62.  The applicant maintained that if it were not recognised as unlawful to dismiss a member of a vulnerable group on the ground that his or her colleagues refused to work with him or her because of prejudice, this would lead to wide-scale discrimination and exclusion: persons prejudiced against others of a particular  <mask>, ethnic background or sexual orientation could simply refuse to work with them and their employers would accordingly dismiss them. If the courts did not intervene, the prejudices of third parties would have the effect of debarring members of a vulnerable group from the majority of private-sector jobs and establishing a form of segregation between companies which employed persons from that group and those which did not.


39.  The Government refuted the allegations. They submitted that the applicant had failed to substantiate them or introduce any evidence in support of his claims that he had been subjected to treatment contrary to Article 3 of the Convention. The Government further stated that the applicant had been examined by a doctor on two occasions; at the beginning and at the end of his police custody, and the forensic reports indicated no t <mask> of ill-treatment on his body.


68.  The applicants submitted that they had been subjected to indirect discrimination. Firstly, there was an obvious difference in treatment between Danish‑born nationals and those who acquired Danish nationality later in life, when applying for family reunion, since persons who were born Danish citizens were exempt from the attachment requirement as soon as they had turned 28 years old, whereas persons who had acquired Danish citizenship at a later point in life, had to await 28 years before being exempted from the attachment requirement. That differential treatment also amounted to indirect discrimination on the basis of  <mask> or ethnic origin, since the majority of Danish-born persons would be ethnically Danish, while persons acquiring Danish nationality later in life would overwhelmingly be of other ethnic origins.


110.  The applicants challenged the Government's claim that the complaint should be declared inadmissible on account of a failure to exhaust the domestic remedies. They argued that an action under the Protection against Discrimination Act was not a remedy that they were required to exhaust because it was neither effective nor available. The applicants noted that the Court had repeatedly held that there is no requirement that remedies that are neither adequate nor effective should be used (see, mutatis mutandis, Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997‑VII, p. 2625, § 53) and that an individual must have clear, practical opportunity to challenge an act which is an interference with his or her rights (see De Geouffre de la Pradelle v. France, judgment of 16 December 1992, Series A no. 253‑B, p. 43, § 34 and Bellet v. France, judgment of 4 December 1995, Series A no. 333‑B, p. 42, § 36). In respect of the lack of availability of the remedy claimed by the Government, the applicants noted that the Protection against Discrimination Act entered into force close to four years after they had lodged their complaints with the Court. With regard to its effectiveness, they argued that an action for damages, be it based on anti-discrimination legislation or general tort law, could not remedy the substance of their complaint before the Court, which was that the authorities had failed to conduct an effective investigation into the death of their relative and to prosecute the perpetrators. Moreover, an action under the Act would be directed against the investigation authorities and would require the applicants to prove discriminatory treatment by them on the basis of  <mask>, of which there was no direct evidence. Thus, the applicants claimed that there was no clear link between the complaints they raised before the Court and the remedy suggested by the Government.


143.  The Government submitted that the settled case-law of the Court of Cassation pursued an aim in the public interest, that is to say the protection of the Th <mask> Muslim minority. Although the Court understands that Greece is bound by its international obligations concerning the protection of the Thrace Muslim minority, in the particular circumstances of the case, it doubts whether the impugned measure regarding the applicant’s inheritance rights was suited to achieve that aim. Be that as it may, it is not necessary for the Court to adopt a firm view on this issue because in any event the impugned measure was in any event not proportionate to the aim pursued.


93.  The applicant argued that she and her deceased husband had fulfilled all the conditions set out in the Civil Code regarding the drawing up of a public will. She added that both the Rodopi Court of First Instance, in its judgment of 1 June 2010 (see paragraph 12 above), and the Th <mask> Court of Appeal, in its judgment of 28 September 2011 (see paragraph 15 above), had ruled that the impugned will was valid and that the applicant had inherited her deceased husband’s property. She had not only had an expectation of becoming an heir in the future, but also a real and legitimate expectation of fully enjoying her right of ownership of the bequeathed property.


102.  The applicants alleged that the 28-year rule created in practice a difference in treatment between Danish-born nationals and those who acquired Danish nationality later in life. In addition, since the majority of Danish-born nationals would be ethnically Danish, while persons acquiring Danish nationality later in life would overwhelmingly be of different ethnic origins, that is other than Danish, the differential treatment also amounted to indirect discrimination on the basis of  <mask> or ethnic origin. The applicants referred, among other things, to the view expressed by the minority of the Supreme Court (see paragraph 30 above), which had found that the 28‑year rule amounted to an indirect difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin regarding the right to spousal reunion.


40.  The Government emphasised that there was no obligation to treat in the same manner those who had complied with the statutory formalities and those who, without being prevented from doing so, had not complied with them. The statutory requirement that there had to be a legal marital relationship for a survivor’s pension entitlement to be granted did not constitute discrimination on racial or ethnic grounds. The refusal to grant the said pension to the applicant stemmed solely from her free and voluntary decision not to observe the statutory formalities of marriage, which were not based on the fact of belonging to a particular  <mask>, nor on the traditions, habits or customs of a particular ethnic group to the detriment of others. Those formalities did not therefore constitute direct or indirect discrimination against the Roma community.


39.  The Government submitted, lastly, that the law of 2002 had considerably reinforced the prospects of securing a waiver of confidentiality. The applicant was free to make use of the provisions of the new legislation and to apply to the National Council for Access to Information about Personal Origins. The machinery established under the legislation satisfied the proportionality requirements contained in the Court's case-law, as the French State took into account the child's interest by regulating access to information about the child's origins while making it easier for the mother to waive confidentiality. Firstly, the mother was invited, as soon as she had given birth, to leave particulars of her identity in a sealed envelope together with non-identifying information, to which the child would have access if it wished. Secondly, considerable efforts were made to t <mask> the mother and to seek her consent to disclosure of her identity to the child. Professional help was also available, both to persons trying to discover their origins and to the natural parents. The Government submitted that a fair balance had therefore been struck between the competing interests.


33.  The applicant argues that the denial of citizenship prevented him from spending an unlimited time in Malta, which he could have devoted to fostering a relationship with his biological father. However, the Court notes that there currently exists no family life between the applicant and his father, who has evinced no wish or intention to acknowledge his son or to build or maintain a relationship with him. The Court finds that, in these circumstances, the denial of citizenship cannot be said to have acted as an impediment to establishing family life or otherwise to have had an impact on the applicant’s right to respect for family life. However, as the Court has observed above, even in the absence of family life, the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to emb <mask> aspects of a person’s social identity. While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.


52.  The applicants complained that the significantly lower pension entitlement of Gurkha soldiers who retired or served before 1 July 1997 amounted to differential treatment on the basis of nationality,  <mask> and age. They complained that the difference in treatment could not be justified and, as such, represented a violation of Article 14 read together with Article 1 of Protocol No. 1 to the Convention.


59.  The applicants complain that the non-enrolment of their Romani children for the 2004-2005 school year is due to inertia and to the competent authorities’ omissions. In addition, they see discrimination based on  <mask> and ethnicity in the fact that their children have had to attend special preparatory classes, held in separate rooms in the main building of the primary school of Aspropyrgos, where the other children from a comparable situation are welcomed. They invoke, in this respect, Articles 2 of Protocol No. 1 and 14 of the Convention, which read as follows:


109.  The Government submitted that the applicant had not been discriminated against in the instant case. The Court of Cassation had confirmed its established case-law and pursued the aim of protecting the Muslim minority in Greece by applying the special law of succession uniformly applicable to a specific category of property belonging to Greek Muslims. In doing so it had protected the specific nature of such property and of its owners, avoiding any infringement of the principle of equality. The settled case-law of the Court of Cassation pursued an aim of overriding public interest in a complex multidimensional area entailing, in particular, respect for and protection of the Th <mask> Muslim minority, a legitimate aim which was also connected with Greece’s fulfilment of its obligations under international law. It was unthinkable that that aim could be achieved in any other way, in view of the complexity of the many parameters involved, which transcended the individual case.


106.  The Government submitted that the applicant could not have harboured any “legitimate expectation” of being recognised as inheriting all the property bequeathed in the will or, consequently, any right of ownership over her deceased husband’s property. They pointed out that she had not presented any deed forming a basis for such a right, instead relying solely on her husband’s will as published by the Rodopi Court of First Instance. However, such publication did not constitute official validation of the will, which had been voidable and had in fact been deprived of legal effect by judgment no. 183/2015 of the Th <mask> Court of Appeal. Nor had she received from the court the inheritance certificate provided for in Article 1956 of the Civil Code because the existence of her right of inheritance had manifestly been in dispute. The only justification which she had put forward for her right of ownership had been the disputed will. She had therefore lawfully inherited only one-quarter of the property in issue, and not the whole estate.


88.  The applicant submitted that the Court of Cassation’s judgment of 7 October 2013 (see paragraph 18 above) had been final inasmuch as, under Article 562 § 1 of the Code of Civil Procedure (see paragraph 34 above), that court could not go back and re-examine the same grounds of appeal that she had already raised before it. Furthermore, she affirmed that she had been obliged to submit a fresh appeal on points of law in order to prepare her defence before the Turkish courts: the proceedings in Turkey had concerned the irrevocability (τελεσιδικία) of judgment no. 183/2015 of the Th <mask> Court of Appeal, and the deceased’s sisters had argued that the applicant had to lodge a fresh appeal with the Court of Cassation, a view shared by the Istanbul Civil Court of First Instance, which for that reason had adjourned its consideration of the case (see paragraph 31 above).


124.  The applicants maintained that they had been discriminated against in that because of their  <mask> or ethnic origin they had been treated less favourably than other children in a comparable situation without any objective and reasonable justification. They relied in that connection on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, which provide as follows:


195.  The applicant alleged discrimination, contrary to Article 14 of the Convention combined with Article 2, due to her husband’s origins, as only Turkish citizens of Kurdish origin regularly suffered unlawful killings. She averred that there was an administrative, discriminatory practice on grounds of  <mask> in the failure to investigate fully or prosecute the unlawful acts of the security forces, contrary to Article 14.


112.  The applicants argued that the investigation had collected testimony and forensic evidence that clearly established that the victim was attacked, severely beaten and killed because of his  <mask>. In particular, the assailants testified that the victim was picked, beaten and killed because, and only because, he was a Roma. Sufficient evidence was also collected that this was by no means an isolated event for the assailants and that they had periodically practiced racist violence of a similar nature. Thus, in spite of the abundant evidence of the attack, the beating to which the victim was subjected and his resulting death, the assailants and the person who stabbed him were never prosecuted. This failure by the Bulgarian authorities was, the applicants argued, an unambiguous violation of Article 14 taken in conjunction with the procedural aspect of Articles 2 and 3 of the Convention.


63.  The applicant complained of a violation of his right to freedom of speech. He maintained that as a serviceman he had been responsible for many years for giving legal advice to the Commander of the Armed Forces on the question of statutory penalties. His opinion on the statutory penalties the army imposed on soldiers often did not correspond to that of others at the Ministry of Defence. The applicant stated that he had made many proposals with the aim of improving, inter alia, servicemen’s procedural rights when the new Army Disciplinary Statute was being drafted. As his superiors and the State President had failed to take his proposals into account, the applicant had contacted the Kauno Diena daily and expressed his ideas to the press. The internal inquiry into his communication with the daily had been started the same day. Even though that inquiry had later been discontinued by the authorities’ acknowledgement that the applicant had not violated military discipline, the appeal to Kauno Diena and to the State President had had direct consequences for the applicant. He was dismissed from professional military service before the expiry of his contract. Most importantly, in order to avoid accusations of interference with freedom of expression, the authorities at the Ministry of Defence chose to dismiss him not on the ground that he had appealed to the media, but formally, on the basis of Article 38 § 1 (7) of LMS, thus leaving no official t <mask> of injustice. If that provision had been applied to others in the same manner, several hundred soldiers would have been dismissed from service, however none of them except the applicant had suffered the same consequences. The example of four soldiers (R.L., V.S., J.Š. and M.I.) he relied on during the administrative court proceedings confirmed that there were more soldiers who should have been dismissed from the army, but that this was not done. Lastly, he also challenged as misleading the two examples provided by the Government (see paragraphs 41 and 42 above).


95.  The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article 6 of the Convention. The violations of her rights included inter alia a failure to inform the applicant promptly, in a  <mask> that she understood, of the nature and cause of the accusation against her, to provide her with adequate time and facilities to find a lawyer of her own choosing and to prepare her defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial. Lastly, there was proof beyond reasonable doubt that the “court” which tried the applicant was neither impartial nor fair.


86.  The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article 6 of the Convention. The violations of his rights included inter alia a failure to inform the applicant promptly, in a  <mask> that he understood, of the nature and cause of the accusation against him, to provide him with adequate time and facilities to find a lawyer of his own choosing and to prepare his defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial.


99.  The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article 6 of the Convention. The violations of his rights included inter alia a failure to inform the applicant promptly, in a  <mask> that he understood, of the nature and cause of the accusation against him, to provide him with adequate time and facilities to find a lawyer of his own choosing and to prepare his defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial. Lastly, there was proof beyond reasonable doubt that the “court” which tried the applicant was neither impartial nor fair.


89.  The applicants insisted that the letter of 13 July 2009 was genuine. The fact that it was in Russian was not unusual since that  <mask> was widely used in the region. It bore a letterhead and a stamp. They provided a written statement from their representative Mr Stoyanov confirming that the letter was genuine. According to him, he had also visited Ivanivka police station on 7 November 2016 and the registrar there had confirmed to him that the 2009 letter had indeed been sent. The applicants also provided a new letter dated 21 October 2016 and signed by the deputy head of the investigation department at Ivanivka police station and confirming, in essence, that the 2009 letter was genuine.


117.  The applicants claimed that there had been no legal basis for assigning them to a Roma-only class. They argued that there had been no clear, accessible and foreseeable procedures regarding the assignment of pupils to special classes, either upon their enrolment or at subsequent stages in their education. In their view the tests employed as a part of the enrolment procedure were not designed to assess a child’s knowledge of the Croatian  <mask> but as an orientation point in determining the child’s psycho-physical status.


136.  The Government of the Slovak Republic recognised the need to address the learning difficulties of certain pupils, such as lack of proficiency in the  <mask> of instruction at schools. They found different compensatory measures adopted in that respect constructive. They referred to the margin of appreciation afforded to the States in the sphere of education and stressed that the States should not be prohibited from setting up separate classes at different types of school for children with difficulties, or from implementing special educational programmes to respond to special needs.


47.  The Government submitted that the banning measures provided for by the Law of 1881, as amended, and fleshed out by the subsequent case-law pursued a legitimate aim, namely the prevention of disorder, and were most frequently used against racist publications or publications inciting people to violence. The applicant association submitted that the provisions in question reflected discriminatory ideas based on the nationality of the authors of a publication and on  <mask>.


49.  The applicant association considered that it was the victim of a discriminatory measure in breach of Articles 14 and 10 of the Convention. In that connection, it stressed that the ban arising from the application of the decree of 6 March 1939 had indeed been discriminatory because the law itself was aimed at establishing this discrimination on grounds of nationality and  <mask>. It pointed out that the law had been adopted at a time when the general attitude towards foreigners had been hostile and reflected discriminatory views based on the assumption that foreigners were particularly dangerous and subversive ideas were necessarily foreign. The law was incompatible with a modern, progressive view of the enjoyment of fundamental rights in which equality between foreigners and nationals should be the rule.


100.  The applicants made several allegations that abusive and racist  <mask> was used against them by law-enforcement officers, and they maintain that sufficient inferences of a racist act can be drawn from them (see paragraphs 9, 10 and 11 above). The Court notes that the only documented use of the word “ţigani” by the authorities is in the mission statement concerning the police intervention to settle the brawl (see paragraph 23 above). Apart from the remarks made in the police mission statement, the allegation of use of abusive language by the authorities remains unsubstantiated. Indeed, the Court is aware that the main reason the allegations could not be substantiated is because the investigations did not consider them at all. However, this is a matter to be examined under the procedural aspects of Article 3 read in conjunction with Article 14 (see paragraphs 107 to 109 below).


138.  The applicants added that it would be helpful for the Grand Chamber to clarify the Court’s case-law by determining whether there was an objective and reasonable justification for the purposes of Article 14 for the difference in treatment in the present case and specifying the conclusions that should be drawn in the absence of a satisfactory explanation. Referring to, inter alia, the judgments in Timishev v. Russia (nos. 55762/00 and 55974/00, § 56, ECHR 2005‑XII) and Moldovan and Others v. Romania (no. 2) (nos. 41138/98 and 64320/01, § 140, 12 July 2005), they stated that where an applicant had established a difference in treatment the onus was on the respondent State to prove that it was justified. In the absence of a racially neutral explanation, it was legitimate to conclude that the difference in treatment was based on racial grounds. In the applicants’ submission, neither an inadequate command of the Czech  <mask>, nor poverty nor a different socio-economic status could constitute an objective and reasonable justification in their case. They denied that the disproportionately large number of Roma children in special schools could be explained by the results of intellectual capacity tests or justified by parental consent (see also paragraphs 141-42 below).


47.  The applicants considered that they had been discriminated against based on their  <mask> and ethnic (national) origin, and their association with a national minority, arguing that most of the Russian military pensioners were ethnic Russians or native speakers of Russian. They considered it inappropriate to compare Russian military pensioners with Estonian military pensioners and considered that the group they should properly be compared with was that of foreign military retirees of other countries. They argued that Russian military pensioners were the only group of persons forced to refuse a foreign pension in order to receive an Estonian pension for civil employment in Estonia.


44.  The Government contended that the State  <mask> Centre was the only authority empowered to determine the level of a candidate's knowledge of the State language. They submitted that the applicant had been able to exercise without hindrance her right to a remedy by means of an appeal to the Riga Regional Court. At the hearing on 31 August 1998 that court had made a detailed assessment of the evidence before it before holding that the measure complained of had complied with the Parliamentary Elections Act. As the Regional Court had looked into the merits of the applicant's complaints, there was no reason to consider that the remedy afforded in Latvian law was not an effective one for the purposes of Article 13 of the Convention.


123.  The Government firstly pointed out that the applicants had not been deprived of the right to attend school and receive education since they had all enrolled in primary school at the age of seven, like all children in Croatia, and had attended school until they reached the age of fifteen, after which schooling was no longer mandatory. The Government admitted that it was possible that the curriculum in Roma-only classes was reduced by up to 30% in relation to the regular, full curriculum. They argued that this was admissible under relevant domestic laws, and that such a possibility had not been reserved for Roma-only classes but was applied in respect of all primary school classes in Croatia, depending on the particular situation in a given class. Furthermore, the Roma-only classes were by no means “special” classes of any kind. They were ordinary classes in ordinary schools and were created only in schools where the proportion of Roma pupils was significant or where they represented a majority of pupils in a given generation, and then only in respect of those Roma pupils who also lacked adequate command of the Croatian  <mask>. In Podturen Primary School the number of Roma children in the lower grades varied from 33% to 36%. In 2001 the total number of pupils had been 463, of whom 47 were Roma. There had been only one Roma-only class, with 17 pupils, while the remaining 33 Roma pupils had attended mixed classes. Since 2003 there had been no Roma-only classes in that school. In Macinec Primary School the number of Roma children in the lower grades varied from 57% to 75%. Roma-only classes were formed in the lower grades and only exceptionally in the upper grades. All classes in the two final grades were mixed. In 2001 the total number of pupils had been 445, of whom 194 were Roma. There had been six Roma-only classes, with 142 pupils, while the remaining 52 Roma pupils had attended mixed classes.


129.  The Government submitted that the assessment of the applicants’ progress had been a part of the regular procedure for the evaluation of pupils, as in all other schools in Croatia. In the lower grades, evaluation in all subjects was done by the class teacher. A final mark was given at the end of each school year on the basis of all marks given during the school year. The basic elements for determining a mark were: knowledge and understanding of the subject matter, oral and written expression, applying acquired knowledge in practice and creative use of it, development of skills, participation in classes and development of a pupil’s psycho-physical abilities and capacities. In particular, elements for assessing knowledge of the Croatian  <mask> included reading and writing skills, oral and written expression, vocabulary and grammar, reading of books, and homework. A mark combined a number of factors, among which the most important for pupils in the lower grades were motivation and personal development in respect of each subject. The marks were given according to the individual capacity of each child. Therefore, the good marks given to some of the applicants after they had failed a grade or repeatedly failed a grade did not necessarily mean that they had a good command of the Croatian language, but that they had made progress.


107.  The applicant's representatives argued that the number of hours spent by them on the case was not excessive and was justified by its complexity and abundance of detail. The time was also justified by the repeated attempts to obtain access to the medical file and by the fact that all the correspondence with the Court was conducted in a foreign  <mask>.


74.  The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article 6 of the Convention. The violations of her rights included inter alia a failure to inform the applicant promptly, in a  <mask> that she understood, of the nature and cause of the accusation against her, to provide her with adequate time and facilities to find a lawyer of her own choosing and to prepare her defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial.


83.  The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article 6 of the Convention. The violations of her rights included inter alia a failure to inform the applicant promptly, in a  <mask> that she understood, of the nature and cause of the accusation against her, to provide her with adequate time and facilities to find a lawyer of her own choosing and to prepare her defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial.


115.  The applicants stressed, in particular, that the method used by the school authorities, allegedly to improve their  <mask> skills, had been inadequate. In their opinion the best method of integrating children with insufficient language proficiency would have been to place them in classes together with children who spoke the language of instruction because that, coupled with additional lessons in Croatian, would have been the easiest and fastest way for the applicants to learn Croatian. The applicants argued that it was critical to ensure that children who spoke a different language at home were included in groups that could provide good role models in terms of the majority language and created the best conditions for their language needs. They maintained that various research reports and expert bodies within the Council of Europe, the European Union and the United Nations recommended an integrative approach in the field of education of Roma children.


28.  The Government further submitted that the requirement of a command of the official  <mask> at the upper level did not impair the very essence of the right to stand as a candidate since anyone who wished to do so but did not have a sufficient command of Latvian could always reach the level required by improving his knowledge of the language. In that respect, the requirement was proportionate to the legitimate aim pursued.


32.  The applicant further criticised the fact that of the twenty-one candidates in possession of a certificate attesting to knowledge of Latvian at the “third level” only nine, including herself, had had to undergo this check, whereas the certificates of the other twelve candidates had been adjudged sufficient to establish their level of command of the  <mask>. As there was no basis in domestic law for that distinction, the applicant submitted that it confirmed the existence of an arbitrary attitude towards her.


29.  The applicant complained, firstly, that the national police had both verbally and physically abused her when they had stopped and questioned her. She alleged that she had been discriminated against on account of her skin colour and her gender, whereas other women with a “European phenotype” carrying on the same activity in the same area had not been approached by police. The applicant also complained about the  <mask> used by Palma de Mallorca investigating judge no. 9, who, in his decision of 10 June 2007, had referred to the “shameful spectacle of prostitution on the public highway”. Relying on the provisions of Article 3, the applicant alleged that the domestic courts’ investigation of the events had been inadequate.


124.  The Government submitted that the applicants had been assigned to Roma-only classes on the basis of section 2 of the Primary Education Act and the Rules on the number of pupils in regular and multi-grade classes. Under section 2 of the Primary Education Act the purpose of primary education was to ensure the continuing development of each pupil as a spiritual, physical, moral, intellectual and social being, according to his or her capabilities and affinities. In the Government’s view this could only be achieved in a permanent group of pupils of approximately the same age and knowledge. The same legal basis and the same criteria had been applied in respect of all other pupils. The applicants had been submitted to the same tests as all other children enrolling primary school. The applicants had been assigned to Roma-only classes on the basis of their insufficient knowledge of the Croatian  <mask> in order to address their special needs and to ensure an equal approach, which was possible only where the majority of them had the same initial knowledge of the Croatian language and psycho-physical readiness to attend primary school.


89.  The Government has submitted an unsigned, undated document pertaining to school life and educational activity in preparatory classes according to which the students of preparatory classes had been subjected to evaluation tests which had demonstrated that 90% among them showed weaknesses in writing and reading the Greek  <mask>. The Court notes, however, that the students concerned had been submitted to these tests after just having been distributed in preparatory classes, namely “at the time of their registration and their schooling”. Moreover, the Government gives no details as to the content of these tests and does not rely on any expert opinion to prove their adequacy (see on this point, D.H. and others v. the Czech Republic, cited above, § 200).


128.  The Government submitted school records showing that all the applicants, both in Podturen and Macinec Primary Schools, had been provided with additional lessons in the Croatian  <mask>. They had been able to participate in various extracurricular activities carried out in the Croatian language, some of which were particularly focused on the improvement of language skills (such as recitals and reading). Furthermore, in 2002 in Podturen Primary School and in 2003 in Macinec Primary School, Roma assistants were recruited to help children in Roma-only classes to improve their knowledge.


146.  The applicants maintained that they had never had any reason to doubt the lawfulness of the transactions whereby they or persons from whom they had inherited had become owners in good faith. The initial idea underlying section 7 of the Restitution Law had been to sanction those who had obtained property by abusing their position of power during the communist past. However, the open-ended  <mask> of section 7 and its interpretation by the courts had resulted in depriving individuals of their property for nothing more than a trivial administrative omission on the part of municipal clerks. Such a situation did not meet the Convention requirements for lawfulness as the applicable law opened the door to arbitrariness.


36.  The Government argued that the objective pursued by the application of the Names Act was to protect a child from unsuitable names and, further, to maintain a distinctive naming practice in a small country like Finland. The Court accepts that due regard has to be given to the child's interests. The protection of the child from an unsuitable name (such as ridiculous or whimsical names) is in the public interest. As to the aim of preserving a distinctive national naming practice, the Court has acknowledged that measures intended to protect a given  <mask> constitute a legitimate aim (see Mentzen (dec.), cited above). Therefore, the Court can accept that the preservation of national naming practice may be considered part and parcel of that aim and therefore in the public interest.


53.  The Government submitted that the applicant and Ms Sergeyeva had behaved in an aggressive and disorderly fashion at the police station, using foul  <mask> and obscene gestures. Ms Sergeyeva had also destroyed a glass lampshade and damaged the wiring. This had made it necessary to tie up both the applicant and Ms Sergeyeva. This had been done and they had remained bound for ten to fifteen minutes. Some force, in particular “hand‑to-hand fighting and hand twisting”, had been used to control the applicant. This was permitted by the Police Act. The applicants’ allegations of ill-treatment had been disproven by the domestic investigation, in particular the statements of their two acquaintances and of the medical expert (see paragraph 19 above). Accordingly, the Government submitted that the applicants had failed to prove “beyond reasonable doubt” that they had been ill-treated.


81.  The applicant association submitted that it had sustained considerable non-pecuniary damage because, for nine years, the national authorities had regarded it and presented it to the public as an apologist for terrorism. It assessed this damage at FRF 100,000. As to the damage arising from the excessive length of the proceedings, the association assessed this at FRF 100,000. Lastly, the fact that it had suffered discrimination on grounds of its national origin and  <mask> amounted to a specific grievance causing it non-pecuniary damage amounting to FRF 100,000.


98.  The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article 6 of the Convention. The violations of her rights included inter alia a failure to inform the applicant promptly, in a  <mask> that she understood, of the nature and cause of the accusation against her, to provide her with adequate time and facilities to find a lawyer of her own choosing and to prepare her defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial. Lastly, there was proof beyond reasonable doubt that the “court” which tried the applicant was neither impartial nor fair.


27.  The Government pointed out that the linguistic requirements complained of did not exist before 1995 and that as a result, at the first parliamentary elections after the State recovered its independence, in 1993, a number of persons who neither spoke nor understood Latvian had become MPs. As the persons concerned had been incapable of following the debates in Parliament and its committees, its work had been seriously hampered. That was why, in enacting the new electoral legislation, Parliament had decided to require candidates to prove that they had a command of the official  <mask>, in order to avoid similar practical difficulties in future. The provision complained of therefore pursued legitimate aims, namely meeting the need for electors to communicate with their elected representatives and for MPs to carry on normally the work that voters had entrusted to them.


118.  The applicants submitted that, apart from a general grading system, there had been no other specialised periodic assessment of their progress in acquiring an adequate command of the Croatian  <mask>. The grading scale was from one to five, and the lowest pass mark was two. They further argued that even when they had achieved a pass mark in the Croatian language they had not been transferred to a mixed class.


65.  The Government in their observations on admissibility and merits of the case requested that the Court declare the application inadmissible under Article 35 § 3 of the Convention as an abuse of the right of application on the grounds that the first applicant had concealed relevant information from the Court and had used offensive  <mask> in respect of the Representative of the Russian Federation to the European Court of Human Rights.


53.  The applicant community claimed 15,000 euros (EUR) in respect of non-pecuniary damage. It submitted that any award should compensate the hardship suffered by its Tagalog speaking members, who had been deprived of a minister speaking their  <mask>. In respect of pecuniary damage it claimed the amount of EUR 1,002.16 plus statutory interest, which corresponded to the inheritance and gift tax it had had to pay.


47.  The applicant submitted that the removal of her name from the list of candidates had had detrimental consequences for her economic situation. In that connection, she maintained that the negative publicity about her after she was struck out had plunged her into a state of distress and frustration which prevented her from carrying on her commercial activities normally and caused potential business associates to avoid her. In addition, the certificate in which the State  <mask> Centre had asserted that she did not have a command of Latvian at the upper level in fact meant that she was thenceforth unfit for the post of managing director, and this had led her to resign from her job. Since then, with the exception of half-time work here and there in a small private business, she had not managed to find appropriate employment. The applicant therefore asked the Court to award her 1,500 lati (LVL) for the loss she had sustained and for loss of earnings.


89.  The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article 6 of the Convention. The violations of her rights included inter alia a failure to inform the applicant promptly, in a  <mask> that she understood, of the nature and cause of the accusation against her, to provide her with adequate time and facilities to find a lawyer of her own choosing and to prepare her defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial. Lastly, there was proof beyond reasonable doubt that the “court” which tried the applicant was neither impartial nor fair.


48.  The Government submitted that there was no connection between the alleged violation and the amount claimed by the applicant. They observed in particular that she had decided to resign from her post in the company of her own free will. Even if she feared that the unfavourable report of the State  <mask> Centre might cause her prejudice in her professional life, she could always have asked for her linguistic competence to be re-examined, but had not done so.


28.  The Government accepted that the Frisians are a  <mask> within the meaning of the Framework Convention. They submitted that no legal distinction could be derived from the fact that in the German Government’s declaration upon signature of the Framework Convention (see above, paragraph 21) the Frisians were called an “ethnic group” whereas the Danes and Sorbs were recognised as “national minorities”. The use of different terms had been solely due to the Frisians’ explicit request on account of the negative connotations sometimes associated with the term “minority” at that time. However, referring to the fewer than 100 members of the applicant party, and the lack of evidence to support the party’s claim to representation, the Government disputed that the applicant party represented the Frisian people, not even the East Frisians in Lower Saxony.


47.  The applicants considered that they had been discriminated against based on their language and ethnic (national) origin, and their association with a  <mask>, arguing that most of the Russian military pensioners were ethnic Russians or native speakers of Russian. They considered it inappropriate to compare Russian military pensioners with Estonian military pensioners and considered that the group they should properly be compared with was that of foreign military retirees of other countries. They argued that Russian military pensioners were the only group of persons forced to refuse a foreign pension in order to receive an Estonian pension for civil employment in Estonia.


30.  The applicant complains of discrimination under Article 14. He alleges that his rights under Article 6 § 1 have been subject to discrimination on the grounds of religion, political opinion or association with a  <mask>. He further complains that in breach of Article 13, he has not had any effective remedy before a national authority in respect of his alleged violations of his rights and freedoms.


36.  The applicants further argued that Ilinden was not directed against the sovereignty or the territorial integrity of Bulgaria, or against the unity of the nation. The fact that its articles of association spoke of continuation of the “national liberation struggle” could not change this conclusion. The organisation had been founded as an educational organisation which would attain its goals exclusively through peaceful means. Opposing state genocide and terror was not illegal. On the contrary, it was a national and an international priority. Therefore an organisation whose aim was to resist the trampling of the rights of a  <mask> and to seek to protect its interests could not be illegal.


129.  The Government denied that there existed a structural problem concerning refusal of residence permits to HIV-positive non-nationals or declaring their presence undesirable in Russia. They firstly emphasised that, to this day, the Kiyutin judgment had remained the only judgment finding a violation of a foreign national’s right to respect for family life and of the  <mask>. The Government relied on a selection of approximately sixty cases in which the Russian courts granted challenges by HIV-positive non-nationals against the Federal Migration Service’s and Consumer Protection Authority’s decisions refusing them residence permits or declaring their presence undesirable. The courts had taken into account the individual circumstances of each case, including the duration of the non‑national’s residence, the lawfully contracted marriage, the ages of any children, the absence of housing or family links in the country of origin, and so on.


41.  The Government submitted that the immunity in question, being attached to a function provided for in the Constitution, did not breach either the principle of the equality of citizens before the law or the  <mask>. Its purpose was neither to create a “privileged” class nor to allow parliamentarians to make arbitrary use of their privileges. On the contrary, it pursued the legitimate aim of allowing Parliament to debate any issue relevant to public life freely and openly without its members having to fear persecution or possible legal consequences.


67.  The applicants also submitted that the Convention prohibits States from attaching further negative effects to prior human-rights violations also where those violations have not been challenged, so the fact that they had not challenged their convictions before the Court was therefore irrelevant. Sexual autonomy and  <mask> on the grounds of sexual orientation were general principles of European law, and the Government were therefore under an obligation to provide sound reasons to justify the necessity of continuing the negative consequences of their convictions under article 209 of the Criminal Code. Since they had failed to do so, there had been a breach of Article 14 read in conjunction with Article 8 of the Convention.


35.  The applicant claimed that by depriving him of the possibility of joining the farmers' scheme solely on account of his foreign nationality, despite the fact that he met the other statutory conditions, the authorities had violated the  <mask>. As a result he was effectively deprived of social security cover in the event of sickness, occupational injury and invalidity. Furthermore, he could not continue making contributions towards his retirement pension, which he had paid for many years when affiliated to the general social security scheme. In this connection, the applicant had a reasonable expectation of being admitted to the farmers' scheme. That position was supported by the Ombudsman's opinion in his case.


32.  The applicant argued that, following the constitutional breakdown in 1964, the Cypriot government had passed different laws upholding the human rights of citizens. However, these laws had been conceived for the Greek Cypriots, no provisions being adopted safeguarding the rights of the Turkish Cypriots. Consequently, more than a thousand Turkish Cypriots, including the applicant, who were living in the free area, had not been able to exercise their fundamental right to vote or stand as candidates in parliamentary elections since 1964. Although the Cypriot authorities had been aware of the disenfranchisement of that part of the population, they had not taken measures to deal with the situation. Furthermore, the applicant submitted that the Supreme Court had not applied the law of necessity in order to resolve his case, as it had done in many other similar instances, because he was a Turkish Cypriot. Thus, he claimed that he had been deprived of his right to vote solely on the basis of his  <mask>.


69.  The applicants repeated their submission before the Chamber that for Danish citizens applying for family reunion with their non-Danish spouse living abroad, the 28-year rule did not pursue a legitimate aim because, allegedly, it had been introduced to target Danish citizens of non-Danish ethnic or  <mask>. The applicants thus called into question the argument that the aim had been to assist the integration of newcomers or to control immigration. They also disagreed with the argument that the aim related to the economic well-being of the country. In their view, spousal family reunion had no financial implication for the State, because the resident spouse was obliged to provide for the other spouse.


81.  The applicant association submitted that it had sustained considerable non-pecuniary damage because, for nine years, the national authorities had regarded it and presented it to the public as an apologist for terrorism. It assessed this damage at FRF 100,000. As to the damage arising from the excessive length of the proceedings, the association assessed this at FRF 100,000. Lastly, the fact that it had suffered discrimination on grounds of its  <mask> and language amounted to a specific grievance causing it non-pecuniary damage amounting to FRF 100,000.


161.  The applicant submitted that her husband was killed because he was a Kurd and, although not politically involved, he was sympathetic to the democratic demands of the Kurds. He was thus, contrary to the prohibition contained in Article 14 of the Convention, a victim of discrimination on grounds of  <mask> in relation to the exercise of his right to life as protected by Article 2. The applicant also maintained that she too had been discriminated against in violation of Article 14, which reads:


111.  The applicant further argued that he was discriminated against as regards all of the above matters on the grounds of his  <mask>, birth or “other status”. He was discriminated against as compared to other minors (he was not placed in specialised residential institution aimed at the proper care of minors), as compared to adults (as no adult could have been detained in a penal institution in such circumstances) and as compared to other citizens (as he was detained in a penal institution without having been charged or convicted of a criminal offence).


180.  The Government averred that there was no gender discrimination in the instant case, since the violence in question was mutual. Furthermore, it cannot be claimed that there was institutionalised discrimination resulting from the criminal or family laws or from judicial and administrative practice. Nor could it be argued that the domestic law contained any formal and explicit distinction between men and women. It had not been proven that the domestic authorities had not protected the  <mask> of the applicant because she was a woman.


84.  The applicant argued that, according to the Court’s case-law, the positive obligations under Article 2 of the Convention imposed a primary duty on the State to secure the  <mask> 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.


40.  The applicant complained that the State authorities were responsible for the accident of 30 November 1998 and had violated her daughter's  <mask>. She also complained that the State authorities had failed to investigate the accident of 30 November 1998 effectively and to punish those responsible for it. In this respect she relied on Article 2 of the Convention which reads as follows:


61.  The Government relied on the information provided by the Prosecutor General’s Office and argued that the investigation had not obtained any evidence that Adam Ayubov was dead, or that representatives of the federal military or security agencies had been involved in his abduction or alleged killing. They contested the oral evidence given by witnesses during interviews by the investigating authorities as unreliable, stating that witness statements had been controversial and that the investigating authorities had checked the information given by the witnesses by sending queries to law-enforcement agencies and power structures, but that information had not been confirmed. The Government argued therefore that there were no grounds to claim that Adam Ayubov’s  <mask> secured by Article 2 of the Convention had been breached.


93.  The Government conceded that there had been a violation of Mr Bashir Velkhiyev’s  <mask>, as confirmed by the evidence in criminal case no. 04560079. At the same time they argued that the investigation conducted into his death had been effective and satisfied the requirements of Article 2 of the Convention, as demonstrated by the number of steps taken to establish who had been responsible for the crime.


334.  The applicants sought various amounts for non-pecuniary damage, stating that they had suffered severe emotional distress, anxiety and trauma as a result of a violation of the  <mask> of their close relatives and their own right to life, together with the damage inflicted on their property and on account of the indifference demonstrated by the Russian authorities during the investigation into these events.


75.  The applicant complained under Article 2 of the Convention that the prison authorities had failed to protect her son’s  <mask> by taking the necessary measures, in particular by protecting him from attacks by other prisoners, as well as from the danger he posed to himself. She submitted that the prison staff had been aware of the applicant’s son’s suicidal tendencies and that she had also warned them regularly about his worsening mental state. In addition, the applicant complained that no investigative measures had been taken as regards the responsibility of the prison staff for the death of her son.


50.  The Government highlighted that “the situation that existed in Chechnya at the relevant time called for exceptional measures on behalf of the State in order to regain control over the Republic and to suppress the illegal armed insurgency. These measures could presumably include employment of military aviation equipped with heavy combat weapons” (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 178, 24 February 2005). However, in the case at hand there had been no proper examination of the question of the application of lethal force. They therefore accepted that there had been a breach of the applicants’ and their deceased relatives’  <mask>, in both its substantive and procedural aspects.


161.  The applicant submitted that her husband was killed because he was a Kurd and, although not politically involved, he was sympathetic to the democratic demands of the Kurds. He was thus, contrary to the prohibition contained in Article 14 of the Convention, a victim of discrimination on grounds of national origin in relation to the exercise of his  <mask> as protected by Article 2. The applicant also maintained that she too had been discriminated against in violation of Article 14, which reads:


46.  The applicants replied that they had not received the amounts which the police officers had been ordered to pay in damages. Moreover, the officers' penalties had been inadequate in view of the extreme gravity of their offence, which consisted of an unprovoked beating resulting in death. The investigation of this beating, after initially resulting in a conclusion on 12 May 1995 that the accused should be committed to trial, had then been halted and renewed only on 12 January 1998, after the applicants' numerous complaints to all possible bodies. The criminal proceedings had lasted almost eight years overall and, had it not been for the applicants' persistent complaints, would probably never have resulted in a trial. The State had thus not effectively enforced the laws preserving the  <mask> and the prohibition of ill‑treatment. The sentence imposed on the police officers was not sufficiently effective and did not amount to full redress for the ill‑treatment and death of Mr Nikolov.


116.  The Government did not dispute the fact of the attack on the applicant. They submitted that between 10 December 1999 and 10 February 2000 the Staropromyslovskiy district of Grozny had been occupied by both federal forces and illegal armed groups and that it was therefore impossible to identify the perpetrators of the attack. The applicant's  <mask> had not been breached by representatives of the State.


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  <mask>, but safeguarded it. The positive obligations 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.


35.  The Government submitted that the “TRNC” authorities had been fully justified under paragraph 2 of Article 2 of the Convention in taking all necessary precautions and using necessary force in order to avert the danger and protect the lives of others. An assembly of 150 persons throwing missiles at a patrol of soldiers to the point that they risked serious injury had been considered a “riot” by the Commission in the case of Stewart v. the United Kingdom (no. 10044/82, Commission decision of 10 July 1984, Decisions and Reports (DR) 39, p. 162). In that case, the Commission had also pointed out that the authorities had no obligation to retreat when quelling a riot. In any event, as no death had occurred in the present case, there could be no question of a violation of Article 2. The positive obligations arising from this provision entailed protecting “by law” the  <mask>, and there was no allegation that the laws of the “TRNC” failed to afford such protection.


316.  The applicants' representatives alleged that there had been a violation of the  <mask> in respect of Mr Aziev. They considered that the Georgian authorities had exposed the extradited applicants to the risks of imposition of the death penalty, extra-judicial execution and ill-treatment in Russia in breach of the requirements resulting from Articles 2 and 3 of the Convention. They also alleged that, were the other applicants to be handed over to the Russian authorities, they would be exposed to the same fate. In addition, they claimed that, during the night of 3 to 4 October 2002, the applicants had been subjected to treatment that was contrary to Article 3 of the Convention.


111.  The applicants Mr and Mrs Vlase alleged that their son, Nicuşor Vlase, was killed at the end of the December 1989 following the use of lethal force by State agents. They criticised the relevant authorities for failing to conduct an effective, impartial and thorough investigation, capable of leading to the identification and punishment of those responsible. In that respect, they submitted that the criminal investigation concerning their allegations of an infringement of the  <mask> was still pending, and complained about the Romanian authorities’ lack of diligence. They also complained about the draft amnesty law in respect of acts imputed to servicemen in the Armed Forces which occurred at the time of the events of December 1989, transmitted on 18 July 2008 to the military prosecuting authorities at the High Court of Cassation and Justice, for consultation, by the Legal Directorate at the Ministry of Defence. They relied on Article 2 of the Convention, which provides:


37.  The Government acknowledged a violation of the substantive aspect of Article 2 of the Convention, stating that “a violation of Shamkhan Abubakarov and Badrudi Abubakarov’s  <mask> guaranteed by Article 2 of the Convention is confirmed by the criminal case material”. They further contended that the investigation into the deaths of the applicants’ husbands complied with the Convention requirement for an effective investigation.


105.  The applicant alleged that it was established beyond reasonable doubt that the State security forces had abducted her husband, who had met his death at the hands of the State agents. She maintained that it was also established beyond reasonable doubt that the respondent Government had failed to protect Talat Türkoğlu's  <mask>, in that they had failed to conduct an independent, effective and thorough investigation into his disappearance and subsequent death in suspicious circumstances. She submits in this connection that, although an investigation was opened at her request, it has remained inadequate. In her opinion, no serious investigations were ever conducted in Turkey in respect of unknown perpetrator killings of political opponents or of the disappearance of such persons.


83.  The Government claimed that the doctors’ allegedly inadequate treatment of the applicant’s daughter could not amount to a breach of the State’s duty to protect the  <mask>. They maintained that the applicant’s daughter received treatment in various specialised hospitals and underwent various medical tests. In their opinion it would have been difficult to conclude that the quality and promptness of the medical care provided to the applicant’s daughter during her stay in hospitals put her health and life in danger.


105.  The applicant submitted that the prolonged distress and anguish caused by his son's disappearance over the past eleven years amounted to a violation of his right to respect for family life within the meaning of Article 8 of the Convention. According to the applicant, this breach was the direct result of the respondent State's failure to protect his son's  <mask>, liberty and security pursuant to Articles 2 and 5 of the Convention.


90.  The applicants complained of a violation of the  <mask> in respect of their close relatives, Ilyas and Isa Yansuyev. The applicants submitted that the circumstances of their disappearance and the long period during which it had not been possible to establish their whereabouts indicated that Ilyas and Isa Yansuyev had been killed by representatives of the federal forces. The applicants also complained that no effective investigation had been conducted into their relatives' disappearance. They relied on Article 2 of the Convention, which reads as follows:


91.  The Government relied on the information provided by the Prosecutor General’s Office and argued that the Russian authorities were not responsible for the actions of the unidentified persons who had abducted Artur Bersunkayev and that the investigation had not obtained any evidence to the effect that representatives of the federal power structures had been involved in the imputed offence. They submitted to that end that members of illegal armed formations within the territory of the Chechen Republic resorted to various methods of concealing the fact of their participation in such groups and that of recruitment of new members, such as “deliberate dissemination of false information concerning their disappearances from the places of their permanent residence and implication of the federal forces in such disappearances”. Moreover, the aforementioned false information was also used by “representatives of international terrorist organisations, leaders of illegal armed groups and their emissaries abroad for the purpose of propaganda against the State agencies of Russia”. The Government argued therefore that there were no grounds to claim that Artur Bersunkayev’s  <mask> secured by Article 2 of the Convention had been breached.


45.  The Government therefore maintained that, once it was accepted that States were free to choose other forms of liability for less serious violations of the  <mask> and that a criminal penalty was not the only form of liability possible (that was the position under Italian law), the reasons why a criminal penalty was not imposed in a particular case became irrelevant for the purposes of Article 2. Furthermore, the doctor responsible for the death of the applicant's child had been held liable in civil proceedings, and could as a result also be subject to disciplinary action.


100.  The applicants submitted that the refusal to allow them to use the product had been in breach of their  <mask>. They highlighted the similarities and differences between their case and previous cases in which the Court had dealt with complaints under Article 2 of the Convention in relation to health care. They argued that, properly framed, the issue in their case was whether the State had taken appropriate steps to safeguard the lives of those under its jurisdiction. In their view it had not, because the rules governing “compassionate use” were not adequate, in that they did not allow the authorities to have regard to specific circumstances. All individuals in Bulgaria who, like the applicants, had cancer which was terminal and which was no longer responding to conventional treatment, were being denied access to experimental medicinal products. In the applicants’ case, this was not justified by lack of budgetary resources, because the company which had developed the product was willing to provide it free of charge. There were indications that the condition of some cancer patients had improved as a result of its use. This had given the applicants hope that it might help them as well.


62.  The applicants alleged that the national authorities had not protected the  <mask> of the first applicant as a result of their failure to give sufficient training to the health personnel concerned and to supervise and inspect their work. In this connection, they noted that the health personnel at the Kızılay had shown gross negligence by not requiring the blood donors to fill out questionnaires and by not screening their blood with sufficient care. The health personnel at the hospital, where the blood transfusion had been conducted, also failed to do the necessary tests on the blood given to the first applicant, considering that the test in question was very expensive.


11.  The applicant complained that the existing situation infringed his  <mask> under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy a certain standard of living (Wasilewski v. Poland, no. 32734/96, 20.4.1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.


37.  The Government acknowledged that Article 201 of the Statute of Garrison and Sentry Service, in force at the material time, had not indicated that the use of force had to be absolutely necessary. However, that legal norm had indicated that deadly force could only be used in specific cases and as a measure of last resort. The Government observed that the wording of Article 201 of the Statute had afforded the same level of protection of the  <mask> as Article 2 of the Convention. They further noted that in assessing the circumstances of the case the Court should not overlook the fact that the events in question had occurred in the army, a very specific setting characterised by extreme limitations on the rights and freedoms of individuals performing military service. The specific responsibilities of servicemen to respect discipline and the regulations of the Statute of Garrison and Sentry Service, as well as the fact that military service was inherently characterised by unquestionable compliance with orders of higher-ranking officers, had justified the use of deadly force against a serviceman to prevent his escape.


59.  The applicant considered that the authorities had failed in their positive obligation to protect her son’s  <mask>, in breach of the State’s general duty to provide the necessary medical care, since it managed and/or controlled the entirety of the health protection system. It seemed to her entirely abnormal that a newborn baby requiring emergency medical care could not be treated by the hospitals as a result of a lack of resources. She concluded therefore that the authorities were responsible for Tolga’s death, in that they had not provided him with the urgent treatment required by his condition.


53.  The Government pointed out that the Commission had considered whether it was appropriate to recognise the foetus as having the  <mask> subject to certain restrictions relating to the protection of the mother’s life and health (see X. v. the United Kingdom, cited above). They submitted that such a limitation would not allow recourse to abortion for therapeutic, moral or social reasons, which at the time when the text of the Convention was being negotiated had nonetheless already been authorised by the legislation of a number of countries. It would amount to penalising States that had opted for the right to abortion as an expression and application of a woman’s autonomy over her own body and her right to control her maternity. The States Parties had not intended to confer on the expression “right to life” a meaning that extended to the foetus and was manifestly contrary to their domestic legislation.


28.  The applicants also drew the Court's attention to the Ministry of the Interior's information, according to which a total of 4,938 village guards had committed offences in the past eighteen years and that 1,215 of these offences had been against the person. In the opinion of the applicants, the respondent Government had failed to prevent village guards from committing similar offences in the present case and had thus been in breach of their obligation to protect the  <mask> of their two deceased relatives, as well as the life-threatening injuries caused to the two surviving applicants, Yusuf Acar and Süleyman Acar.


77.  The applicants argued that there had been a violation of the  <mask> in respect of their deceased relatives. They further submitted that the investigation into the murders had been ineffective – both prior to the resumption of proceedings in 2005 and after that date. The prosecutor’s office had failed to address numerous omissions noted by the district court. It had also failed to ensure the necessary level of public scrutiny by not informing the applicants of the most important developments in the proceedings.


132.  The applicant and two others indeed filed an indictment on 22 April 2003 against certain executives of Grmeč and JPL, as well as against the former Deputy Head of the Intelligence Service, for failing to take measures that had been required of them to prevent the lives of the applicant’s son and others from being avoidably put at risk or to mitigate casualties. Given that the criminal trial is still under way, the issue to be assessed is not whether the judicial authorities, as the guardians of the laws laid down to protect lives, were determined to sanction those responsible, if appropriate (see Öneryıldız, cited above, §§ 112 and 115), but whether the judicial authorities proceed with exemplary diligence and promptness. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating an alleged infringements of the  <mask> may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Hugh Jordan, cited above, §§ 108 and 136-140; McCaughey, cited above, § 130; and Hemsworth, cited above, § 69).


80.  The applicant complained that the authorities had failed to protect the  <mask> of her son in violation of Article 2 of the Convention. In particular, she argued that the hospital had been negligent in so far as it had not supervised him sufficiently, had not installed adequate security fencing to prevent him from leaving the grounds and had not provided for an adequate emergency procedure. Under Article 6 § 1 of the Convention she complained about the length of the civil proceedings she had brought against the hospital.


139.  The applicants submitted that the administrative authorities’ decision to issue a permit authorising a gold mine to use the cyanidation process and these authorities’ refusal to comply with the decisions of the administrative courts constituted violations, respectively, of their  <mask> and their right to an effective remedy. They relied on Articles 2 and 13 of the Convention.


140.  The Government did not dispute the fact that the applicants' relatives had died. They argued that the investigation “had not obtained data to show that the killings of [the first applicant's relatives] had occurred with the knowledge or on the orders of the representatives of the federal power structures of the Russian Federation”. In respect of the relatives of the other applicants, the Government stated that their deaths had occurred as a result of the violent actions of unidentified persons. Until the investigation had established the culprits, it could not be said that their  <mask> had been infringed by the actions of military servicemen or other State agents.


71.  The Government claimed that there had been no violation of Mr Tarariyev's  <mask>. His death had not been a consequence of inadequate conditions of detention or medical assistance, but the outcome of an unpredictable development of the illness he had acquired prior to his placement in custody. The investigators and domestic courts had thoroughly examined the circumstances of Mr Tarariyev's death, assessed a substantial body of evidence, commissioned a medical examination, interviewed witnesses and found no fault on the part of the medical staff or other persons. The Government further submitted that the applicant's civil claim for non-pecuniary damages had been dismissed because Mr Da. had been acquitted and because the Russian law of tort did not provide for liability without fault in such a situation.


43.  The applicants complained under Article 2 of the Convention that the use of force by the security forces against Murat Bektaş and Erdinç Arslan had been disproportionate and had resulted in their unlawful killing. They further maintained under the same head that the investigation and the criminal trial had been flawed and ineffective. They contended in this connection that the acquittal of Nurettin Bülbül, Fevzi Mustan and Muammer Topaç, and the deferral of the execution of the sentences imposed on Nurettin Bülbül, Haydar Erol, Eyüp Yalçınkaya and Ali Erdurucan, had undermined the deterrent role of the judicial system in preventing violations of the  <mask>.


114.  The Government considered that the applicants failed to exhaust domestic remedies as regards their Article 2 complaints because they neither challenged the decision dispensing with a criminal investigation into the natural disaster, nor invoked their  <mask> in their civil claims for damages. Concerning the decision dispensing with criminal proceedings, the applicants deny any knowledge that such decision has been adopted. Indeed, they were not involved in any such proceedings and it is unclear in what capacity under domestic law they would have been able to challenge the decision referred to by the Government. Unlike the first applicant, they had to prove their victim status before they could commence criminal proceedings. As to the alleged failure to invoke their right to life in the civil proceedings, the Court observes that their statement of claim was formulated in terms that embraced the substance of this guarantee. It therefore considers this part of the Government's preliminary objection also unfounded.


177.  The applicants complained that there had been a violation of Article 2 of the Convention by both the Cypriot and Turkish (including the “TRNC”) authorities on account of their failure to conduct an effective investigation into the deaths of their relatives, Elmas, Zerrin and Eylül Güzelyurtlu. They pointed to the failure of the respondent States to cooperate in the investigation of the murders and bring the suspects to justice. The applicants contended that where there had been a systemic failure to investigate certain killings after the perpetrators had escaped by crossing a dividing line; the substantive requirement of Article 2 had also been violated, as the domestic laws in place had not protected the  <mask>.


161.  The applicants disagreed. Reiterating their factual account (see paragraphs 10 and 12-15 above), they submitted that their complaints concerning the improper handling of their relatives’ remains were closely related to the complaints concerning the breach of their  <mask>. The applicants had participated in criminal proceedings concerning the investigation of the circumstances of their relatives’ deaths. It would have been onerous to impose on them in their situation an obligation to institute any further proceedings. In any event, they did not believe that there was any effective hope for them to obtain redress in this situation of ill-treatment, which was continuous, as fragments of their relatives’ bodies, including the head of Mrs Mykhayliv, had never been located or restored to them.


61.  The applicant maintained that her daughter had been killed by the agents of the State who had carried out a security operation at her home. She referred to her own statements describing the operation. She insisted that the armed police officers had stormed her house without a warning and fired shots in the rooms, as a result of which her daughter had been killed. The documents from the domestic investigation were inconclusive and did not rule out her version of the events. She further maintained that the positive obligation to protect the  <mask> had been violated, since the special operation had been planned and executed without proper consideration for the safety of the inhabitants of the house. Finally, the applicant insisted that no proper investigation into the death had taken place, since the only proceedings instituted by the district prosecutor's office had been aimed at solving the crimes allegedly committed by S.Ya. and R.Yu.


52.  The applicants claimed that Article 2 of the Convention covered not only incidents which resulted in the death of the victim, but also cases where the victim suffered life-threatening, serious injury. Bearing in mind that the first applicant's disease was not curable, the State was responsible for violation of the  <mask> of the first applicant. They thus claimed that Article 2 of the Convention applied in the present case.


103.  The Government stated that, taking into account the applicants’ submissions and witness statements on the circumstances surrounding the incident of 12 September 1999, “it should be acknowledged” that the use of lethal force resulting in the death of five residents of Kogi (Runnoye) – Borambike Esmukhambetova, Elmurat Esmukhambetov, Eldar Esmukhambetov, Melikhan Abdurakhmanova and Bota Kartakayeva – had constituted an infringement of Article 2 of the Convention in so far as that Article secured the  <mask> of the relevant applicants’ deceased relatives. They further submitted that, having acknowledged that infringement, the national authorities had paid compensation in that respect to the first three applicants in the amount of 60,000 Russian roubles (RUB, approximately EUR 1,500) to the first applicant and RUB 20,000 (approximately EUR 500) to each of the second and third applicants.


94.  The Government argued that the investigation had not obtained any evidence to the effect that representatives of the Russian federal forces had been involved in the abduction of Abu Khasuyev. They argued therefore that there were no grounds to claim that Abu Khasuyev’s  <mask>, guaranteed by Article 2 of the Convention, had been breached by representatives of the Russian power structures. The Government further claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.


40.  The applicant maintained that her husband must be presumed dead since he had not been heard from since his disappearance. She pointed out that the Court had already dealt with a significant number of cases of disappearances in south-east and eastern Turkey and had found violations of Article 2. Referring to the Court's case law, she stated that the Government had failed to protect the  <mask> of her husband and that the investigation conducted into the circumstances surrounding his disappearance had been inadequate.


66.  The Government relied on the information provided by the Prosecutor General’s Office and contended that the investigation had not obtained any evidence to the effect that Isa Zaurbekov was dead, or that representatives of the federal power structures had been involved in his abduction or alleged killing. They expressed doubts that any reliance could be placed on the eyewitness statement by Ms M.-M., submitted by the applicants (see paragraph 13 above), given that this statement contradicted the information given by Ms M.-M. to the investigating authorities during her interview (see paragraph 45 above). The Government insisted that until the circumstances of Isa Zaurbekov’s abduction, and the identity of the persons involved, had been established, there were no grounds to claim that his  <mask> secured by Article 2 of the Convention had been breached by the State.


105.  The Government contended that the complaint concerning the alleged violation of the  <mask> guaranteed by Article 2 should be declared inadmissible for non-exhaustion of domestic remedies. 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.


46.  The applicant complained of a violation of the  <mask> in respect of her son, Mr Khanpasha Dzhabrailov. She submitted that the circumstances of his disappearance and the long period during which it had not been possible to establish his whereabouts indicated that Mr Khanpasha Dzhabrailov had been killed by representatives of the federal forces. The applicant also complained that no effective investigation had been conducted into her son’s disappearance. She relied on Article 2 of the Convention, which reads as follows:


46.  The Government maintained that the authorities had complied with their positive obligation under Article 2 of the Convention to secure the applicant’s son’s  <mask> and that they could not be held responsible for his death, which had been a tragic incident. They referred to legal regulations which had been put in place in order to ensure the safety of patients in sobering-up centres. The manner and circumstances in which means of physical coercion could be applied to patients were also specified by domestic law. The employees of the Tychy Sobering-Up Centre had received relevant training, the centre was properly equipped and there was a continuous presence of a doctor. No evidence of intentional killing had so far been disclosed. Since the criminal proceedings against four employees were still pending before the domestic courts it would be premature to assess the conduct of the employees of the centre during the events in question.


10.  The applicant complained that the existing situation infringed his  <mask> under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland, no. 32734/96, 20 April 1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.


94.  The Government contended that the domestic investigation had obtained no evidence that Mr Rustam Kagirov was dead or that any State agents had been involved in his disappearance. They denied the allegation of the failure to protect the  <mask> as the domestic authorities had no information of a known risk to the life of Mr Rustam Kagirov and that he had not been in the hands of State agents during or after the abduction. The Government claimed that the investigation into the abduction met the Convention requirement of effectiveness. They stressed that the applicant failed to exhaust domestic remedies as he had been granted victim status in the criminal case and therefore could have appealed the investigators’ decisions in domestic courts.


156.  The Government reiterated that the Chamber judgment had been insufficiently reasoned and that it had departed from the Court’s existing line of case-law in an area of fundamental importance, thereby creating legal uncertainty for the State. They argued that in finding a violation of the  <mask> under the substantive limb of Article 2, in the absence of medical negligence, of any established causal link with the patient’s death, or of any failure to provide treatment by refusing to admit or attend to the patient, but simply on the basis of a possible lack of coordination between hospital services that had no consequences for the value protected by the rule, the Chamber had acted as a fourth instance and had expanded the Court’s area of competence to include the assessment in abstracto of the functioning of domestic health-care services. This should not be its role.


52.  The applicant complained that his wife, Sariye Yılmaz, was killed by artillery shells fired by the security forces. He alleged that no effective investigation had been carried out into her death. He also claimed that the State had failed to comply with its obligation to protect her  <mask>. He invoked Article 2 of the Convention, which provides:


79.  The applicant alleged that the failure by the authorities to comply with their obligation to protect her life and that of her son, who was killed by her husband, had resulted in a violation of Article 2 of the Convention. She submitted in that regard that the Italian authorities had failed to protect her son’s  <mask> and that they had been negligent before the repeated violence, threats and injuries which she herself had endured.


61.  The applicant in the instant case neither challenges the sufficiency of the regulatory framework in question, nor alleges that the State authorities failed in their obligation to monitor compliance with it or were in any other way responsible for the accident. She rather complains of their failure to establish, by way of an effective criminal investigation, the circumstances of her husband’s death, including the responsibility of those who had knowingly infringed the terms of the relevant regulations and had thus disregarded her husband’s  <mask>.


15.  The applicant complained that the existing situation infringed his  <mask> under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland, no. 32734/96, 20.4.1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.


50.  The Government submit that there was no failure in any positive obligation imposed by Article 2 to protect the  <mask> of Christopher Edwards. The information available to the prison authorities in the period leading up to his death, when viewed objectively and without the benefit of hindsight, demonstrated that there was no real or immediate risk about which the prison authorities knew or ought to have known. Regard had to be paid to the medical evidence available and the consideration that the authorities had to act in a way which respected the other rights and freedoms of individuals.


197.  The applicants reiterated that the Russian Government had not substantiated their allegations of security concerns and had not explained why a document concerning an atrocity committed by the previous totalitarian regime needed to be classified. The decision to classify it also contradicted the Russian State Secrets Act, section 7 of which precluded the classification of information on human rights violations. The Katyn massacre was a violation of the  <mask> on a massive scale perpetrated on the orders of the highest authorities of the USSR.


58.  The Government submitted, in particular, that the domestic authorities had acknowledged the breach of the applicant’s son’s  <mask> since the circumstances of the latter’s death had been fully clarified in the course of the thorough, objective and comprehensive investigation. As a result, H.G. had been convicted by domestic courts and received an adequate punishment. Furthermore, the members of the command staff of the military unit, who were found to have been responsible for the tragic incident, had been subjected to disciplinary sanctions by the Minister of Defence. Lastly, the Government considered that the applicant had been provided with appropriate redress in that he had received AMD 2,250,000 from the Ministry of Defence following his son’s death. According to the Government’s submission this amount, apart from representing compensation for funeral expenses and a lump sum insurance benefit payment, was also aimed at compensating non-pecuniary damage suffered by the family as a result of Gegham Sergoyan’s death.


30.  The applicants alleged that the State authorities had fallen short of their obligation to protect their son’s  <mask>. In particular, the proceedings concerning identification of those responsible for his death were unreasonably delayed and marked by numerous deliberate omissions. Foremost, the investigative authorities took no reasonable measures to pursue promptly and diligently the leads given to them by the applicants, including the leads to V.R. and A.S., who were eventually committed to stand trial as potential perpetrators some ten years after Vitaliy Kholodkov’s death.


44.  The applicant submitted that her son, Hubert Mojsiejew, had been killed in the sobering-up centre and that his  <mask> protected by Article 2 of the Convention had therefore been violated. The legal regulations in force had proved to be ineffective and theoretical as they had not afforded effective protection of Hubert Mojsiejew’s life. It was beyond doubt that Mr Mojsiejew had died at the hands of employees of the sobering-up centre, who had abused their power by using an immobilisation technique or otherwise causing his death. Therefore, the employees of the sobering-up centre should have been prosecuted for murder and not unintentional homicide.


95.  The applicant alleged that Mr Rustam Kagirov had been abducted by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. Referring to the case of Turluyeva, cited above, he further claimed that the policemen at the roadblock failed to take measures to protect his brother’s  <mask>. He also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2 of the Convention.


18.  The Government admitted that the applicant’s brother’s  <mask> had been breached. They contended, however, that this complaint should be struck out of the Court’s list of cases because, by convicting the perpetrator and awarding damages to the victim’s relatives, the authorities had “resolved the matter” within the meaning of Article 37 § 1 (b) of the Convention.


89.  The applicant complained of a violation of the  <mask> in respect of her son, Artur Bersunkayev. She submitted that the circumstances of his disappearance and the long period during which his whereabouts could not be established indicated that Artur Bersunkayev had been killed by the federal forces. The applicant also complained that no effective investigation had been conducted into her son’s disappearance. She referred to Article 2 of the Convention, which reads as follows:


12.  The applicant complained that the existing situation infringed his  <mask> under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland, no. 32734/96, 20.4.1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.


15.  The applicant complained that the existing situation infringed his  <mask> under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland (dec.), no. 32734/96, 20 April 1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.