assembly, by failing to conduct effective investigations the State had breached its  <mask> under Article 11 of the Convention, taken alone or together with Article 14. They further complained that they had had no effective remedy at their disposal to complain either about the fact that the crimes against them had been motivated by their sexual orientation, or that the criminal investigation had lasted too long and had been inefficient, thus hindering their access to civil redress. The complaints were communicated to the respondent Government under Articles 11, 13 and 14, which read as follows:


153.  The applicant further submitted that, regardless of whether the method of interrogation was to be classified as torture or as inhuman treatment, the Convention (he referred, in particular, to the Court’s judgment in Jalloh, cited above) and provisions of public international law (in particular, Article 14 of the International Covenant on Civil and Political Rights and Articles 15 and 16 of the United Nations Convention against Torture) warranted the exclusion of all evidence obtained by means of a violation of the absolute  <mask> and inhuman treatment. Contrary to the view taken by the domestic courts and by the Chamber, protection of the absolute right under Article 3 could not and should not be weighed against other interests, such as the satisfaction of securing a conviction. As a matter of principle, the exclusion of the evidence in question was essential for removing all incentives for engaging in torture or ill-treatment and thus for preventing such conduct in practice.


51.  The applicant submitted that the restriction on his right of access to a court did not serve a legitimate aim and was disproportionate. The House of Lords in ex parte Pinochet (No. 3) (see paragraph 34 above) had accepted that the  <mask> had acquired the status of a jus cogens norm in international law and that torture had become an international crime. In these circumstances there could be no rational basis for allowing sovereign immunity in a civil action when immunity would not be a defence in criminal proceedings arising from the same facts.


103.  The applicant considered that his confinement to the restraint bed on 22 October 2009 and the use of force and handcuffs on him on the following day amounted to torture and  <mask> in violation of Article 3 of the Convention. He argued that the measures of restraint had been used for punitive purposes. He had posed no danger to the officers since he had been in a locked cell and could only communicate with the prison officers through a hatch. He argued that in these circumstances the use of force against him had also been unlawful under the domestic law.


190.  The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention. He also stated that a life sentence which took no account of the prisoner’s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute  <mask>.


26.  The Government raised an objection of non- <mask>. They maintained that the applicant had not requested release in the judicial review proceedings and neither had he complained that the domestic law contradicted the Convention. Nor had he lodged an appeal on points of law when he was not released by the Municipal Court, which had quashed the decision not to release him. Furthermore, the applicant had not lodged a constitutional appeal, even though the Constitutional Court had the power to repeal a law that violated the Convention, and proceedings brought before it could also have indirectly led to his release.


69.  The Government also objected that, as far as the Hague Convention proceedings were concerned, the applicant had failed to comply with the requirement of  <mask> under Article 35 § 1 of the Convention, especially in so far as he was complaining under Article 6 of the Convention about the length of those proceedings and their alleged unfairness and under Article 8 of the Convention of a violation of his right to respect for his private and family life in those proceedings.


85.  The Government raised the objection of non- <mask> by the applicant. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for complaining about the inhuman and degrading conditions of his detention. Thus, the Court finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention.


62.  The Government submitted that the applicants had failed to comply with the  <mask> rule in Article 35 § 1 of the Convention. In this connection, they submitted that the death of Mehmet Emin Ayhan was still being investigated by the authorities and that the criminal proceedings against the culprits were still pending before the Diyarbakır Assize Court. Furthermore, the applicants at no stage alleged to the authorities that agents of the State were behind the killing and their complaints to the Court were completely at variance with the first applicant's statement to the police on 30 June 1992 and her letter to the public prosecutor of 16 September 1992. The Government submitted in addition that the first applicant had never made a claim for compensation in respect of her husband's death.


39.  The Government asked the Court to dismiss these complaints for failure to comply with the requirement of  <mask> under Article 35 § 1 of the Convention. In this regard, they stated that the Kars public prosecutor’s decision of 11 August 2007 had been served on the applicant and that she should have lodged an objection against that decision. The Government submitted, in the alternative, that the applicant should have lodged her application with the Court within six months of the date of the Kars public prosecutor’s decision.


105.  The Government contended that the complaint concerning the alleged violation of the right to life guaranteed by Article 2 should be declared inadmissible for non- <mask>. They considered that the applicants should have challenged the respective decisions to dispense with a criminal investigation into the catastrophe. In the first applicant's case, this was the decision taken by the Prosecutor's Office of the Elbrus District of 3 August 2000, which specifically concerned her husband's death and stated that it did not call for a criminal investigation. As regards the other applicants, the Government referred to the general ruling of the same Prosecutor's Office, allegedly taken on the same date, that no criminal investigation into the natural disaster of 8-25 July 2000 was needed. Moreover, the applicants did not rely on the violation of the right to life in the civil proceedings for damages.


83.  The Government contended that the applicant had not exhausted domestic remedies in that he had omitted to raise in substance his grievance under Article 3 before the district judge on 17 October 2006. The Court considers that the issue of  <mask> is closely linked to the merits of the applicant’s complaint under Article 3 of the Convention. Thus, the Court finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 3 of the Convention. No other ground for declaring it inadmissible has been established. This complaint must therefore be declared admissible.


51.  The Government contended that the application should be declared inadmissible for non- <mask>. They submitted that the investigation into the disappearance of Musa Gaytayev had not yet been completed. They further argued that it had been open to the applicants to challenge any acts or omissions of the investigating authorities in court and that their complaint had been granted in part by the town court. They also argued that the applicants could have pursued civil complaints but had failed to do so.


72.  The Government contended that the applicant’s complaint under this head should be declared inadmissible for non- <mask>, since the investigation into the killing of her husband was still pending. They further denied their responsibility for the death of the applicant’s husband, stating that he had been murdered by a private individual and that the authorities had never been notified of the existence of any danger to the life of the applicant’s husband.


36.  The Government pleaded non-compliance with the six-month rule and non- <mask>. They stated that the final decision in the criminal case against the applicant was given by the Desniansky Court on 21 December 2000 (i.e. more than six months before the application was lodged with the Court), which decision the applicant had failed to challenge in ordinary appeal proceedings. The Government maintained that the subsequent reversal of this decision could not be taken into account as it was effected in the course of the supervisory review. The applicant disagreed.


174.  The Government raised the possibility for the applicants to make use of judicial review of the decisions of the investigating authorities in the context of  <mask>. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions of investigating authorities before a court. Furthermore, the investigation was resumed by the prosecuting authorities themselves a number of times owing to the need to take additional investigative steps. However, they still failed to investigate the applicants' allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant's failure to exhaust domestic remedies within the context of the criminal investigation.


87.  The applicant contested this view. In particular, he submitted that he had complained about his unlawful detention and extradition to the domestic courts. The applicant further stressed that the GPO of Ukraine decision of 27 September 2004 to extradite him had constituted a final decision for the purpose of  <mask>. It was not amenable to appeal as to its lawfulness, as the domestic courts were allowed to review only the existence of the formal grounds for extradition and not the compliance of a decision to extradite with the obligations set out in Articles 2 and 3 of the Convention. In that respect, he referred in particular to Resolution no. 8 of the Plenary Supreme Court of 8 October 2004 on issues related to the application of legislation governing the procedure and length of detention (arrest) of persons awaiting extradition, which summarised the domestic courts' practice on extradition issues.


54.  The Government contended that the application should be declared inadmissible for non- <mask>. They submitted that the investigation into the disappearance of Ayub Takhayev had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about the allegedly unlawful detention of their relative or to challenge in court any actions or omissions of the investigating or other law enforcement authorities, but that the applicants had not availed themselves of that remedy. They also argued that it had been open to the applicants to bring civil claims for damages pursuant to Article 1069 of the Civil Code which theybut they had failed to do so.


14.  The Government asked the Court to dismiss the application as inadmissible for failure to comply with the requirement of  <mask> under Article 35 of the Convention. In this connection, they maintained that the applicant had to complain before the national authorities prior to his application to the Court. They stated that at no stage of the domestic proceedings did the applicant question the length of the proceedings.


32.  The Government, for the first time before the Grand Chamber, raised the issue of non- <mask> owing to the fact that the Chamber judgments had been based on facts and legal arguments which had not been part of the applicants’ case before the domestic courts. However, there had been nothing to prevent the Government from raising a non-exhaustion objection in due time.


156.  The Government requested the Court to declare the complaints raised under Articles 8, 13 and 14 of the Convention inadmissible on grounds of non- <mask>, as the applicant had not raised them in compliance with the procedural requirements of domestic law before the Constitutional Court. They pointed out that in accordance with its established case-law, the Constitutional Court was bound not by the reasoning of a constitutional appeal but only by the final plea in the appeal (they referred to the domestic judgments in I. ÚS 89/09 of 29 November 1994 and Pl. ÚS 16/93 of 24 May 1994). In addition, the Constitutional Court could only decide on an interference which the appellant had explicitly specified in the final plea in his constitutional appeal (see ÚS 3336/09 of 18 February 2010). They maintained that it appeared from the final plea in both the applicant’s constitutional appeals that he had properly raised only his complaint under Article 5 of the Convention. The Government emphasised that the Constitutional Court had constantly allowed legally incapacitated persons to resort to it independently and had not dismissed their constitutional appeals on the grounds that they had not been entitled to lodge them (they referred to ÚS 412/04 of 7 December 2003; II. ÚS 303/05 of 13 September 2007; II. ÚS 2630/07 of 13 December 2007; and II. ÚS 1191/08 of 14 April 2009).


86.  The Government argued that the complaint should be rejected on the ground of non- <mask> because the applicant had failed to pursue his compensation claim before the domestic courts. On 10 November 2004 the Sabail District Court discontinued the proceedings due to the applicant's or his lawyer's failure to appear before the court without a good reason.


160.  The Government observed that the applicant had been free to receive all the visits he wished in Campione d’Italia, in particular from his grandchildren. The applicant had not alleged that it would have been impossible or particularly difficult for his family or friends to go to Campione d’Italia, where he could have carried on his family and social life as he saw fit, without any restriction whatsoever. As regards exceptional events, such as the marriage of a friend or relative, he could have sought an exemption from the applicable rules. In addition, as shown in connection with the  <mask>, the applicant could have requested to move to another part of Italy. Lastly, the Convention did not protect the right of a foreign national to visit a State that had prohibited him from entering it simply so that he could maintain his residence in an enclave which he could not leave without crossing that State. For all those reasons the Government were of the opinion that the disputed measures did not constitute interference with the rights guaranteed by Article 8.


56.  The Government further submitted that the Court’s findings in Borbála Kiss v. Hungary (no. 59214/11, §§ 25-26, 26 June 2012) and Gubacsi v. Hungary (no. 44686/07, §§ 31-32, 28 June 2011) were not applicable in the present case, since in those cases the reason for dismissing the Government’s preliminary objection of non- <mask> was the apparent legal uncertainty concerning the substitute private prosecution proceedings. In the present case, however, the applicant had been informed by means of the decision of 21 March 2012 of the Gyöngyös Public Prosecutor’s Office about the possibility of instituting private prosecution proceedings (see paragraph 27 above). She had availed herself of that remedy, but had subsequently dropped the charges. Furthermore, a court judgment in such proceedings could have also opened the way for a constitutional complaint. The Government suggested that the Court should take the same approach as it had in the case of Horváth and Vadászi v. Hungary ((dec.) no. 2351/06, 9 November 2010), which was declared inadmissible for non-exhaustion of domestic remedies on the ground that the applicants had not raised the issue of the racist motives of the alleged criminal offence in the substitute private prosecution proceedings.


71.  The applicant submitted, reiterating her arguments concerning the  <mask> (see paragraph 68 above), that the State institutions in Croatia did not function properly, which was one of the reasons why no measures had been taken concerning her complaints of ill-treatment in the hospital. Moreover, the applicant pointed out that there was a questionnaire which every patient should have the possibility to submit on his or her release from hospital but which had never been given to her because the hospital had been afraid of what she might reveal. She stressed that the State institutions had been ignoring her complaints about her various other problems for years, and that she had lost any hope of their protecting her rights. She contended that in a situation in which she had been forcefully admitted to hospital and tied to a bed with restraining belts, and then involuntary retained for a further thirty days, the onus had been on the domestic authorities to examine her complaints properly. She had submitted the complaints in a handwritten letter because that was all she could have done in such circumstances.


61.  The Government argued that the application should be declared inadmissible for non- <mask>. They submitted that the investigation into the abduction of Bekman Asadulayev had not yet been completed. They further claimed that the applicants had not brought any civil claims for compensation for damage under Article 1069 of the Civil Code or challenged the investigators' decisions in court under Article 125 of the CCP.


26.  The Government submitted that the application must be rejected for failure to comply with the requirement of  <mask> under Article 35 § 1 of the Convention. They contended that the applicant had failed to avail himself of the remedy provided by domestic law. They claimed that the proceedings would continue if the charges that had not been paid by the responsible party were paid by the applicant. They referred to the Court's decision on the case of Poghosyan v. Armenia (no. 36211/03, 5 October 2006) by which it declared the application inadmissible for non-exhaustion of domestic remedies. They maintained that, in that case, the Court had examined whether the failure of the applicant to institute proceedings had been a result of a State omission or the applicant's own actions, and had concluded that the applicant had failed to take all possible and accessible measures to advance the enforcement of the judgment. They maintained that, in the instant case, regard should also be had to the fact that the debt arising from the judgment was not owed by a State enterprise but by a private limited company.


34.  The Government asked the Court to declare the application inadmissible for non- <mask> and accordingly to reconsider the Chamber's decision that an appeal to the Court of Cassation on points of law was not a remedy that had to be exhausted. In the Government's submission, the Court had erred in its decision Scordino v. Italy (dec.), no. 36813/97, ECHR 2003‑IV) in finding that, as the Court of Cassation had always held that complaints about the amount of compensation related to questions of fact, which fell within the exclusive jurisdiction of the lower courts, an appeal on points of law was not a remedy that had to be exhausted Admittedly, the Court of Cassation, which examined points of law, could not superimpose its own assessment of questions relating to the merits or the assessment of the facts and evidence on those of the lower courts. It did, however, have power to find that a decision of the lower courts was inconsistent with the correct interpretation of the law or contained grounds that were illogical or contradictory. In such a case it could set out the applicable legal principle or mark out the broad lines of the correct interpretation and remit the case to the lower court for a fresh assessment of the evidence on the basis of those directions. That submission had, moreover, been confirmed by the four judgments (nos. 1338, 1339, 1340 and 1341) delivered by the plenary Court of Cassation on 26 January 2004 (see paragraphs 22 and 23 above).


41.  The Government argued under Article 35 § 1 of the Convention that this part of the application must be rejected for non- <mask> or, alternatively, for failure to comply with the six-month rule. In this regard, they maintained that the applicant had neither raised this complaint during the proceedings nor lodged an official complaint with the public prosecutor. They further submitted that the applicant should have lodged his application within six months following the date on which his house was searched, i.e. on 28 November 1995.


52.  The Government argued non- <mask>. They submitted that for the 21 June 2001 incident the applicant should have used the appeal introduced by Article 2781 of the Code of Criminal Procedure, effective since 1 January 2004. Furthermore, for the complaint concerning the alleged ill-treatment in detention, the conditions of detention and the alleged lack of adequate medical treatment the applicant could have lodged a criminal complaint for abusive behaviour, illegal arrest, abusive investigation and inhuman treatment and torture, crimes prohibited by the Criminal Code, or a complaint under the provisions of the Emergency Ordinance no. 56/2003.


59.  The Government contended that the application should be declared inadmissible for non- <mask>. They submitted that the investigation of the disappearance of Lecha and Ibragim Betayev had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about the allegedly unlawful detention of their sons or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of that remedy.


18.  The Government invited the Court to reject the applicant’s complaint for non- <mask>. It maintained that the applicant could have filed another constitutional complaint, after the Constitutional Court had dismissed his first one. Bearing in mind that the Constitutional Court changed its practice in this respect, so as to comply with the Court’s case-law, the Government claimed that a complaint under section 63 of the Constitutional Court Act would have been an effective remedy for the applicant’s length complaint.


89.  The Government submitted that the applicants’ complaint under Article 6 § 2 of the Convention was inadmissible for non- <mask>. In particular, they referred to Article 18 § 2 of the Civil Code of Georgia, which stipulated that “a person is entitled to demand in court the retraction of information that defames his honour, dignity, privacy, personal inviolability or business reputation.” Apart from failing to use the above-mentioned remedy, the applicants, according to the Government, had raised the issue of the alleged violation of the principle of presumption of innocence for the first time only before the Court. Therefore, according to the Court’s well-established practice, the applicants’ complaint under Article 6 § 2 of the Convention should be declared inadmissible.


27.  The Government requested the Court to dismiss the complaint as being inadmissible for failure to comply with the requirement of  <mask> under Article 35 of the Convention. They submitted that the applicant did not file a complaint against the trial judge with the domestic authorities, such as the Ministry of Justice or a public prosecutor’s office.


75.  The applicant disagreed. He insisted that the domestic investigation in his case was ineffective, having lasted for over seven years without any meaningful result, and that he could not be reproached for not waiting for a final outcome. In any event, the applicant considered that the issue of the  <mask> was to be joined to the merits of his complaint about the alleged ineffectiveness of the investigation.


36.  The applicant disagreed, noting that all the complaints he had raised with the relevant national authorities, including the domestic courts, were, in substance, the same as those lodged with the Court. The rule of  <mask> did not imply that the applicant should have specifically referred to the Convention provisions in his complaints to the domestic authorities.


30.  The Government pointed out that the proceedings in the applicants' case were still pending and that consequently they could lodge a constitutional complaint in line with the new case-law. Since the latter permitted the Constitutional Court not only to award compensation but also to set a time-limit for the competent court to decide the case, the Government contended that it was an effective remedy and that the Court should make an exception to the general rule of  <mask> (according to which an applicant is required to exhaust only the remedies available at the moment of the introduction of an application with the Court).


45.  The Government submitted, in the alternative, that the applicant’s complaint about the period of his pre-trial detention between 10 March and 3 April 2003 should be declared inadmissible for non- <mask> since the applicant had raised before the domestic authorities only the issue of the unlawfulness of his detention between 20 and 27 May 2002, but not the period from 10 March to 3 April 2003.


44.  The Government raised an objection of non- <mask>. They argued that the applicant could have challenged the Kúria’s judgment before the Constitutional Court under Article XXVIII of the Fundamental Law of Hungary, which guaranteed the right to a fair trial. They referred to decision no. 7/2013 (see paragraph 33 above) in which the Constitutional Court examined, in the light of both Article XXVIII of the Fundamental Law and Article 6 of the Convention, the fairness of a high court’s final judgment, with particular regard to the question of whether the high court had observed its obligation to give appropriate reasons for its decision. In the Government’s view, the Constitutional Court’s decision demonstrated that the applicant could have brought his complaint relating to the unfairness of the proceedings and, in particular, the lack of appropriate reasoning, before the Constitutional Court – a legal avenue of which he had not availed himself.


13.  The Government asked the Court to dismiss the complaint as being inadmissible for failure to comply with the requirement of  <mask> under Article 35 § 1 of the Convention. The Government argued that the applicants could have challenged the length of their detention in police custody by invoking Article 128 of the Code of Criminal Procedure.


72.  The Government invited the Court to reject the application for non- <mask>. They submitted that the applicant could have lodged a constitutional complaint under section 63 of the Constitutional Court Act. In support of their argument, the Government produced a copy of the Constitutional Court decision of 2 February 2005 (see paragraph 66 above) in which that court had found a violation of the complainant's right to a hearing within a reasonable time on account of lengthy enforcement proceedings.


55.  The Government also pleads non- <mask> by the applicants. They confirm that the three acts established the situation of which the applicants complain, namely, the decision of the Ministers of Education and Finances, of 25 January 2008, creating the 12th school, the decision of the head of the Regional Department of Education defining the zone of recruitment of this school, of 8 April 2008, and the prefectural judgment of 24 June 2008 having permitted the provisional establishment of the 12th school in the prefabricated annex of the 10th school, constituting administrative enforceable acts susceptible to be the subject of an action for annulment before the Council of State, pursuant to Articles 45 and 48 of Decree No. 18/1989.


113.  The Government also mentioned that the applicants had the opportunity to apply for judicial review of the decisions of the investigating authorities in the context of  <mask>. The Court observes that, owing to the time that had elapsed since the events complained of, certain investigative steps that ought to have been carried out much earlier could no longer be usefully conducted. The Court finds therefore that it is highly doubtful that the remedies relied on by the Government would have had any prospects of success and considers that they were ineffective in the circumstances of the case. It thus rejects the Government's objection in this part as well.


19.  The Government invited the Court to reject the applicant’s complaint for non- <mask>. It maintained that the applicant could have filed another constitutional complaint, after the Constitutional Court had dismissed his first one. Stressing that the Constitutional Court changed its practice in this respect, so as to comply with the Court’s case-law, the Government claimed that a complaint under section 63 of the Constitutional Court Act would have been an effective remedy for the applicant’s length complaint.


20.  The Government asked the Court to dismiss the complaint as being inadmissible for failure to comply with the requirement of  <mask> under Article 35 § 1 of the Convention. The Government argued that the applicant could have, pursuant to Article 128 of the Code of Criminal Procedure, challenged the length of his detention in police custody. They maintained that the applicant could also have sought compensation pursuant to Law no. 466 pertaining to the payment of compensation to persons unlawfully arrested or detained.


63.  The Government claimed that the applicant had failed to fulfil the requirement of  <mask> pursuant to Article 35 § 1 of the Convention in that he had failed to challenge the length of these proceedings by means of a complaint under Article 127 of the Constitution, lodged in accordance with the Constitutional Court’s established practice while the proceedings were still pending.


41.  The Government submitted that the application should be declared inadmissible for non- <mask>. They noted that following the rejection of the applicant’s claim by the Chancellor of Justice on 15 October 2012, the applicant had not initiated proceedings before the general courts regarding compensation for the alleged violation of the Convention. This option still remained open to him and, in the Government’s view, should be used before lodging an application before the Court.


77.  The Government submitted that this complaint should be rejected for non- <mask>. In particular, they maintained that the applicant did not raise the issue of a lack of legal representation in the course of the appeal proceedings, and failed to contest an alleged lack of questioning of particular witnesses or other alleged violations of his defence rights. Instead, the applicant only requested the mitigation of the punishment to be imposed on him.


79.  The applicants argued that there were no formal requirements under domestic law for a defendant to plead an argument before the domestic courts. In this respect they referred to Section 171 (2) of the CPA which stated that an argument is admissible at any time during criminal proceedings and in both written and verbal form. Therefore, their oral submissions should be taken into account for the purpose of the rule of  <mask>.


84.  The Government argued that the applicant’s complaint of police torture must be rejected for non‑ <mask> pursuant to Article 35 § 1 of the Convention, as he had not challenged the decision of 26 January 2001 either before the higher prosecutorial authorities or the courts. Relying on the Court’s judgments in Naumenko v. Ukraine (no. 42023/98, 10 February 2004) and Yakovenko v. Ukraine (no. 15825/06, 25 October 2007), the Government stated that an appeal to prosecutors and the courts had to be regarded as an effective remedy in the applicant’s situation. In reply to the Court’s question concerning the practice of the domestic authorities dealing with similar complaints of ill-treatment, the Government submitted copies of several decisions concerning two individual complainants issued by the prosecutors and the courts (see paragraphs 61-62 above).


56.  The Government made four preliminary objections. They first argued that the complaint was incompatible ratione personae with the provisions of the Convention because the applicant could not claim to be a victim for the purposes of Article 34. Second, they maintained that he had not complied with the six-month rule laid down in Article 35 § 1. The third objection concerned his non-compliance with the rule of  <mask>. Fourth, they submitted that, in any event, the complaint was incompatible ratione materiae with the provisions of the Convention since Article 14 did not apply in the case.


28.  The Government went on to stress that the proceedings in the applicant’s case were still pending and that consequently he could have lodged a constitutional complaint in line with the new case-law. Since the latter permitted the Constitutional Court not only to award compensation but also to set a time-limit for the competent court to decide the case, the Government contended that such a complaint was an effective remedy and that the Court should make an exception to the general rule of  <mask>, according to which an applicant is required to exhaust only the remedies available at the moment of the introduction of an application with the Court.


111.  The Government submitted that the applicants' complaints under Article 5 should be declared inadmissible for non- <mask>. They maintained, firstly, that the applicants should have brought administrative proceedings under Article 146 of the Constitution against the Republic, challenging the lawfulness of the decisions to detain and deport them. In such proceedings the applicants could have claimed that the decisions in question had been made in excess or abuse of power and were contrary to the relevant provisions of the Aliens and Immigration Law and incompatible with the Constitution and the Convention. Had the applicants been successful the Supreme Court could have granted them effective declaratory remedies under Article 146 § 4 of the Constitution and they could have instituted civil proceedings for compensation under Article 146 § 6 of the Constitution.


59.  The Government raised an objection of non- <mask> by the applicant. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for the complaint that he had been subjected to inhuman and degrading treatment by being detained in inadequate conditions. The Court thus finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention.


18.  The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Ankara State Security Court must be rejected for non- <mask>. They maintained that the applicant had not invoked this complaint before the domestic courts. In this respect, they referred to the case-law of the Court (in particular Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V).


22.  The Government raised an objection of non- <mask>. In particular, the applicant had not pursued a civil action for damages against the two police officers based on the general provisions concerning civil damages provided for in Articles 998-999 of the Civil Code, in force at the relevant time. They maintained that, since the criminal courts had left the applicant’s request for damages unresolved, he could have brought a separate action in this respect before the civil courts. They also submitted that the intention to commit a crime was an element required only to establish criminal responsibility, while before the civil courts negligence was enough to establish a person’s civil liability. The Government did not submit examples of relevant domestic case-law in this respect. They further contended that in the case Lazzarini and Ghiacci v. Italy ((dec.), no. 53749/00, 7 November 2002) the Court had held that the applicants had a civil remedy available, which, following the rejection of their criminal complaint, they had failed to pursue.


217.  The applicants submitted that a claim for damages under section 1 of the 1988 Act was not an effective remedy, citing the reasons they had put forward in their submissions relating to the  <mask>. They went on to say that the possibility of bringing proceedings under Articles 256 and 257 of the Code of Administrative Procedure 2006 was not an effective remedy either, for several reasons. First, some aspects of the conditions of their detention flowed directly from the prison regime under which they were placed, and were therefore not actionable under those Articles. In this regard they referred to the Court judgment in Sabev (cited above, § 85). Secondly, neither the 2009 Act nor its implementing regulations laid down clear rules on the treatment of life prisoners. Thirdly, it was unclear which authority would be the proper defendant, and there did not exist an appropriate mechanism for enforcing a mandatory injunction against a public authority. The administrative courts considered that authorities that were second-tier beneficiaries of budget funds – and the likely defendant to a claim under Articles 256 and 257 was likely to be just such an authority – could not be fined for failure to comply with an injunction. Moreover, any such injunction would be of limited duration and would not be able to provide the applicants with lasting redress. Lastly, the only two examples cited by the Government were judgments given by first-instance administrative courts. Accordingly, there was no established case-law in that domain.


23.  The Government argued, in the first place, that the complaint was inadmissible for non- <mask> as the first and second applicants had not applied for compensation bonds. The Court refers to its detailed reasoning in Velikovi and Others, where it found that at the relevant time the bonds compensation scheme did not secure adequate compensation with any degree of certainty (see Velikovi and Others, cited above, § 227). Furthermore, the Court has already examined an identical objection in a similar case and has rejected it (see Dimitar and Anka Dimitrovi v. Bulgaria, no. 56753/00, § 23, 12 February 2009). It does not see a reason to reach a different conclusion in the present case.


91.  The Government raised an objection of non- <mask>. They argued that the applicant had not complained to the investigating prosecutor that he had had difficulties in preparing his defence. They also contended that the applicant had not lodged a complaint with the delegated judge from Gherla Prison on the basis of Article 61 of the Rules of Application of Law no. 275/2006 and Article 1 § 4 of Order no. 2714/C/2008, as amended, taken in conjunction with Article 38 of Law no. 275/2006.


88.  The Government raised the objection of non- <mask> by the applicant. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint that he did not have at his disposal an effective remedy for complaining about the inhuman and degrading conditions of his detention. Thus, the Court finds it necessary to join the Government's objection to the merits of the applicant's complaint under Article 13 of the Convention.


37.  The Government raised a preliminary objection of non- <mask>, in so far as the applicant had not complained to the domestic authorities under the Prison Sentences (Execution) Act about the conditions of his detention. They argued that the remedy under that Act was effective, having regard to the domestic jurisprudence already sent by them in other previous cases.


57.  The Government submitted that this aspect of the case was inadmissible on the ground of non- <mask>. They contended that the applicant could have raised his complaints before the public prosecutor in charge of supervising the general lawfulness of conduct in penal institutions. Any decision taken by the prosecutor could be further challenged before the domestic courts.


190.  The Government maintained that the applicants had not been prevented from entering the town of Lachin or the surrounding villages; in fact, they had never tried to enter these territories since their alleged flight and had not applied to the Armenian authorities or the “NKR” to have any of their rights protected or restored. As mentioned already in regard to the issue of the  <mask>, Armenia’s position in the Minsk Group negotiations – that the return of displaced persons can be considered only after a final settlement of the status of the “NKR” has been agreed upon – referred to displaced persons as a group and did not concern who could obtain entry visas if they had a legitimate reason to enter the “NKR” or Armenia. Travel to the “NKR” involved no danger, as the only open entry point – the road from Yerevan to Stepanakert – is situated far away from the Line of Contact. The Government further asserted that the capture of Lachin – as well as Shusha/Shushi – was a lawful act of self-defence against war crimes committed by Azerbaijan, in particular military attacks on Stepanakert. It was necessary to create a “humanitarian corridor” to Armenia, as large numbers of people in Nagorno-Karabakh were killed or in danger of starving to death. Reiterating that the Republic of Armenia bore no responsibility for the actions alleged by the applicants, they submitted that there had been no violation of Article 1 of Protocol No. 1.


68.  The applicant, having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, has chosen not to avail himself of this remedy. Accordingly, the complaint about the unreasonable length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non- <mask>.


19.  The Government invited the Court to reject the applicant’s complaint for non- <mask>. It maintained that the applicant could have filed another constitutional complaint, after the Constitutional Court had dismissed his first one. Bearing in mind that the Constitutional Court has changed its practice in this respect, so as to comply with the Court’s case-law, the Government claimed that a complaint under section 63 of the Constitutional Court Act would have been an effective remedy for the applicant’s length complaint.


36.  The Government asked the Court to declare the application inadmissible for non- <mask> and accordingly to reconsider the Chamber’s decision that an appeal to the Court of Cassation on points of law was not a remedy that had to be exercised. In the Government’s submission, the Court had erred in its decision in Scordino v. Italy ((dec.), no. 36813/97, ECHR 2003‑IV) in finding that, as the Court of Cassation had always held that complaints about the amount of compensation related to questions of fact, which fell within the exclusive jurisdiction of the lower courts, an appeal on points of law was not a remedy that had to be exercised. Admittedly, the Court of Cassation, which examined points of law, could not superimpose its own assessment of questions relating to the merits or the assessment of the facts and evidence on those of the lower courts. It did, however, have the power to find that a decision of the lower courts was inconsistent with the correct interpretation of the law or contained grounds that were illogical or contradictory. In such a case it could set out the applicable legal principle or mark out the broad lines of the correct interpretation and remit the case to the lower court for a fresh assessment of the evidence on the basis of those directions. That submission had, moreover, been confirmed by the four judgments (nos. 1338, 1339, 1340 and 1341) delivered by the plenary Court of Cassation on 26 January 2004 (see paragraphs 24 and 25 above).


144.  The applicant company further contended that, given the multiple judicial proceedings it had already initiated seeking to have its rights restored, and noting the authorities’ non-compliance with the final judicial decisions delivered in its favour, it could not have been reasonably expected to initiate any additional proceedings in order to comply with the requirement of the  <mask>. In its view, it had done everything possible at the domestic level before bringing its complaints to the Court.


165.  The Government pointed out in their submissions that the investigation was pending at the time of the replies and that the applicants could have appealed its results. In the Government's view, the failure to do so should have resulted in the dismissal of the applications for non- <mask>. However, the Court is not persuaded, in the light of the delays and omissions described above, that such appeal would have been able to remedy the defects in the proceedings, even if the applicants had been properly informed of the proceedings and had been involved in it. The applicants must therefore be regarded as having complied with the requirement to exhaust the relevant criminal-law remedies.


42.  The Government raised objections regarding  <mask> similar to those which the Court has already dismissed in a number of similar cases concerning the non-enforcement of court judgments (see Sokur v. Ukraine (dec.), no. 29439/02, 16 December 2003, and Voytenko, cited above, §§ 27-31). The Court considers that these objections must be rejected for the same reasons.


36.  The Government also argued, in general terms, that the applicant could have exercised his so-called “right to rehabilitation” (see paragraph 21 above). The Court need not decide whether the procedure referred to by the Government constituted on the facts a remedy within the meaning of Article 13 of the Convention or for purposes of exhaustion within the meaning of its Article 35 § 1, since it does not transpire from the case file that the applicant was given a copy of the decision of 20 January 2006. Neither is there any evidence showing that he was apprised of his right to apply for compensation in respect of damage caused by criminal prosecution (compare Sidorenko v. Russia, no. 4459/03, § 39, 8 March 2007). Furthermore, the Government did not indicate how that would have remedied the complaint currently before the Court in respect of the alleged excessive length of the criminal proceedings (see Karamitrov and Others v. Bulgaria, no. 53321/99, §§ 59-60, 10 January 2008). The Government produced no copies of domestic court judgments where awards had been made in the proceedings under Articles 133 and 134 of the CCrP providing redress for excessive length of criminal proceedings. Having regard to this, the Court considers that the Government’s argument as to non- <mask> in respect of the applicant’s complaint under Article 6 § 1 of the Convention must be dismissed.


78.  The Government contended that the applicants’ complaints should be declared inadmissible for non- <mask>. They submitted that the investigation into their relative’s death was pending. They further stated that the applicants had had an opportunity under Articles 124 and 125 of the CCP to challenge acts and omissions of the investigating authorities before prosecutors or courts but had failed to make use of those procedures. In particular, the Government suggested that the applicants should have appealed against the refusal to institute criminal proceedings issued on 13 June 2004. In that connection they referred to the cases of E., S., I. and D., in which the domestic courts granted the applicants’ complaints and ordered the investigating authorities to secure their access to the materials in the files relating to the investigation into their relatives’ disappearance. The Government also referred to the case of a Ms Kh., where the domestic courts allowed her complaint about the decision to suspend the investigation into the disappearance of her relative and instructed the investigating authority to investigate it thoroughly. The Government omitted to furnish copies of the decisions they referred to.


26.  The Government submitted that the application should be rejected for non- <mask>, as although the applicant had raised a claim under Article 11 of the Convention in the EAT it did not press that submission at the oral hearing and accepted that the EAT should proceed to interpret section 174 without reference to Article 11. It was then not able to pursue an appeal against the EAT for ignoring that claim. In particular, the applicant did not require the EAT to apply section 3 of the Human Rights Act 1998, by seeking to construe the legislation so as to make it compatible with its Convention right. It was only concerned to ensure that it could rely on Mr Lee's various activities as the basis for expelling him; it did not propose any construction of section 174 which would have accorded with its case before this Court, namely that it had an Article 11 right to determine its own membership. They submitted that Article 35 § 1 was not satisfied where an applicant relied on some other ground for impugning a measure, ignoring a possible Convention argument (Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III). They asserted that, if the applicant had pressed its submission that Article 11 entitled it to choose its own membership save where exclusion or expulsion caused loss of livelihood and that submission had been accepted, there was ample scope for a creative interpretation of section 174 which would have given effect to that conclusion, including the possibility of reading in a clause “save as necessary to avoid breach of Convention rights”.


78.  The Government argued that the first applicant's complaint was inadmissible for non- <mask>. They submitted, firstly, that the first applicant could have brought a civil action for assault in respect of his complaint. In the context of such proceedings he could have complained that he had been subjected to treatment contrary to Article 8 of the Constitution and Article 3 of the Convention and could have sought, in addition to damages, a declaratory judgment that there had been a violation of his constitutional and Convention rights.


23.  The Government moreover based their preliminary objection of non- <mask> on the fact that the applicant had not filed another motion, against the original police decision, but been contented with challenging the decision on non-competence. However, the Court is not convinced that the proceedings which were pursued by Mr K. but not by the applicant can be considered in the circumstances an effective remedy whose omission falls foul of Article 35 § 1 of the Convention. Given the instantaneous nature of a political demonstration – the impact of which may rapidly diminish with the lapse of time from the triggering event – a judicial procedure, which included several remittals and decisions maintaining the ban and which produced at last a decision to the contrary only after more than four years, can hardly be regarded as effective or adequate and must be attributed a chilling effect on the freedom in question (see, a fortiori, Bączkowski and Others v. Poland, no. 1543/06, §§ 67 to 73, 3 May 2007). For the Court, the applicant’s omission to pursue this legal avenue in addition to the one utilised cannot be held against him, all the more so, since there appears to be no obstacle to the authorities’ assessing proportionality also in those proceedings, of which the applicant availed himself. The Government’s preliminary objection must therefore fail.


76.  The Government raised a preliminary objection of non- <mask>, arguing that the applicant could have lodged a general tort law action under Articles 998 and 999 of the former Romanian Civil Code against Dr I.M. or other persons she considered responsible for the deaths of her daughter and granddaughter. The remedy in question would have been available to the applicant, particularly because it was exempted from judicial tax, and according to the Court’s case-law was adequate, given the circumstances of the case. They also contended that according to the relevant domestic legal doctrine criminal law considered the fault (culpa) a form of guilt only where it met a high level of severity. However, tort liability could be engaged even for the slightest negligence (culpa cea mai uşoară). Therefore, the scope of application of tort liability is wider than that of criminal liability. Consequently, the findings of the domestic authorities excluded only Dr I.M.’s criminal liability, and not his tort liability. They also submitted that, according to the relevant criminal procedure rules, since criminal proceedings against Dr I.M. had never been opened, separate general tort law proceedings would not have been suspended pending the outcome of the criminal proceedings.


160.  The Government submitted that these complaints were inadmissible in view of the non- <mask>, as the applicants had never aired them before any domestic judicial or other competent authority, including the Ministry of Defence and the Ministry of Health. As an alternative, assuming there were no effective remedies to exhaust, these complaints had been lodged out of six months of the events complained of. In any event they were manifestly ill-founded. The applicants provided no evidence whatsoever in support of their factual account of events. According to the information available to the Government, the authorities did everything in their power to ensure respectful and proper handling and identification of the remains of the accident victims and there was nothing in their conduct to cause the applicants suffering beyond that, which was unavoidable in their situation.


76.  The applicant contested the Government’s view. He pointed out that both judgments of the Venice Youth Court had been given in the course of the same set of proceedings. The enforcement proceedings in Austria had started on 22 September 2009 when he had sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009 and were still pending. Consequently, his application lodged on 14 January 2013 had been introduced in good time. The applicant did not comment on the Government’s submissions concerning  <mask>.


74.  The Government maintained that the applications were inadmissible for non- <mask> or, alternatively, premature. They argued that only the proceedings before the courts administering the commercial register had ended, whilst the others - actions to set aside the general meeting resolutions, actions to determine the value of the compensation, and actions in damages and/or seeking just satisfaction - were still pending or were never brought. They maintained that the law hindering the applicants from seeking a review of lawfulness, i.e. Article 131(3)(c) and Article 220h(3) and (4) of the CC, had not yet been directly examined by the Czech higher courts. The existing case law of the Constitutional Court (decisions nos. IV. ÚS 720/01, PI. ÚS 51/03, III. ÚS 527/04 and III. ÚS 84/05) consisted of unpublished resolutions whose normative force was “much less intensive” than that of that court's judgments. It could not therefore be argued that the relevant domestic case law was so settled as to prevent the applicants from defending their cause in proceedings before domestic courts.


55.  The Government pleaded non- <mask> and submitted that a civil action for damages under the Code of Obligations would have given the applicant the possibility of obtaining redress for the detriment complained of before the civil courts, which were not, in principle, bound by the findings of the criminal court as to the defendants’ guilt (see paragraph 52 above).


87.  The Government contended that the application should be declared inadmissible for non- <mask>. They submitted that the investigation into the disappearance of Murad Gelayev had not yet been completed. They further argued that it had been open to the applicants to lodge complaints with the courts about any acts or omissions of the investigating authorities, but that the applicants had not availed themselves of that remedy. They also argued that it had been open to the applicants to pursue civil claims but that they had failed to do so.


58.  The applicant disagreed. In respect of the exhaustion issue he argued that the Government had failed to refer to any domestic case-law demonstrating the effectiveness of challenging the expulsion order considering that he had already been expelled from Estonia. Indeed, during the proceedings before the Strasbourg Court, a first-instance administrative court had dismissed the applicant’s complaint against the expulsion order. As concerns the possibility of reapplying for a residence permit, the applicant noted that the Government had not specified what circumstances had changed in the meantime and argued that since his application had been rejected by the migration authorities and the courts, he was not required to make another similar application in order to comply with the requirement of  <mask> before applying to the Court.