46.  The applicant submitted that the employment tribunals had carried out an insufficient assessment and balancing of the interests at stake. This was consistent with an automatic judicial policy that existed in such matters for the benefit of the Churches, which, in his view, enjoyed a privileged status in German law that was not granted to any other charity-type association. His rights to respect for his private life or his private sphere had not been examined by the employment tribunals. In the applicant’s submission, Article 8 of the Convention conferred on him the right to discontinue a particular way of life and to begin a new one. He argued that, whilst he did not call into question the right of the Churches to manage their affairs autonomously, that right could not go as far as forcing their employees to observe precepts outside the occupational sphere. He asserted that the employment tribunals had extended their case-law in a totally unforeseeable manner, as until then a dismissal had only been endorsed in the event of remarriage, and not on account of a private extramarital relationship. In view of the large number of ecclesiastical precepts, there was a lack of  <mask> in this connection and the decision to dismiss ultimately depended solely on the view of each human resources manager. The role of the employment tribunal was thus limited to upholding the wishes of the employing Church. According to the applicant, as a consequence of this tendency the employer and the employment tribunal were increasingly scrutinising the employee’s private life in order to establish and assess the facts on which the dismissal was based. Moreover, the fact that a particular employee failed to comply with certain ecclesiastical precepts to the letter would not undermine the credibility of the Church, but would merely be a manifestation of the individual’s human condition.


85.  The applicants submitted that they should each be awarded compensation for non-pecuniary damage in the light of the circumstances of the case. The manner in which the hospital authority chose to handle the differences of view which arose between the second applicant and the medical professionals unnecessarily complicated the first applicant's care. Furthermore, the position of vulnerability in which the first applicant was placed argued in favour of an award of compensation in his own right. The second applicant, for her part, suffered great anxiety and was subjected to unnecessary tension and stress as a result of the hospital authority's handling of the first applicant's treatment. Moreover, she had been left with feelings of injustice and apprehension as to what might happen to the first applicant in the future, given the lack of clarity and  <mask> in current domestic practice.


155.  The applicant failed, in the context of his written submissions under Article 10, to explain the nature of his challenge to the legality of the measures taken against him. Having regard to the Court’s finding in Lucas v. the United Kingdom (dec.), no. 39013/02. 18 March 2003, that the definition of the offence of breach of the peace as stipulated in Smith v. Donnelly (see paragraph 100 above) was sufficiently precise to provide reasonable  <mask> of the actions which might fall within the remit of the offence, the Court is satisfied that the interference in the present case both had a sufficient legal basis in domestic law and was “prescribed by law” in the wider sense of having the quality required of “law” in a democratic society.


96.  The applicant acknowledged that the search and seizure had had a legal basis in Finnish law but argued that the quality of that law was questionable due to the lack of  <mask>. In the Sallinen case (see Sallinen and Others v. Finland, no. 50882/99, § 87, 27 September 2005) the Court had found that the relevant provision of the Code of Judicial Procedure was unclear as it did not state with requisite clarity whether the notion of “pleading a case” covered only the relationship between a lawyer and his or her clients in a particular case or their relationship generally.


289.  The Government pointed out, first of all, that the relevant applicants had not adduced any documents proving their title to the houses, or any detailed description of the property allegedly lost by them. The Government argued that it was incumbent on the relevant applicants to have their property rights confirmed under domestic law by the competent national authorities. They further argued that the alleged interference with the relevant applicants’ rights secured by Article 8 of the Convention and Article 1 of Protocol No. 1 had been lawful, as the counter-terrorism operation in the Chechen Republic, in the context of which the strikes of 19 October 1999 had been executed, had been launched and carried out on the basis of Presidential Decrees nos. 2137, 2166 and 2155c of 30 November and 9 December 1994 and 23 September 1999 respectively, Governmental Decree no. 1360 of 9 December 1994, and the Suppression of Terrorism Act of 25 July 1998. In the Government’s submission, the aforementioned decrees, except for certain provisions, had been found compatible with the Russian Constitution by the Russian Constitutional Court. The Government insisted that all the aforementioned legal instruments had met the requirements of  <mask> and accessibility.


84.  The applicant agreed with the Government that Czech law had not allowed assisted home births at the time of her delivery in May 2012. However, she pointed out that during most of her pregnancy she had been bound by the pre-April 2012 legislation. The applicant reiterated in that connection that prior to 1 April 2012, there had been no statutory restriction on midwives providing health care during home births. In order to provide care, a midwife needed, inter alia, an “operational” licence authorising her to be regarded as a non-governmental medical facility. After the adoption of Decree no. 221/2010, which required midwives to have equivalent human, material and technical resources to those available in a delivery room in maternity hospitals, no midwife had been granted such a licence. However, although it had imposed extensive requirements on midwives in terms of equipment, the Decree had not automatically terminated the operational licences already issued. As a result, while they were still bound by the availability of compulsory equipment, there were midwives who theoretically could carry on their activities in line with the previous regulations, or rather the previous legal vacuum. As a result, pregnant women lacked legal certainty as to whether they could enjoy the assistance of a midwife during a home birth, and similarly midwives lacked the same certainty as to whether they could legally provide such assistance. Such a situation contravened the notions of  <mask> and absence of arbitrariness.


84.  The Government submitted that decisions to initiate or continue seclusion were predicated on careful medical judgments, which involved a careful weighing of matters such as the mental well-being of the patient and the chance that he might assault others. In such circumstances, an absolutely certain body of rules would be neither achievable nor desirable. Furthermore, such decisions had to be taken quickly in response to emergency situations, making a relatively wide discretionary power appropriate (X v. the United Kingdom, 5 November 1981, § 41, Series A no. 46). The  <mask> of seclusion at Ashworth was guaranteed by the clear written guidelines set out in Ashworth’s policy. The requisite protection against arbitrary interference was provided by both the detailed provisions of the Code of Practice, by the hospital’s policy and by the availability of judicial review. In addition, under section 139(1) of the Mental Health Act 1983 a patient could bring civil or criminal proceedings in respect of any act purporting to be done in pursuance of the Act where that act was done in bad faith or without reasonable care.


98.  The Government of Cyprus submitted that the applicant had been wrongly tried for acts which did not amount to offences under national or international law, and which in any event failed to meet the standards of  <mask> and accessibility required by the Convention (see G. v. France, 27 September 1995, Series A no. 325-B), in violation of Article 7 of the Convention.


52.  The Government first expressed the view that the impugned measure had been in accordance with the “law”, namely the Hague Convention of 25 October 1980, which satisfied the criteria of  <mask> and accessibility that had emerged from the Court's case-law; on this point they cited the Tiemann v. Germany and France decision of 24 April 2000. They noted that the first applicant was familiar with the provisions of the Hague Convention since she herself had relied on Article 13 (b) in asserting her rights.


27.  The applicant maintained that the Finnish law did not contain at the relevant time provisions governing restrictions on a bankrupt’s right to the secrecy of his correspondence. Neither the Bankruptcy Act nor the Postal Service Decree (which was not even in force at the relevant time) provided for any such restrictions. In the absence of relevant legislation, the interference with his rights was not “in accordance with the law”. In this connection the applicant recalled that in order to be a law, the rule had to be accessible and written in a form sufficiently precise to ensure  <mask>. As encroachment upon the right protected by Article 8 involved a serious invasion of privacy and violation of secrecy of correspondence, it should, therefore, be based on a law which was especially precise. It should clearly define the persons covered and the conditions in which the secrecy of correspondence could be interfered with. The internal instructions for the authorities, such as the repealed Postal Service Decree which was applied as an internal instruction within the postal service, did not meet the requirements of accessibility and foreseeability.


115.  The Government sought to resolve this by noting that, in the applicant’s case, the question of  <mask> must be solved on the basis of Chapter 4, section 2 of the Coercive Measures Act and Chapter 17, Article 23 of the Code of Judicial Procedure and that since the precedent decisions of the Supreme Court, the expression “pleading a case” has been given a precise meaning.


53.  The applicant maintained her complaint. She considered that the interference with her right to have family visits while in detention had not been in accordance with law and that the applicable law had lacked clarity, certainty and  <mask> as regards the authorisation of family visits in respect of people detained pending extradition. She further argued that the interference had not pursued a legitimate aim. It had placed a disproportionate burden on her and had not been necessary.


109.  The Government of Cyprus submitted that the applicant had been wrongly tried for acts which did not amount to offences under national or international law, and which in any event failed to meet the standards of  <mask> and accessibility required by the Convention (see G. v. France, 27 September 1995, Series A no. 325-B), in violation of Article 7 of the Convention.


95.  The Government of Cyprus submitted that the applicant had been wrongly tried for acts which did not amount to offences under national or international law, and which in any event failed to meet the standards of  <mask> and accessibility required by the Convention (see G. v. France, 27 September 1995, Series A no. 325-B), in violation of Article 7 of the Convention.


59.  The applicant company submitted that there had been a disproportionate interference with its freedom of expression. At the end of the proceedings, it had had to pay Ms L. a very high sum in damages (more than fifty times the average annual wage in Ireland) as well as her high legal costs, including those incurred on appeal. It was a very far-reaching interference with its right to freedom of expression that was not “prescribed by law” within the meaning of this Court’s case-law, since the domestic legal framework failed to meet the criteria of accessibility,  <mask> and clarity. The domestic law in force at the time allowed the jury in a defamation case practically unlimited discretion in assessing damages. According to the applicant company, as seen in the present case, the trial judge was not permitted to offer any useful or meaningful guidance to the jury, such as relevant comparisons or even a range of figures. While the 2009 Act provided for guidance to be given to juries in relation to damages, it did not fundamentally alter the domestic system. There was even a risk that the amount given to Ms L. would be taken as setting a benchmark in future defamation cases.


118.  The Government claimed that in any event the damage to the applicant's property was lawful, as section 21 of the Law on Suppression of Terrorism “permits the deliberate inflicting of damage on legally-protected interests, including property rights”. In the Government's submission, the legal act had been duly published and therefore met the requirements of clarity, accessibility and  <mask>. They also insisted that the interference in question had pursed a legitimate aim, as the counter-terrorist operation had been launched in order to suppress criminal and terrorist activity, ensure security of individuals, and protect their rights and freedoms.


41.  The applicant further argued that the prohibition order complained of was based solely on an internal instruction issued by the Burgomaster to the police. This instruction had not been published. Members of the public could not therefore be aware of the nature of the conduct likely to induce the Burgomaster to issue a prohibition order, nor could they be aware that sanctions in the form of prohibition orders even existed. Moreover, since issuing the instruction in 1983 the Burgomaster had never made public any decision declaring that an exceptional situation existed in any particular area. The only information available was that supplied in individual cases by police officers. In those circumstances, the  <mask> requirement enshrined in the concept of “law” had not been met.


100.  The Government maintained that the search and seizure had been in accordance with the law, namely Chapter 5, section 1 of the Coercive Measures Act. As to the quality of the law, the Government referred to the Court’s findings in the Sallinen case (cited above, § 87) but maintained that the question of lack of  <mask> of domestic law had to be assessed in another manner.


100.  The applicant argued that on 18 July 2005 the police had conducted an unlawful search of his home without first obtaining a court order. He submitted that the relevant domestic law lacked clarity and  <mask> with respect to the meaning of the term “search”, as opposed to the term “inspection”. The law was also unclear in defining the scope of police powers to examine a residence on the basis of the resident’s consent.


29.  The Government argued that the measure satisfied the criteria of paragraph 2 of Article 8. In their submission, it had been in accordance with the law, namely, Emergency Ordinance no. 194/2002 published in the Official Gazette, and therefore fulfilled the condition of accessibility. The Government considered that the criterion of  <mask> had also been satisfied in that section 83 of the above-mentioned ordinance provided that aliens could be banned from the country only in strictly defined circumstances, that is, if they had engaged, were engaged or had the intention of engaging in activities capable of endangering national security or public order.


110.  The Government of Cyprus submitted that the applicant had been wrongly tried for acts which did not amount to offences under national or international law, and which in any event failed to meet the standards of  <mask> and accessibility required by the Convention (see G. v. France, 27 September 1995, Series A no. 325-B), in violation of Article 7 of the Convention.


65.  The Government contended that Sweden had fulfilled its  <mask> under Article 8 in the present case. The act in issue fell within the scope of the Swedish criminal legislation, notably the provisions concerning sexual molestation and the offence of child pornography, and there were no elements suggesting that the primary investigation and the prosecution had not been conducted effectively or in a manner otherwise incompatible with Swedish law or Article 8. The applicant’s stepfather had been prosecuted for the act but could not be convicted on account of the lack of requisite evidence. Nevertheless, deterrent sanctions existed in this case and were backed up by effective law-enforcement machinery.


166.  The Government further submitted that they strongly disagreed with the reasoning adopted by the Court in its judgment in the case of Tysiąc v. Poland, concerning the potential threat to the pregnant woman’s health caused by pregnancy and by the refusal of termination. However, even if the present case were to be assessed from the point of view of the principles developed in that judgment, no support could be found therein for the applicant’s position. The question of voluntary termination of pregnancy for eugenic reasons, concerned in the present case, could not be derived from the State’s  <mask> to provide adequate medical care.


66.  The Government initially pointed out that the Court had repeatedly stated that States enjoyed a wide margin of appreciation with regard to ensuring adequate protection under Article 8, even in cases of very severe offences such as the rape of a minor (see, for example, M.C. v. Bulgaria, no. 39272/98, § 154, ECHR 2003‑XII), and that only significant flaws in legislation and practice, and their application, would amount to a breach of a State’s  <mask> under the said provision.


14.  The applicant contested these views, pointing out in particular that the Government had failed to expound what the phrase “granting [his request] would have contravened the purpose of the arrest” actually meant. He argued that the restriction was disproportionate; and an acceptable – and proportionate – solution would have been to allow him to attend the funeral under police escort. This was the minimum that the authorities’  <mask> in this field would have required in the circumstances.


157.  The applicant considered that the State had failed to provide him with access to information in violation of his rights under Article 8. The Court observes that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be  <mask> inherent in effective respect for private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck


124.  The Government’s main line of argument therefore was that they were not responsible under Article 1 of the Convention in the primary sense of that provision. As a dispossessed sovereign they had only limited responsibility, namely to fulfil their positive obligation to take all measures that were in their power to take and in accordance with international law (see Ilaşcu and Others, cited above, § 331). They argued that such  <mask> depended on the factual circumstances of the case and were not to be construed in such a way as to impose a disproportionate burden on the State (ibid., § 332). The Government asserted that they had taken all general and individual measures they could be expected to take (see paragraph 210 below).


62.  The Government were of the view that their  <mask> could not extend to an obligation to ensure the applicant the exclusive custody of his daughter or unlimited access to her. In the present case the authorities had taken all possible measures in order to make it possible for the ties between the applicant and his child to develop. The obstacles the applicant encountered in respect of access to the child had stemmed from the mother's lack of cooperation, the responsibility for which could not be attributed to the State. The Government submitted that in their decisions the domestic authorities had essentially been guided by the interests of the child. Their decisions were also in accordance with applicable provisions of domestic law.


23.  The applicants complained that their right to respect for their family life, protected by Article 8 of the Convention, had been infringed, in so far as the courts ordering the return of the second and third applicants to Italy had failed to take into account the grave risk that they would be subject to physical or psychological harm at the hands of their father. For the same reasons, the applicants considered that, in failing to protect the children against the risk of abuse, the authorities had breached their  <mask> enshrined in Article 3 of the Convention.


40.  The Government did not accept that the Andorran courts had unduly prevented the applicant from having contact with his children. They argued that the State had complied with its  <mask> under Article 8 of the Convention. It stressed that all domestic decisions had been based on the best interests of the children, both judges and public prosecutors having had regard to the children’s psychological and emotional situation. In this regard, the different judges and courts that had been called upon to decide matters had ordered that a number of psychological examinations be carried out. Those examinations had always suggested that the care and custody of the children ought to be granted to their mother and that a further psychological examination or treatment of the children ought to be performed before their father should be granted physical contact with them.


49.  The Government noted that the applicant alleged a violation of the State’s  <mask> under Article 8 of the Convention. However, what was at stake in the present case was a weighing of the applicant’s interests protected by Article 8 on the one hand against the freedom of the press to disseminate information protected by Article 10 of the Convention on the other. It followed that the principles developed by the Court’s case‑law under Article 10 also had to be taken into account.


49.  The Government argued that the Catholic Church, to which the parish church of Saint Lambertus belonged, in spite of its status as a public-law entity, was not part of government. Therefore there had not been any interference with the applicant’s rights on the part of the public authorities. The alleged shortcomings of the employment tribunals could therefore be examined solely in terms of the State’s  <mask>. They submitted that since there was no common practice in this area among the member States, the margin of appreciation should be broad, especially as the issue was related to religious feelings, traditions and domains. The Government pointed out that the European Commission on Human Rights (in Rommelfanger v. Germany, no. 12242/86, Commission decision of 6 September 1989, Decisions and Reports (DR) 62, p. 151) had in fact confirmed the findings of the Federal Constitutional Court, as set out in its judgment of 4 June 1985, to which the Federal Employment Tribunal had referred in the present case.


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


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


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


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


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


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


65.  The Government did not deny that Article 8 applied to the circumstances of the case but considered that there had not been any violation. They submitted that States enjoyed a margin of appreciation which allowed them to select on a case-by-case basis the course of action best designed to meet their  <mask>. The Government maintained that the Portuguese authorities had taken every possible step to ensure compliance with the decisions of the French courts regarding the custody of the child.


119.  The Government also referred to the case of Guichard v. France ((dec.), no. 56838/00, 2 September 2003) where the removal of the child by the mother had not been considered to be “wrongful” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction and where the Court had found that Article 8 of the Convention had not therefore imposed  <mask> on the French authorities to secure the return of the child.


74.  The applicant also complained before various domestic authorities of a lack of diligence in the proceedings and about the possibility that the prosecution of I.Š. could become time-barred. These actions taken by the applicant should have been followed by the effective implementation of domestic criminal-law provisions by the domestic authorities which would satisfy the requirements of the State’s  <mask> under the Convention. However, the Court does not see how the possibility of lodging a criminal complaint against the state officials involved in the criminal proceedings in respect of the applicant’s complaint of a violent attack by another individual could be considered as having satisfied these requirements. Therefore, having in mind the actions taken by the applicant, the Court considers that the applicant was not required to lodge a criminal complaint as suggested by the Government.


41.  The Government argued that the Convention did not guarantee the right to have criminal proceedings instituted against third persons. They argued that in the present case the police had reacted promptly and submitted a request for minor-offences proceedings to be instituted against the attackers. In those proceedings all the relevant facts had been established and it had been concluded that the individuals in question had only verbally abused the applicant. They further maintained that the State’s  <mask> could not require the criminal prosecution of the attackers or their conviction. Therefore, the fact that the police had requested the institution of minor-offences proceedings had been sufficient.


83.  The Government further argued that the present case was similar to the case of Guichard v. France ((dec.), no. 56838/00, 2 September 2003) where the applicant had not been able to rely on the protection afforded by the Hague Convention on the Civil Aspects of International Child Abduction and where the Court had found that Article 8 of the Convention had not therefore imposed  <mask> on the French authorities to secure the return of the child. Lastly, the Government submitted that the present case was also similar to the case of Petersen (cited above) where the Court had found that the child’s interest in temporarily moving abroad with his mother and his new family had overridden the applicant’s interests. The Government’s argued that in the present case too a prohibition on leaving Russia would have violated the children’s freedom of movement guaranteed by Article 2 of Protocol No. 4. Given that the residence order had been granted in favour of the mother, the children could not have been separated from her merely because she had decided to move to Germany and to establish her family life there with a new husband. V. and N. had been moreover entitled to maintain contact with their younger half-brother born in Germany.


65.  The applicant complained that the United Kingdom had violated its  <mask> under Article 8 of the Convention, taken alone and taken together with Article 13, by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. The Government contested that argument


111.  The applicant complained that, by failing to secure regular contact with her sons, which was necessary to maintain family ties between them, the domestic authorities had breached their  <mask> and thereby violated her right to respect for her family life, as guaranteed by Article 8 of the Convention. She also complained under Article 13 of the Convention that she had not had an effective remedy by which to complain about that violation. The relevant part of those Articles reads as follows:


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


58.  The Government submitted that they had complied with their  <mask> to ensure the effective protection of children from sexual abuse: there were domestic criminal-law provisions which prohibited the relevant offences and those provisions were effectively implemented in practice. The Government emphasised that the domestic authorities had had to deal with a complex case, the victim of the alleged offence had been only three years old at the time of the events, and there had been a lack of direct evidence. Nevertheless, the authorities had taken all possible measures to conduct the investigation effectively. The present complaint therefore did not give rise to a violation of the Convention.


56.  The applicant submitted that the authorities’  <mask> under Article 8 of the Convention were activated immediately when the situation of a child at risk was brought to their attention. In her case, this had applied from the moment the police had entered her home to arrest her parents. The police had questioned the applicant and had seen her identity document, from which it had been clear that she was a minor. When her parents had been arrested, there had been no one else in the apartment who could have been asked to inform the competent authorities to arrange for the applicant’s care.


41.  The Government said in conclusion that the child's persistent refusal to see her mother was the only reason why the access arrangements had not been complied with. It would be going beyond the State's  <mask> under Article 8 of the Convention to take coercive measures to force the child to meet her mother. Therefore, even assuming that there had been an interference with the applicant's right to respect for her family life, it had been justified under paragraph 2 of Article 8.


210.  The Government contended that even if Article 8 gave rise to  <mask> on the authorities to consider the marine risks, the obligation extended only to conducting appropriate investigations and studies so that the effects of the activities that might damage the environment and infringe individual rights could be predicted and evaluated in advance and a fair balance could accordingly be struck between the various interests at stake.


19.  The Government argued that the environmental problems suffered by the applicant had arisen essentially due to a toll introduced by a private motorway company and the State had responded with various measures to protect the inhabitants of Alsónémedi from the level of environmental harm proscribed by the Court's case-law under Article 8, thus complying with its  <mask> in this field.


53.  The applicant’s first complaint was that the authorities had not done enough to enable him to inform his family of his arrest and placement in detention. This raises an issue under the authorities’  <mask> flowing from Article 8 of the Convention. The Court has had occasion to hold that in view of the deep anxiety that the disappearance of a family member can cause, even for a short period, and the consequent importance for someone who has been arrested to be able to get in touch with his or her family promptly, there is an obligation under that Article to enable an detainee to contact them rapidly after being taken into custody (see Sarı and Çolak v. Turkey, nos. 42596/98 and 42603/98, §§ 33-37, ECHR 2006-V (extracts)). In some cases this can also amount to an important safeguard to prevent arbitrary detention (see, mutatis mutandis, Kurt v. Turkey, 25 May 1998, §§ 122-24, Reports of Judgments and Decisions 1998-III). Indeed, in Bulgaria such an obligation is set out in section 243 of the 2009 Act (see paragraph 26 above). As evidenced by that provision, as well as the other relevant provisions of Bulgarian law, European Union law and international law (see paragraphs 23 to 27 above), that obligation takes on an added importance when the detainee is an alien whose family may be in a different country.


106.  The Government argued that the case should be examined exclusively from the perspective of  <mask>. They observed that the law in force did not prohibit childbearing women from giving birth at their private home, and that no sanctions were imposed by the authorities in such cases. Accordingly, in the Government’s view, the core question in the present case was whether the State should broaden the current scope of health care provided to women giving birth in the Czech Republic. The provision of health care in general was an area where regulation was the default, so that the State could guarantee a certain quality and standard for both private and public health care. In order to “allow” the assistance of health professionals at home births, the Government would have to put in place a considerable legislative and administrative framework, in addition to other facilities, including a change to the system of emergency care.


60.  The applicant maintained that the Constitutional Court had refused to provide redress to him. The relevant law permitted the District Court to issue, of its own initiative, an injunction allowing the applicant temporarily to meet his son. By failing to issue such an injunction the District Court had disregarded the  <mask> incumbent upon the respondent State under Article 8 of the Convention.


2.  The applicants initiated a set of proceedings challenging the failure of the police to intervene during what was clearly a hate- and violence-inciting demonstration (on this aspect I cannot but agree with the majority) and to initiate a criminal investigation into the offences of incitement to hatred against members of an ethnic group, the Roma community, and of violence against members of that group. The administrative proceedings against the police were to no avail. The ensuing criminal investigation in respect of the participants in the demonstration was subsequently discontinued as regards the charges of incitement against an ethnic group, and one of the perpetrators was convicted of violence against a member of an ethnic group. The applicants complained that the domestic authorities had not observed their  <mask> under Article 8 to intervene during the demonstration (to disperse the event) and to apply criminal measures against the alleged perpetrators (to pursue criminal proceedings into the racially motivated criminal offences).


85.  The Government maintained that the cemetery had been built in the interests of the villagers of Tatariv, as there had been absolutely no other place in the mountainous region near the village that could be used for a cemetery. They further stated that while it was true that the cemetery had been built in breach of environmental health laws and regulations as it had lacked the health protection zone required by law, the authorities had done all they could to prohibit burials and to provide the applicant with an opportunity to be re-housed, even though such an obligation to resettle had not existed in law. According to them, he had continuously rejected such proposals. In this respect they supplied letters of 10, 15 and 16 December 2009 from Tarariv Council and the Ivano-Frankivsk Regional State Administration, in which the municipal authorities stated that the applicant was not interested in resettlement (see paragraph 34 above). The Government accepted that the fact that the cemetery was placed on the VL plot engaged State’s  <mask> under Article 8 of the Convention.


48.  The Government noted that the necessity of the measure had been assessed twice, with a possibility of rejection – first by the Attorney General and subsequently by the Vilnius Regional Court. The contested operational measure had been necessary and had been applied in the interests of national security, public safety and the prevention of crime. The authorities had had operational information about the applicant’s possible involvement in criminal activities. The applicant had close connections with J.B. and persons from J.B.’s milieu. Most importantly, in the course of the operational investigation in respect of J.B., the authorities had learned about his threats to the State President. That information had later been confirmed when intercepting the applicant’s telephone conversation with J.B., in which the latter used psychological pressure and demanded that his requirements be reported to the head of State. Subsequently, J.B. had been convicted of having threatened the State President. The Government also observed that both J.B. and the applicant had had close relations with the State President and had played a significant role in the political activities of the President’s political party and his electoral campaign; at the time of surveillance the applicant had been a member of the Vilnius City Municipal Council. In this connection the Government also referred to the Court’s judgment in Craxi v. Italy (no. 2) (no. 25337/94, § 64, 17 July 2003), submitting that politicians inevitably and knowingly laid themselves open to close scrutiny by both journalists and the public at large. Therefore, even acknowledging that no investigation had been carried out by the SSD in order to reveal the circumstances in which the journalists had obtained the recording of the intercepted conversation, the question of fulfilment of the State’s  <mask> under Article 8 of the Convention could not arise.


46.  The applicant complained that the attack on her on 24 October 2000 by a pack of stray dogs constituted a breach of her right to physical integrity. The attack had had severe consequences for her state of health, which, having regard to her advanced age and lack of financial means to pay for medical care, had caused her serious physical and mental suffering. She alleged that the incident and its consequences were due to the lack of action on the part of the Romanian authorities to solve the problem of stray dogs and ensure the safety and health of the population. Accordingly, the State had failed in its  <mask> under Article 8 to protect the applicant’s physical and moral integrity and prevent intrusion into her private life.


49.  The Government further submitted that even assuming that the State’s  <mask> in respect of the private and family life of the applicant and her son were engaged in the present case, Russia had complied with its positive obligations. The domestic courts had examined the applicant’s claims under Article 152 of the Civil Code and had come to the conclusion that the information contained in the booklet had not adversely affected the applicant’s honour, dignity and reputation.


52.  The applicant furthermore underlined that the mani pulite campaign had been conducted in an unfair way and pursuing a political aim. In particular, a number of violations of the secrecy covering the investigations were committed in order to attract the attention of the media. He concluded that by releasing the interceptions into the public domain the Italian authorities had failed to respect the  <mask> imposed on them by Article 8 of the Convention.


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


50.  The applicant argued that the State authorities had failed in their  <mask> under Articles 2, 3 and 8 of the Convention in respect of the acts of violence committed against her by B. She maintained that although the national courts, in both criminal and minor offences proceedings, had imposed certain sanctions and ordered certain measures, most of these had not been enforced, thereby seriously undermining any meaningful purpose of those proceedings. The national courts had also misapplied the relevant provisions of the applicable substantive and procedural law.


61.  The applicant’s complaint concerned the respondent States’ alleged failure to secure contact with her estranged daughter. It is not disputed that these matters pertain to “family life” within the meaning of Article 8 of the Convention and that this provision is applicable. On the facts of the present case, the Court observes that the primary interference with the applicant’s right to respect for her family life may not be attributed to either of the respondent States but rather to the actions of the child’s grandparents, third parties, who had retained the child in Bulgaria (see R.S. v. Poland, no. 63777/09, §§ 56-57, 21 July 2015; López Guió v. Slovakia, no. 10280/12, § 85, 3 June 2014). It therefore remains to be ascertained whether there were any  <mask> on the part of the respondent States with a view to securing the applicant’s right to respect for her family life and, if so, whether any such positive obligations have been complied with by the respondent States.


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


51.  The Government were of the view that their  <mask> could not extend to an obligation to ensure the applicant the exclusive custody of his son or unlimited access to him. In the present case the authorities had taken all possible measures in order to make it possible for the ties between the applicant and his child to develop. The obstacles the applicant encountered in respect of access to the child had stemmed from the mother's lack of co-operation, the responsibility for which could not be attributed to the State. They noted that between May 1997 and August 1998 the applicant had made it impossible for O. to see her son. The Government submitted that in their decisions the domestic authorities had essentially been guided by the interest of the child. Their decisions were also in accordance with applicable provisions of domestic law.


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


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


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


42.  The applicant argued that due to the deficient domestic legislative framework concerning the offence of domestic violence under the 2011 Criminal Code, she had not had an effective remedy at her disposal. In this connection, she stressed that it was the duty of the State authorities to effectively prosecute the acts of domestic violence perpetrated against her. In her view, it was unacceptable, from the perspective of the State’s  <mask>, to leave victims of domestic violence to pursue the prosecution of the perpetrator on their own initiative, without any assistance from the State.


51.  The applicants noted that they were seeking damages arising from death and grievous bodily harm which were not the result of normal torts such as a traffic accidents but which were a result of the Government’s failure to fulfil their  <mask> under the Convention, namely to safeguard a person’s life, to investigate properly any death or harm for which the State was responsible, to provide information about any risk to life or health, and to identify the persons responsible for the violation. It followed that they were also entitled to compensation for non-pecuniary damage.


51.  The Government considered the case as one regarding  <mask>, in that the letting off of fireworks was carried out by third parties but it was the State which issued the relevant conditions, regulations and permits. Such measures regulated interference by third parties with a person’s private rights, and required a balance to be reached between the religious and social expression of village communities and the interests of the applicants.


56.  The Government submitted that even if the Court found Article 8 applicable in this case, the domestic authorities had complied with their  <mask> under that Article by properly policing the demonstration. Contrary to the applicants’ allegations, this was not a case in which the police had stood by and done nothing: they had taken a wide range of preventive measures prior to the demonstration, including vehicle checks, identity checks and consultations with the representatives of the Roma minority. They had also considered that the most effective method to secure the demonstration had been for the force to act as a team and not to take measures against certain individuals. This operational decision fell within the ambit of legitimate police discretion, as confirmed by the domestic courts’ decisions.


33.  The Government noted that the applicant had alleged a violation of the State’s  <mask> under Article 8 of the Convention. However, what was at stake in the present case was a weighing of the applicant’s interests protected by Article 8 on the one hand and the freedom of the press to disseminate information protected by Article 10 of the Convention on the other. It followed that the principles developed by the Court’s case-law under Article 10 also had to be taken into account.


89.  The applicant alleged that the Austrian courts had failed to expeditiously take all the necessary and adequate steps in order to secure the children’s return to France, and that the final decision not to enforce the order on the grounds of the passage of time, five years and six months after the return order had been issued, was entirely the Austrian courts’ fault. They had therefore violated their  <mask> to reunite the applicant with his children, and had gradually cut his family ties with them, resulting in irremediable consequences.


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


35.  The Government argued that the authorities had acted diligently, without delays and within the limits of their powers, and had thus complied with their  <mask> under Article 8 of the Convention. They pointed out that the applicant had not complained about the assistance received from the bailiff and reiterated that the latter could not have forcibly taken the child away from the father. In their view, the person solely responsible for the non-enforcement was I.T.


47.  The Government denied, however, that the inability to adopt Hind constituted an “interference” with the applicant’s family life. The Court shares that view. It observes in this connection that the applicant did not complain of any major hindrance to the continuance of her family life but argued that to ensure respect for the latter it was necessary to equate kafala with full adoption and thus to recognise a legal parent-child relationship, this being excluded by Article 370-3 of the Civil Code where the child’s country of origin prohibited adoption. In those circumstances, the Court finds it more appropriate to examine the complaint in terms of  <mask>. In this connection, the Court would draw a distinction between, on the one hand, the situation in the present case, where the law of the respondent State merely refuses to equate kafala with adoption and refers to the child’s personal law to determine whether such adoption is possible, and, on the other, the situation in the Wagner and J.M.W.L. judgment (cited above), where it decided that the Luxembourg courts, in refusing to grant enforcement of an adoption decision by a Peruvian court, had disregarded the legal status validly created abroad, in an unreasonable manner, and had thus breached Article 8 of the Convention. The Court reiterates that the notion of “respect” as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002‑VI).


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


78.  The applicant stated that her inability to effectively opt for any alternative model of childbirth and the requirement for her to surrender to the obstetric model of birth care in hospital – causing her to experience obstetric violence – represented a serious breach of her right to decide on the circumstances in which to give birth, and interference with her right to physical and psychological integrity under Article 8 of the Convention. Although she believed that the circumstances of her case called for an assessment primarily in terms of the Government’s  <mask>, the applicant intended to apply a holistic approach to the assessment of whether the damage sustained by her was justifiable in the light of the relevant principles of the Convention, bearing in mind that the underlying principles of legality, legitimacy and proportionality were inherent in both the positive and negative obligations of the State.


65.  The Government contended that after 6 March 2014 it had been inappropriate to pursue the enforcement of the return order in view of the Ukrainian courts’ decision that the child should continue to live with his mother (see paragraph 51 above). Taking into account the principles outlined above, according to which the best interests of the child must be the primary consideration, the Court accepts that a change in the relevant circumstances may exceptionally justify the non‑enforcement of a final return order (see Sylvester v. Austria, nos. 36812/97 and 40104/98, § 63, 24 April 2003). However, having regard to the State’s  <mask> under Article 8 and the general requirement of respect for the rule of law, the Court must be satisfied that “the change of the relevant facts” was not brought about by the State’s failure to take all measures that could reasonably be expected to facilitate the enforcement of the return order (see Sylvester, cited above, § 63 and Sévère v. Austria, no. 53661/15, § 105, 21 September 2017). The Court notes that since his removal from the Czech Republic in 2009, the second applicant had been constantly living with his mother in Ukraine, separately from the first applicant. Therefore, the finding of the Ukrainian courts in 2014 that the child had adapted well to living in Ukraine was not surprising, having regard to the considerable period of time which had passed by that time. However, the Court considers that the passage of time leading to such a finding had been mainly imputable to the Ukrainian authorities who had not dealt swiftly with the return request and who had failed to take appropriate measures to enforce the return order. Accordingly, by the time of the court decisions referred to by the Government, the domestic authorities had already failed to ensure the effective protection of the applicants’ right to respect for their family life.


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


46.  The Government submitted that there had been a pressing need for reforms to the prosecution of domestic violence as provided for under the 1997 Criminal Code. In particular, Article 215a of the 1997 Criminal Code had been vague and ambiguous, and had therefore raised an issue of legal certainty in its application. Moreover, it had opened the possibility of duplication of criminal and minor offences proceedings for the same acts of domestic violence, which had raised an issue from the perspective of the ne bis in idem principle as defined in the Court’s case-law. The Government further stressed that although the 2011 Criminal Code had abolished the separate criminal offence of domestic violence, continuity of criminal responsibility had been secured through the criminalisation of acts of domestic violence as aggravating forms of other criminal offences, most of which had been subject to public prosecution. In the Government’s view, in the case at issue the applicant had been provided with an effective opportunity to pursue private criminal proceedings against B.B. but she had failed to avail herself of that opportunity. The Government therefore considered that there had been nothing suggesting inadequacy of the domestic legal framework for the protection of victims of domestic violence from the perspective of the State’s  <mask> under the Convention.


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


83.  The Government further took the view that, as the Chamber had found in paragraph 78 of its judgment, the present case had to be examined from the perspective of the State’s  <mask> (in the light of Rommelfanger v. Germany, no. 12242/86, Commission decision of 6 September 1989, Decisions and Reports 62). The Government argued that the State had fulfilled its obligations in the present case.


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


46.  The Government conceded that, at the time, the operator of the Internet server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of malicious misrepresentation and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the Court notes that it has not excluded the possibility that the State’s  <mask> under Article 8 to safeguard the individual’s physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998-VIII). For the Court, States have a positive obligation inherent in Article 8 of the Convention to criminalise offences against the person, including attempted offences, and to reinforce the deterrent effect of criminalisation by applying criminal‑law provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). Where the physical and moral welfare of a child is threatened, such injunction assumes even greater importance. The Court notes in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 64, Reports 1996‑IV).


105.  The applicants referred to the evolution which had taken place, as a result of which many countries had legislated in favour of some type of institution for same-sex couples, the most recent additions being Gibraltar and Malta, whose legislation enacted in 2014 gave same-sex couples grosso modo the same rights and duties applicable to married couples; registered partnership for same-sex couples had also been instituted in Croatia. They considered that there was no reason why those unions should not be provided for in Italy. They noted in particular that the Italian Constitutional Court itself had considered that the state had an obligation to introduce in its legal system some form of civil union for same-sex couples. They referred to the Court’s jurisprudence concerning the  <mask> inherent in an effective respect for private and family life, and reiterated that according to the Court, where a particular facet of an individual’s existence or identity was at stake, or where the activities at stake involved a most intimate aspect of private life, the margin allowed to a State was correspondingly narrow (Söderman v. Sweden [GC], no. 5786/08, § 79, ECHR 2013).


41.  The applicants alleged that the annulment of the first applicant’s residence permit and subsequent imposition of an re-entry ban had adversely affected their right to  <mask>, as the first applicant had to leave Russia, his wife and minor son staying to reside there. The first applicant stated that the real reason for his exclusion was the deterioration of relations between Russia and Turkey owing to the military aircraft incident, which was illustrated by the fact that the traffic violations he had allegedly committed had been registered after that incident (see paragraph 20 above), as well as the inspection of his farm which had led to his administrative punishment (see paragraph 14 above). Moreover, actual proof of that connection had clearly been confirmed by the representative of the Komi FSB at the court hearing on 24 February 2016 when he had stated “the international situation is complicated, therefore the attitude in Russia towards violations by foreign nationals has become stricter” (see paragraph 21 above). However, despite the first applicant requesting that the courts verify his allegation that his exclusion had been caused by the deterioration of the political relationship between Russia and Turkey, the courts had not done so. The first applicant further pointed out that the copy of the Komi FSB’s letter of 2 December 2015 requesting that his residence permit be annulled did not provide any information concerning either the factual basis or motives for the sanction against him. The Government had failed to provide the Court with the Komi FSB’s decision of 27 November 2015 which had served as the basis for its request of 2 December 2015 to annul his residence permit (see paragraph 26 above). Given that no explanations for such a failure had been given, the first applicant, referring to Nolan and K. v. Russia, no. 2512/04, §§ 51-57, 12 February 2009, invited the Court to draw inferences from the Government’s failure to furnish all necessary facilities to the Court in its task of establishing the facts.


61.  The applicants complained, alleging a violation of their respective rights to  <mask> on account of the lack of practical opportunities for prison visits stemming from decisions to allocate prisoners to remote penal facilities and their subsequent inability to obtain transfers to other facilities. They relied on Article 8 of the Convention, which reads, in so far as relevant, as follows:


88.  The Government also asserted that the applicant could have brought a civil action for damages against the State for any non-pecuniary damage he had sustained as a result of the alleged violation of his right to  <mask>. In support of their assertions, they submitted eleven domestic decisions in which a wide range of rights, including the right to respect for family life, had been recognised as “personality rights” capable of causing mental distress warranting compensation.


62.  The Government also provided the Court with extracts of nine cases where domestic courts had not ordered administrative removal of persons found guilty of an administrative offence as, in the courts’ view, their removal would violate their right to  <mask>. They further stated that in the applicant’s case the domestic courts duly took into account his family situation and the nature of the administrative offence, as well as the previously committed administrative offences, and reached a reasonable conclusion that his removal was necessary for the protection of the public interest so as to secure compliance with immigration laws.


42.  The applicant submitted that the refusal to grant her a residence permit and to impose an exclusion order constituted a disproportionate interference with her right to  <mask>. In the applicant’s view, she was entitled to expect that she would be granted a residence permit for the purpose of starting a family with her Dutch partner since her request for a provisional residence visa, which was assessed on the same criteria as a residence permit, had been granted. Emphasising that the actual point of requiring aliens to apply for a provisional residence visa in their country of origin is for the assessment of that alien’s eligibility for a residence permit to take place in his/her home country rather than on Dutch soil, the applicant argued that in such a system it stands to reason that – once a provisional residence visa has been granted – a residence permit can only be denied in “exceptional circumstances”, as indeed provided for in Chapter B1 1.1.8 of the Aliens Act Implementation Guidelines 2000. Such situations usually involve a subsequent intervening change in circumstances such as loss of employment, the end of the relationship, new crimes committed etc.


75.  The applicant emphasised that the Austrian authorities, when examining the decision to lift his asylum status and to expel him, in respect of a possible interference with his right to  <mask> overlooked the fact that his wife and the two children, born in 2004 and 2007, had independent asylum status in Austria. In those asylum decisions, the Independent Asylum Panel explicitly stated that the applicant’s wife had a well-founded fear of independent persecution if she returned to the Russian Federation. It followed that the applicant’s wife and children could not reasonably be expected to follow the applicant to the Russian Federation to maintain family life; in fact, an expulsion of the applicant to the Russian Federation would render any effective family relations impossible.


359.  The Government contested the applicants’ argument. They submitted, firstly, that the complaint was incompatible ratione materiae with the provisions of the Convention. In their view, the relations between the US applicants and the children they sought to adopt constituted neither “family life” nor “private life” within the meaning of Article 8 of the Convention and did not fall within the ambit of that provision for the purposes of Article 14 either. The Government pointed out that the right to adopt is not, as such, included among the rights guaranteed by the Convention and that Article 8 does not oblige States to grant a person the status of adoptive parent or adopted child (see X v. Belgium and Netherlands, no. 6482/74, Commission decision of 10 July 1975, and Di Lazarro v. Italy, no. 31924/96, Commission decision of 10 July 1997). Furthermore, according to the Court’s case law, the right to  <mask> presupposes the existence of a family and does not safeguard the mere desire to found a family (see Fretté v. France, no. 36515/97, § 32, ECHR 2002‑I).


45.  The Government argued that the interference with the applicant’s right to  <mask> was justified under paragraph 2 of Article 8 of the Convention. They essentially stated that the domestic courts had carried out an in-depth examination of the entire family situation and made a balanced and reasonable assessment of the respective interests of the child and both parents. In the circumstances of the case, the resulting decision not to order the child’s return to Canada had undoubtedly been in his best interest.


34.  The Government contested the allegation. They acknowledged that there was family life between the applicant and his daughter and that the impugned measure had constituted an interference with the right to  <mask>. However, it had been in accordance with the law and pursued the legitimate aims of protecting the health or morals and the rights and freedoms of the child. There was no indication that the law had been applied for any other purpose than to provide the child with safe and stable living conditions and to ensure a secure environment for her development. The measure had a basis in national law, according to which in case of dispute it was for the court to define the extent and the manner for the visits having regard to the best interests of the child. In the present case, the courts had received the Social Welfare Board's written opinion and evidence submitted by the parties. The courts had given relevant reasons. At the time of the proceedings, the girl had already been living with her mother in Finland for over five years. She had taken the view that she would like to see her father on her own when she grew older. If the parents agreed, nothing prevented the applicant and his daughter from meeting more often, as the visiting rights ordered by the courts were only a minimum.


44.  The applicant claimed that there had been a continuing violation of his right to  <mask>. On many occasions he had asked to be allowed to see his daughter without the presence of his former wife and the court-appointed guardian, however to no avail. He had repeatedly instituted several sets of proceedings aimed at providing him with the opportunity to have regular contacts with M. He further claimed that the child’s mother had a negative influence on M. As a result, emotional ties between them loosened and he became in fact excluded from the process of bringing up his child. He concluded that there had been a violation of Article 8 in this respect.


120.  The applicants alleged that the disappearance of their relative had amounted to a violation of their right to  <mask>. They also complained that the search carried out at their house on 4 February 2003 had been illegal and constituted a violation of their right to respect for their home. It thus disclosed a violation of Article 8 of the Convention. They also referred to the unlawful seizure of their property during the search and relied on Article 1 of Protocol No. 1 to the Convention. These Articles provide as follows:


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  <mask> and of the prohibition of discrimination. 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.


32.  The Government submitted that the decision rendered by the Bucharest Court of Appeal did not constitute an interference with the applicants’ right to  <mask>. In this connection, the Government pointed out that at the time of the second applicant’s removal, the first applicant had not had sole custody rights and the two spouses had not lived together since 23 January 2008, when a restraining order was issued against the first applicant. Furthermore, the Government pointed out that the first applicant had breached the restraining order.


39.  The applicants submitted that the German authorities had interfered with the applicants’ right to  <mask> not only by partially withdrawing parental authority and transferring those rights to the youth office but also by enforcing the decision and placing their children in a children’s home for three weeks. Those interferences had not pursued a legitimate aim – in particular they had not aimed at the protection of the health, rights and freedoms of the children – as the children had been schooled and the removal from their parents and their family home had harmed them instead of protecting them. Moreover, the interferences had also not been necessary in a democratic society. Firstly, there had not been sufficient evidence of any risk to the children, let alone relevant and sufficient reasons to justify the removal and withdrawal of parental authority. Secondly, the authorities had not acted in the best interest of the children but had merely acted to prevent home schooling and to enforce the rules on compulsory school attendance. Thirdly, the authorities had not attempted less intrusive measures, had not worked towards reunification of the family and had not transferred the parental rights back to the applicants as soon as possible. Lastly, the decisions of the authorities had been based on misconceptions of home schooling and the wrong assumption that such schooling would lead to social isolation and a lack of education. These assumptions, however, had not been grounded in facts.


51.  The applicant submitted that at the time of the child’s birth he had no possibility to challenge his declaration of paternity as DNA tests were not widely used. The applicant referred to the Court’s case-law stressing that  <mask> required that biological reality should prevail over a legal presumption of paternity and that the domestic courts should have interpreted the existing legislation in the light of scientific progress (Tavlı v. Turkey, no. 11449/02, 9 November 2006).


74.  The applicant’s view on her right to  <mask> was also disregarded by, for example, the Migration Service with reference to the fact that she had not seen her mother for four years; that it had been her mother’s voluntary decision to send the applicant to Kenya; and that the applicant could still enjoy family life with her mother to the same extent as before. In the Court’s view, however, the fact that the applicant’s mother did not visit the applicant in Kenya, or that mother and child apparently had very limited contact for four years, can be explained by various factors, including practical and economical restraints, and can hardly lead to the conclusion that the applicant and her mother did not wish to maintain or intensify their family life together.


52.  The Government denied that there had been interference with the applicant’s rights under Article 8. They made the point first of all that, in guaranteeing the right to  <mask>, Article 8 presupposed the existence of a “family”. That concept encompassed on the one hand the relationship established by marriage and on the other the relationship between parents and their children. In particular, the latter relationship did not necessarily attract the protection of Article 8 without evidence of further elements of dependency. In the Government’s view, the applicant had not provided evidence of a specific bond of dependency between herself and her adult son. The Government further submitted that, in immigration matters, Article 8 did not entail any general obligation on the part of the State to allow family reunification within its territory.


61.  The Government submitted that the decision rendered by the domestic courts did not constitute an interference with the applicant’s right to  <mask>. In any event, even if the Hague Convention proceedings did amount to an interference with the applicant’s family life, that interference had a legal basis, namely Article 13 § 2 of the Hague Convention. It had also served the legitimate aim of protecting the children’s best interests.


57.  The Government contested that argument. They argued that whereas the decision of 24 October 2011 had constituted an interference into the applicant’s right to  <mask>, it had been in accordance with the law, as it was based on the Foreigners Act and the Code of Administrative Offences. Furthermore, it was proportionate and “necessary in a democratic society” for the following reasons.


34.  The applicant alleged that the revocation of her residence permit had adversely affected her right to  <mask>, as it had deprived her of any legal basis to remain in Russia, made her liable to deportation with a five-year re-entry ban and disrupted her family life with her husband and minor child in Russia. She further submitted that the judicial review of the impugned measure by the domestic courts had not been attended by adequate procedural safeguards, as it had been limited in scope, had not been adversarial and had taken place after the measure had been carried out. Moreover, the courts had not conducted a meaningful balancing exercise between the national security interests and her right to respect for family life.


40.  The applicant claimed that there had been a continuing violation of his right to  <mask>. He had repeatedly instituted several sets of proceedings aimed at providing him with a possibility to have regular contacts with his son. Despite the fact that two court orders had been issued, none of them gave the applicant an effective opportunity to meet his son. He concluded that there had been a violation of Article 8 in this respect.


39.  The Government considered that the AIT was correct to conclude that deportation would not interfere with the applicant’s right to  <mask>. They accepted, however, that deportation would constitute an interference with the applicant’s right to respect for his private life but contended that the extent of the interference was limited. In particular, after deportation the applicant would be able to maintain his relationships with friends and family in the United Kingdom and would be able to continue attending church in Nigeria.


57.  The applicants complained that the Migration Court of Appeal’s decision not to grant the first, second and fourth applicants residence permits was in breach of Article 8 of the Convention. They argued that although the third applicant was to be considered legally an adult, his health and development were at such a stage that he still had a right to  <mask> with his parents.


154.  The applicants complained that the search of their house carried out by Russian servicemen on 20 July 2004 breached their right to respect for their home. The fifth, seventh, eighth and tenth applicants complained that the killing of their father breached their right to  <mask>. They relied on Article 8 of the Convention, which reads, in so far as relevant, as follows:


42.  The Government submitted that Article 14 was not applicable in the present case. In their view, in S. v. the United Kingdom (no. 11716/85, Commission decision of 14 May 1986, Decisions and Reports (DR) 47, p. 274) and Röösli v. Germany (no. 28318/95, Commission decision of 15 May 1996), the Commission had indicated that the protection of the family was a legitimate aim capable of justifying a difference in treatment and that a stable homosexual relationship between two men did not fall within the scope of the right to  <mask> guaranteed by Article 8 of the Convention. The Commission had also found that the deportation of an alien who was in a same-sex relationship with a person in the host State did not amount to an interference with the right guaranteed by that provision (see X and Y v. the United Kingdom, no. 9369/81, Commission decision of 3 May 1983, DR 32, p. 223; W.J. and D.P. v. the United Kingdom, no. 12513/86, Commission decision of 13 July 1987; and C. and L.M. v. the United Kingdom, no. 14753/89, Commission decision of 9 October 1989).


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  <mask>. 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 embrace 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.


99.  The applicants submitted that they had no effective remedy for their above-mentioned complaints. The local authority complaints' mechanism and local government ombudsman had already been found by the Court not to be effective remedies in these circumstances (T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, ECHR 2001‑V (extracts)). They saw no reason why the courts should not have recognised a duty of care as existing before the Human Rights Act 1998 came into force and submitted that their approach violated the applicants' Convention rights. They also pointed out that, even following the Human Rights Act, its provisions could not help parents who had to rely on the law of negligence as opposed to section 7 to vindicate their Convention rights. As regards the second applicant, it was not necessary to show damage in order to be a victim; therefore, in order for Article 8 to have been violated, it was not necessary to show the very specific kind of clinically diagnosed psychiatric damage required in English law. He had been entitled to a determination that the local authority had breached his right to  <mask> and also the possibility of obtaining an enforceable award for compensation, yet because he could not demonstrate a recognised psychiatric disorder, he was unable even to obtain a determination that his rights had been violated. This deprived him of access to an effective remedy.


32.  The applicants complained that the German authorities had violated their right to  <mask> as provided in Article 8 of the Convention by withdrawing parts of parental authority (Entzug von Teilen des elterlichen Sorgerechts) – including the right to determine the children’s place of residence (Aufenthaltsbestimmungsrecht) –, by transferring these parts to the youth office and by executing the withdrawal in the form of forcibly removing the children from the applicants and placing them in a children’s home for three weeks. Article 8 reads as follows:


111.  The Government submitted that the applicant’s complaints under Article 6 § 1 of the Convention were intrinsically linked to her complaint about her right to  <mask>, and thus did not merit a separate examination. The Government also pointed out that the applicant had not raised the issue of the absence of an oral hearing before the Supreme Court, and thus this complaint was inadmissible for failure to exhaust domestic remedies.


38.  The Government noted that the respondent State's positive obligation, which was inherent in the effective  <mask>, was not absolute. Referring to the Court's case-law, they admitted that domestic measures hindering the mutual enjoyment by parent and child of each other's company amounted to an interference with the rights under Article 8 of the Convention. Such interference constituted a violation of that provision unless it was “in accordance with law”, pursued an aim or aims that were legitimate under paragraph 2 of Article 8 and could be regarded as “necessary in a democratic society”. The Government further stressed that in assessing whether or not a refusal of access to the non-custodial parent was in conformity with Article 8, the interests of the child predominated.


43.  The Government then submitted that, while acknowledging that the States enjoyed a margin of appreciation regarding the protection of the traditional family, in 2010 the Court had started examining under Article 8 of the Convention forms of cohabitation between same-sex couples (see, inter alia, Kozak v. Poland, no. 13102/02, 2 March 2010). In the case of Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010) the Court had acknowledged that same-sex couples could rely on their right to  <mask>, but pointed out that the Convention did not guarantee them the right to marry. It had also observed that where a State chose to provide same-sex couples with an alternative means of recognition, it enjoyed a certain margin of appreciation as regards the exact status conferred (see, inter alia, Gas and Dubois v. France, no. 25951/07, § 66, ECHR 2012).


33.  The Government considered that the applicant had only lawfully lived in Lithuania since 12 March 2001, when he had been issued with a visa. That is to say, he and his wife had only lawfully lived together for slightly more than a year before the authorities decided not to renew his residence permit. Given the short time the applicant had spent in Lithuania, he could not have developed close personal, social and economic ties in the country. The applicant’s wife was a Lithuanian citizen and, in her passport, her nationality was indicated as Lithuanian, not Armenian. Moreover, when the Migration Department adopted the decision to deport the applicant to Azerbaijan, there had been no military conflict with Armenia, that conflict having ended in 1994. Therefore it was possible to preserve the family unit by establishing the family’s residence in Azerbaijan. It follows that the applicant’s deportation to Azerbaijan had not interfered with his right to  <mask>.


28.  The applicants contended that the proceedings in Romania had resulted in an interference with their rights to  <mask>. In particular, the applicants argued that the hearings and the drafting of the Romanian courts’ judgments had taken an excessive length of time, in breach of the Hague Convention. The Bucharest County Court had postponed the enforcement of its judgement for three months and the written version of that judgment was rendered three months after its delivery, leaving the applicants unable to appeal during this period. The overall length of the proceedings had thus largely exceeded the six weeks provided for under the Hague Convention and the Regulation.


21.  The applicant submitted that he had been treated differently due to his religious convictions in respect of the enjoyment of his rights under Article 8 of the Convention from other persons seeking access rights to their children following divorce or separation. In particular, he submitted that the domestic authorities’ decision withdrawing his access rights in respect of his son on the basis of his religious beliefs had amounted to an unjustifiable interference with his right to  <mask>.


24.  The applicant complained that he had been denied both short and long-stay visits during his time in the Khabarovsk remand prison and that, in the IK-56 facility, the number of visiting family members had been limited to two adults and short visits were conducted in the presence of a prison officer through a glass partition. The Court has established that denial of visits, separation barriers and other restrictive arrangements amount to an interference with the right to  <mask> (see Moiseyev v. Russia, no. 62936/00, § 247, 9 October 2008, and Andrey Smirnov v. Russia, no. 43149/10, § 38, 13 February 2018). It remains to be seen whether they were applied “in accordance with the law”, pursued one or more of the legitimate aims listed in paragraph 2 and, in addition, were “necessary in a democratic society”.


135.  The applicants alleged that the disappearance of their relative had amounted to a violation of their right to  <mask>. They also complained that the search carried out at their house on 11 January 2003 had been illegal and constituted a violation of their right to respect for their home. It thus disclosed a violation of Article 8 of the Convention. They also referred to the unlawful seizure of their property during the search and relied on Article 1 of Protocol No. 1 to the Convention. These Articles provide as follows:


31.  The applicant argued that the decision to revoke his permanent residence permit and to order his expulsion constituted a disproportionate interference with his right to  <mask>. He submitted that the criminal courts were of the opinion that the homicide he committed and his guilt were not serious as they sentenced him to five years and three months’ imprisonment while the maximum penalty possible was twenty years’ imprisonment. Moreover, he was twenty years old at the time he committed that offence on which the expulsion order was mainly based. The circumstances of the offence, a car race, were typical of an offence committed by adolescents. He claimed that he had matured since, also due to a therapy he underwent and relied on expert reports stating that there was a low risk that he would reoffend. The applicant emphasised that he had not offended in the years between the commission of the offence in 2000 and the commencement of his prison sentence in 2006 and that he served his sentence in a semi-custodial regime (offener Vollzug). All of these factors bore testimony to the fact that he did not constitute a threat to public safety. He also argued that the length of time between the commission of the offences in 2000 and the first service of the expulsion order in 2009 had to be taken into account.


19.  The applicant alleged a violation of his right to  <mask> on account of the lack of practical opportunities for prison visits stemming from the decision to allocate him to a remote penal facility and his subsequent inability to obtain a transfer elsewhere. He relied on Article 8 of the Convention, which reads, in so far as relevant, as follows: